1. By a decision delivered on 16th May 2025, the High Court found that the defendant had defamed the plaintiff and awarded the plaintiff Kes 8,000,000/- as general damages for libel and 1,000,000/- as aggravated damages. These amounts attract interest at court rates from the date of delivery of the Judgment until payment in full.
2. About 4 months after the court's decision was delivered, the defendant filed the application dated 12th September 2025, by which he seeks to file the Notice of Appeal out of time, to obtain a stay of execution of the judgment pending appeal, and to have costs provided for.
3. The defendant stated that his counsel was notified of the judgment late, vide a notice dated 20th August 2025, sent by email on 27th August 2025.
4. The application is opposed. Counsel for the plaintiff filed a preliminary objection dated 3rd October 2025 and a replying affidavit sworn on 6th October 2025, in which it was stated that the judgment date was taken by consent and in the presence of both parties' counsel on 11th April 2025. It was urged that the 4-month delay had not been explained, nor had the defendant offered security for the due performance of the decree. It was urged, on a non-prejudiced basis, that an inhibition be placed on Title No. Kwale/Galu/Kinondo/240 regarding the defendant's share of the said property if the court was minded to stay the execution of the judgment pending appeal.
5. The application was canvassed by way of written submissions. I will refer to the parties' submissions below. This application, it must be noted, is a fairly straightforward one for a stay pending appeal.
6. The submissions of the defendant are dated 3rd November 2025. Counsel for the defendant identified the issues for determination as being:-
i Whether the conditions for leave to appeal out of time had been met; and
ii Whether the applicant is entitled to the relief sought?
7. It was submitted that the delay was caused by miscommunication between the judiciary and the defendant's counsel, and by the need for the counsel to obtain instructions from Mr Ochs, who was indicated to be sickly. It was urged that the reasons for the delay are genuine and excusable. Counsel urged that the appeal is arguable and that no prejudice would be caused to the plaintiff.
8. Counsel for the defendant urged, relying on Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] KECA 701 (KLR) and ANTOINE NDIAYE v AFRICAN VIRTUAL UNIVERSITY [2008] KEHC 968 (KLR), that I should allow the application.
9. The plaintiff’s counsel’s submissions are dated 10th November 2025. Vide the said submissions, it was urged that the application had no merit and should be dismissed.
10. I have considered the application, the response thereto, and the parties’ submissions. I have also perused the court file. I note that the original date for delivery of the judgment was 30th January 2025. That date was given in the presence of Ms Njogu for the defendant. The judgment wasn’t delivered on that date. On 12th May 2025, the court, on its own motion, in the absence of the parties, set down the matter for judgment on 16th May 2025. The judgment was delivered in the presence of Mr Buyengo on 16th May 2026. There was no representation for the defendant. That being the case, it appears to me that the defendant’s assertion that his counsel was unaware of the judgment until the plaintiff served them with notice of entry of judgment is plausible, while the plaintiff’s assertion that the judgment date was given in the presence of both parties is false and misleading.
11. On the basis of the above finding, I am satisfied that a cogent, satisfactory explanation for the delay has been made.
12. In the case of Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR), held by the Supreme Court that:
“…Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court; A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis; Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court; Whether there will be any prejudice suffered by the respondents if the extension is granted; Whether the application has been brought without undue delay; and whether, in certain cases, like election petitions, public interest should be a consideration for extending time…”
13. Similarly, in the case of Leo Sila Mutiso vs Rose Hellen Wangari Mwangi, Civil Application No. 251 of 1997, the court expressed itself as follows:-
“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well stated that in general the matters which this Court takes into account in deciding whether to grant an extension of time, are first, the length of the delay, secondly, the reason for the delay, thirdly (possibly) the chances of the appeal succeeding if the application is granted, and fourthly, the degree of prejudice to the respondent if the application is granted.”
14. The appeal appears to me to be arguable, and since a cogent and believable account for the delay has been given, I have no doubt that the application for leave to appeal out of time has merit and should be allowed.
15. What of staying the execution of the judgment pending appeal? There is no appeal at the moment. Order 42 Rule 6 of the Civil Procedure Rules contemplates an existing appeal. There being no appeal, I am unable to issue a stay pending the hearing of a non-existent appeal. In the circumstances, I decline to allow a prayer to that effect.
16. In the circumstances, the orders that commend themselves to me are the following:
1. Leave to appeal out of time is hereby granted. The defendant/applicant shall file and serve a Notice of Appeal within 14 days of the date of this order;
2. Prayer for stay pending appeal is denied as no appeal currently exists; and
3. Parties shall bear their own costs of the application.
17. It is so ordered.
Dated and signed at Nairobi, this 19th day of June 2026.
2. About 4 months after the court's decision was delivered, the defendant filed the application dated 12th September 2025, by which he seeks to file the Notice of Appeal out of time, to obtain a stay of execution of the judgment pending appeal, and to have costs provided for.
3. The defendant stated that his counsel was notified of the judgment late, vide a notice dated 20th August 2025, sent by email on 27th August 2025.
4. The application is opposed. Counsel for the plaintiff filed a preliminary objection dated 3rd October 2025 and a replying affidavit sworn on 6th October 2025, in which it was stated that the judgment date was taken by consent and in the presence of both parties' counsel on 11th April 2025. It was urged that the 4-month delay had not been explained, nor had the defendant offered security for the due performance of the decree. It was urged, on a non-prejudiced basis, that an inhibition be placed on Title No. Kwale/Galu/Kinondo/240 regarding the defendant's share of the said property if the court was minded to stay the execution of the judgment pending appeal.
5. The application was canvassed by way of written submissions. I will refer to the parties' submissions below. This application, it must be noted, is a fairly straightforward one for a stay pending appeal.
6. The submissions of the defendant are dated 3rd November 2025. Counsel for the defendant identified the issues for determination as being:-
i Whether the conditions for leave to appeal out of time had been met; and
ii Whether the applicant is entitled to the relief sought?
7. It was submitted that the delay was caused by miscommunication between the judiciary and the defendant's counsel, and by the need for the counsel to obtain instructions from Mr Ochs, who was indicated to be sickly. It was urged that the reasons for the delay are genuine and excusable. Counsel urged that the appeal is arguable and that no prejudice would be caused to the plaintiff.
8. Counsel for the defendant urged, relying on Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] KECA 701 (KLR) and ANTOINE NDIAYE v AFRICAN VIRTUAL UNIVERSITY [2008] KEHC 968 (KLR), that I should allow the application.
9. The plaintiff’s counsel’s submissions are dated 10th November 2025. Vide the said submissions, it was urged that the application had no merit and should be dismissed.
10. I have considered the application, the response thereto, and the parties’ submissions. I have also perused the court file. I note that the original date for delivery of the judgment was 30th January 2025. That date was given in the presence of Ms Njogu for the defendant. The judgment wasn’t delivered on that date. On 12th May 2025, the court, on its own motion, in the absence of the parties, set down the matter for judgment on 16th May 2025. The judgment was delivered in the presence of Mr Buyengo on 16th May 2026. There was no representation for the defendant. That being the case, it appears to me that the defendant’s assertion that his counsel was unaware of the judgment until the plaintiff served them with notice of entry of judgment is plausible, while the plaintiff’s assertion that the judgment date was given in the presence of both parties is false and misleading.
11. On the basis of the above finding, I am satisfied that a cogent, satisfactory explanation for the delay has been made.
12. In the case of Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR), held by the Supreme Court that:
“…Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court; A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis; Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court; Whether there will be any prejudice suffered by the respondents if the extension is granted; Whether the application has been brought without undue delay; and whether, in certain cases, like election petitions, public interest should be a consideration for extending time…”
13. Similarly, in the case of Leo Sila Mutiso vs Rose Hellen Wangari Mwangi, Civil Application No. 251 of 1997, the court expressed itself as follows:-
“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well stated that in general the matters which this Court takes into account in deciding whether to grant an extension of time, are first, the length of the delay, secondly, the reason for the delay, thirdly (possibly) the chances of the appeal succeeding if the application is granted, and fourthly, the degree of prejudice to the respondent if the application is granted.”
14. The appeal appears to me to be arguable, and since a cogent and believable account for the delay has been given, I have no doubt that the application for leave to appeal out of time has merit and should be allowed.
15. What of staying the execution of the judgment pending appeal? There is no appeal at the moment. Order 42 Rule 6 of the Civil Procedure Rules contemplates an existing appeal. There being no appeal, I am unable to issue a stay pending the hearing of a non-existent appeal. In the circumstances, I decline to allow a prayer to that effect.
16. In the circumstances, the orders that commend themselves to me are the following:
1. Leave to appeal out of time is hereby granted. The defendant/applicant shall file and serve a Notice of Appeal within 14 days of the date of this order;
2. Prayer for stay pending appeal is denied as no appeal currently exists; and
3. Parties shall bear their own costs of the application.
17. It is so ordered.
Dated and signed at Nairobi, this 19th day of June 2026.