REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MAKUENI
CIVIL MISC. APPLICATION NO. E054 OF 2025
BEADAN NGUGI KIMANGIKA ……….…………..….. APPLICANT
VERSUS
DAVID NDOLO KINYATTI alias DAVID NDOLO……RESPONDENT
RULING
1. The application before me is dated 22/7/2025 brought under Section s 1A, 1B, 3A, 79G, & 95 of the Civil Procedure Act and Order 22 Rule 22 of the Civil Procedure Rule, order 42 Rule 6, order 50 Rule 1 of Civil Procedure Rule.
The applicant seeks stay of execution of the judgment delivered in Makindu MCIC E205/2025 on 14/5/2025 together will leave to file the appeal out of time.
The application is supported by the affidavit of Makau Peter the Legal claims officer Britam Insurance Co. Ltd, the applicant insurer, on the grounds that delay in filing the appeal was as a result of his being away on compassionate leave and by the time he came back, time had lapsed.
The application is opposed vide the replying affidavit of David Mwololo Kinyatti, alias David Ndolo – on the ground that there is nothing to stay as no execution has issued – and that in any event the applicant slept on his rights – after obtaining a 30 day stay of execution order from the trial court - that the delay is inordinate.
In addition, that no good reason has been given from the delay – that the applicant has not placed before the court any evidence that he was away on compassionate leave or that he is the only one who could have dealt with the matter.
Further that the application is incompetent as it is supported by the affidavit of a stranger to the matter.
2. The respondent is of the view that he is a man of means – that should the court allow the application to release ½ the decretal sum to him, and the other ½ be deposited in a joint interest earning account in the names of both advocates.
3. The parties filed written submissions which I have considered . The application for enlargement of time will depend on whether the applicant has satisfied the court that there was “ good and sufficient cause” for the failure to file in time.
4. The reasons given in the affidavit are 2 – that the deponent is the only one who review the judgment of the subordinate court for appeal, and he was away on compassionate leave.
5. Reading these depositions begged the questions where is the supporting evidence?
6. The judgment was delivered on 14/5/2025. The application is dated 22/7/2025 - 2 months after the judgment – definitely there was delay and the requirement of the law section 79G of the CPA is that to an appeal will be lodged within 30 days of the judgment. The extension of time will depend on the appellant’s explanation.
7. The applicant has cited inter alia – Thuita Mwangi V Kenya Airways Ltd [2003] eKLR on what the court ought to look at in determining the 1 st issue-
1. The length of delay
2. The reason for the delay
3. (possibly) the chances of appeal succeeding
4. Degree of prejudice that may be suffered by respondent.
The applicant also relies on section 79G of the Civil Procedure Act together with their submissions.
8. The issues for determination are whether the applicant has established a case for leave to file appeal out of time, and if so whether there is a case for stay of execution pending the hearing and determination of the appeal evidence? None was annexed to the affidavit no evidence of being on leave – no document/email nothing/or evidence that he is the only person assigned to the work as deponed and no one else in Britam. Clearly those very important averments are unsupported and they stand without legs.
9. It is these ones that were presented to stand in the space of “good and sufficient cause.” Clearly the reasons given do not account for themselves well to warrant the exercise of the court’s discretion in favour of the applicant. That Application is declined. In those circumstances there would be no need to consider the application for stay of execution orders.
10. Hence the entire application is declined with costs to the respondent
Dated, signed and delivered this 6 th February 2026
Mumbua T. Matheka
Judge
Court Assistant – Mwiwa/Daniel
Counsel for Applicant: Kiruki
Counsel for Respondent: Gicharu
RULING HCC MISC. E054 OF 2025 Page 4 of 4
IN THE HIGH COURT OF KENYA AT MAKUENI
CIVIL MISC. APPLICATION NO. E054 OF 2025
BEADAN NGUGI KIMANGIKA ……….…………..….. APPLICANT
VERSUS
DAVID NDOLO KINYATTI alias DAVID NDOLO……RESPONDENT
RULING
1. The application before me is dated 22/7/2025 brought under Section s 1A, 1B, 3A, 79G, & 95 of the Civil Procedure Act and Order 22 Rule 22 of the Civil Procedure Rule, order 42 Rule 6, order 50 Rule 1 of Civil Procedure Rule.
The applicant seeks stay of execution of the judgment delivered in Makindu MCIC E205/2025 on 14/5/2025 together will leave to file the appeal out of time.
The application is supported by the affidavit of Makau Peter the Legal claims officer Britam Insurance Co. Ltd, the applicant insurer, on the grounds that delay in filing the appeal was as a result of his being away on compassionate leave and by the time he came back, time had lapsed.
The application is opposed vide the replying affidavit of David Mwololo Kinyatti, alias David Ndolo – on the ground that there is nothing to stay as no execution has issued – and that in any event the applicant slept on his rights – after obtaining a 30 day stay of execution order from the trial court - that the delay is inordinate.
In addition, that no good reason has been given from the delay – that the applicant has not placed before the court any evidence that he was away on compassionate leave or that he is the only one who could have dealt with the matter.
Further that the application is incompetent as it is supported by the affidavit of a stranger to the matter.
2. The respondent is of the view that he is a man of means – that should the court allow the application to release ½ the decretal sum to him, and the other ½ be deposited in a joint interest earning account in the names of both advocates.
3. The parties filed written submissions which I have considered . The application for enlargement of time will depend on whether the applicant has satisfied the court that there was “ good and sufficient cause” for the failure to file in time.
4. The reasons given in the affidavit are 2 – that the deponent is the only one who review the judgment of the subordinate court for appeal, and he was away on compassionate leave.
5. Reading these depositions begged the questions where is the supporting evidence?
6. The judgment was delivered on 14/5/2025. The application is dated 22/7/2025 - 2 months after the judgment – definitely there was delay and the requirement of the law section 79G of the CPA is that to an appeal will be lodged within 30 days of the judgment. The extension of time will depend on the appellant’s explanation.
7. The applicant has cited inter alia – Thuita Mwangi V Kenya Airways Ltd [2003] eKLR on what the court ought to look at in determining the 1 st issue-
1. The length of delay
2. The reason for the delay
3. (possibly) the chances of appeal succeeding
4. Degree of prejudice that may be suffered by respondent.
The applicant also relies on section 79G of the Civil Procedure Act together with their submissions.
8. The issues for determination are whether the applicant has established a case for leave to file appeal out of time, and if so whether there is a case for stay of execution pending the hearing and determination of the appeal evidence? None was annexed to the affidavit no evidence of being on leave – no document/email nothing/or evidence that he is the only person assigned to the work as deponed and no one else in Britam. Clearly those very important averments are unsupported and they stand without legs.
9. It is these ones that were presented to stand in the space of “good and sufficient cause.” Clearly the reasons given do not account for themselves well to warrant the exercise of the court’s discretion in favour of the applicant. That Application is declined. In those circumstances there would be no need to consider the application for stay of execution orders.
10. Hence the entire application is declined with costs to the respondent
Dated, signed and delivered this 6 th February 2026
Mumbua T. Matheka
Judge
Court Assistant – Mwiwa/Daniel
Counsel for Applicant: Kiruki
Counsel for Respondent: Gicharu
RULING HCC MISC. E054 OF 2025 Page 4 of 4