1. Before this Court for determination is the Notice of Motion application dated 2nd September 2025 filed pursuant to Sections 1A, 1B, 3 and 3A of the Civil Procedure Act, Order 10 Rule 11 and Order 42 Rule 6 and Order 51 of the Civil Procedure Rules and Article 159 of the Constitution of Kenya.
2. The applicant seeks leave to file an Appeal out of time against the Ruling and Orders of Hon. Dennis Waweru Mbuteti delivered on 30th January 2025 in Limuru CMCC No. E106 of 2023. The applicant also seeks to set aside, vacate or lift the orders for stay of proceedings issued in Limuru CMCC No. E106 of 2023 and direct the said suit to be set down for hearing and determination on its merits.
3. The application is premised on the grounds as set out on the face of it, and the supporting affidavit of Ms Achieng Stacey, the applicant’s Advocate, sworn on 2nd September 2025. She stated that the applicant filed Limuru CMCC No. E106 of 2023 through a Plaint dated 6th April 2025, and that prior to the hearing of the suit, the respondent filed an application which was allowed in the Ruling of 30th January 2025, granting stay of proceedings, pending the outcome of a complaint filed at the Kenya Medical Practitioners and Dentists Council (KMPDC), being Disciplinary Case No. 28 of 2023. Ms Achieng contended that the KMPDC has failed and/or neglected to take any steps towards the hearing and determination of the complaint, as there are no directions, and no mention or hearing dates that have been given, despite numerous follow-ups.
4. She averred that the statutory period to file an Appeal has lapsed, but the delay was occasioned by the applicant’s genuine efforts in actively pursuing the complaint with the KMPDC to conclusion, without success.
5. She deposed that the subject matter concerns a minor of tender years whose right to health, development and timely access to justice under Article 53 of the Constitution is being undermined due to the continued stay.
6. She contended that the lower Court erred in staying the proceedings before it, yet the KMPDC’s mandate is limited to professional misconduct and disciplinary standards, and it lacks jurisdiction to determine civil liability, assess damages and grant damages, which powers only lie within a Court. She maintained that the existence of proceedings before a quasi-judicial body does not oust the jurisdiction of the Court, where the remedies sought are beyond the competence of the Tribunal.
7. Ms Achieng cited the case of Speaker of National Assembly v Njenga Karume [1992] eKLR, which stated that where there is a clear procedure it should be followed. She also cited the case of Republic v Kenya Revenue Authority exparte Aberdare Freight Services Ltd [2004] eKLR, which held that the presence of an administrative forum does not bar the Court’s jurisdiction. She referenced the case of Cortec Mining Kenya Ltd v Cabinet Secretary, Ministry of Mining & 9 others [2017] eKLR, which held that administrative bodies cannot usurp judicial authority.
8. She averred that the existence of proceedings before an administrative body cannot preclude a Court from hearing a matter, in which the Court has jurisdiction.
9. She contended that the prolonged stay is prejudicial to the applicant and there is need for this Court to grant leave to the applicant to file an Appeal out of time and to lift the orders for stay of proceedings in place. She maintained that the intended Appeal has high chances of success as seen in the draft Memorandum of Appeal, and that it raises fundamental issues of jurisdiction and access to justice. She urged this Court to grant the orders being sought herein, in the interest of justice.
10. The respondent opposed the application through the replying affidavit sworn on 22nd October 2025 by Ms Peris Wanjiku, its Legal Manager. She admitted that the respondent filed an application which was disposed of, by way of written submissions and the Court in a Ruling delivered on 30th January 2025, allowed it. She averred that the lower Court held that the KMPDC’s mandate is to determine whether or not the respondent is liable and/or was negligent, before the Court can determine the damages payable. She argued that the decision of the KMPDC shall provide guidance in the judgment of the Court, on the issue of liability. She averred that the orders for stay of proceedings are not prejudicial to the minor plaintiff’s right to health and development, or timely access to justice, as he was treated and discharged from the respondent hospital in good health before institution of the suit in issue.
11. Ms Wanjiku deposed that the Ruling of the Trial Court did not imply that its jurisdiction was ousted by the existence of the proceedings before the KMPDC, but the said Ruling emphasized that the respondent has a right to be heard by the KMPDC before the Trial Court makes a determination on the issue of damages. She stated that the said Court had minded the fact that the KMPDC is mandated to determine professional misconduct and disciplinary standards of medical practitioners which is under contention in the suit, but it does not mean the Court downed its tools. She blamed the applicant for waiting for ten (10) months before expressing intention to appeal without any reasonable justification for the indolence which also shows that he was satisfied with the Ruling and is now estopped from attempting to flee the jurisdiction of the KMPDC.
12. She stated that the delay by the KMPDC to hear the complaint is not a reason to seek this Court’s indulgence to extend time to file an Appeal. She contended that it is an afterthought for the applicant to file the instant application. She urged this Court to dismiss the application, as the respondent will stand to suffer prejudice if the application is allowed, as it shall be subjected to two concurrent proceedings.
13. The applicant filed an undated further supporting affidavit sworn by Ms Achieng. She maintained that the applicant has not been indolent as she has been persistently seeking hearing dates from the KMPDC to no avail for one year, and is left with no option but to seek this Court’s intervention. She reiterated that the proceedings by the Council are disciplinary in nature, but it cannot grant the compensatory remedies sought by the applicant. She cited the case of Kenya Medical Practitioners &w Dentists Council v Prof. Stanley Kiplagat Arap Sugut [2018] eKLR, which supported the said position
14. She deposed that the doctrine of exhaustion is not absolute and where the statutory mechanism is ineffective or causes delay, a party may approach the Court. She cited the cases of Republic v National Environment Management Authority exparte Sound Equipment Ltd [2011] eKLR and Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 others eKLR, to bolster her submissions.
15. Ms Achieng argued that the continued stay of proceedings is prejudicial to the applicant, thereby causing delay in administration of justice, which is contrary to Article 159(2)(b) of the Constitution.
16. She stated that there will be no parallel or concurrent proceedings, as Court proceedings are distinct with a different mandate, scope and reliefs. She contended that having the matter heard will not offend the doctrine of sub judice or amount to an abuse of the Court process. To buttress the said point, she cited the Court of Appeal decision in Thiba Min Hydro Co. Ltd v Josphat Karu Ndwiga [2013] eKLR. She urged this Court to find that stay of proceedings is unmerited and intended to delay the expeditious determination of the lower Court matter.
17. The application herein was canvassed by way of written submissions. The applicant’s submissions dated 9th April 2026, were filed by the law firm of Kinyua Maingi Advocates. The respondent filed submissions dated 20th May 2026 through the law firm of K. Itonga & Company Advocates.
18. Ms Achieng, learned Counsel for the applicant cited the case of Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR), where the Supreme Court addressed the issue of extension of time, in that it is not a right, but an equitable remedy. Counsel stated that she has persistently sought hearing dates from the KMPDC to no avail and the delay in filing the intended Appeal is not out of neglect. She contended that the respondent will not suffer any harm or prejudice.
19. Counsel submitted that the proceedings at the KMPDC do not oust the jurisdiction of the lower Court, as the former relate to disciplinary proceedings, and that the jurisdiction of the Trial Court is on the damages payable. She cited the case of Jagdish Sonigra V Medical Practitioners & Dentists Board & 2 Others [2008] KEHC 3708 (KLR) and Oza & 2 others v David Oluoch Olunya & another [2021] KEHC 6732 (KLR), to support her position. She submitted that the mandate of the KMPDC is provided for under Section 20(6) of the KMPD Act, which is limited to cautions, reprimands, training, probation, suspension or cancellation of licences and fines, which do not deal with civil claims for general and special damages.
20. Ms Achieng submitted that while Courts have the discretion to grant orders for stay of proceedings, such orders should be granted sparingly and upon various considerations as listed in the case of Kenya Power & Lighting Company Limited v Esther Wanjiru Wokabi [2014] KEHC 3174 (KLR), in instances where there is a prima facie arguable case. She further submitted that such applications should be filed expeditiously and only granted in the interest of justice.
21. Mr. Waweru, learned Counsel for the respondent submitted that the applicant’s prayers are ambiguous and contradictory, as they on one hand seek leave to file an appeal out of time and on the other hand seek to vacate or set aside the Orders of the lower Court, that issued stay of proceedings. He submitted that the Notice of Motion application herein was filed pursuant to Order 10 Rule 11 of the Civil Procedure Rules which deals with setting aside of judgment following a party’s non-appearance or failure to file defence, and Order 42 Rule 6 of the said Rules on stay of execution, which are conflicting to the prayers sought, making it defective.
22. Mr. Waweru submitted that the applicant is praying for this Court to sit on appeal through a Miscellaneous Cause, which is contrary to Order 42 Rule 1 of the Civil Procedure Rules, which state that an Appeal commences by way of a Memorandum of Appeal. He asserted that the application is an omnibus one, which the Court of Appeal and the Supreme Court, discouraged in the cases of Boro v Githunguri & 3 others (Suing as Administrators of the Estate of Mugacha Thaara Deceased) [2023] KECA 889 (KLR) and the case of Aviation & Allied Workers Union v Kenya Airways [2015] eKLR, respectively.
23. Counsel stated that the conditions to be considered before granting leave to file an appeal out of time were addressed in the case of Leo Sila Mutiso v. Rose Hellen Wangari Mwangi, CA. No. Nai. 255 of 1997, which was cited in the case of Emmanuel Ngade Nyoka v Kidheka Mutisya Ngata [2016] KECA 393 (KLR).
24. He submitted that the application was filed eight (8) months after delivery of the Ruling in issue, which is inordinate delay, and no sufficient reasons for the said delay have been given by the applicant. He stated that the only reason given, is because of the delay by the KMPDC to hear the complaint. He contended that the applicant has not demonstrated efforts taken to move the KMPDC through letters to its Registry. He stated that there is no proof that the KMPDC refused to hear the complaint as alleged.
25. Mr. Waweru argued that the applicant ought to have filed a Judicial Review matter, seeking orders of mandamus to compel the KMPDC to hear and determine the complaint. He blamed the applicant for forum shopping and filing applications which are an afterthought. He maintained that the application will be highly prejudicial to the respondent, as it will be compelled to defend the trial suit and the complaint before the KMPDC. He urged this Court to dismiss the application.
ANALYSIS AND DETERMINATION
26. I have considered the Notice of Motion application, the supporting affidavit, the replying affidavit and the submissions filed by the parties’ Advocates. The issue for determination is if the applicant should be granted leave to appeal out of time and if this Court should set aside the orders of the Trial Court, so that the suit in the lower Court can be heard and determined.
27. On the issue of leave to appeal out of time, the law is provided for under Section 79G of the Civil Procedure Act, which states that:
“Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order:
Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.”
28. The Court of Appeal in Thuita Mwangi v. Kenya Airways Ltd [2003] eKLR, addressed the various factors which should be considered in allowing an application for leave to appeal out of time-
“i) The period of delay;
ii) The reason for the delay;
iii) The arguability of the appeal;
iv) The degree of prejudice which could be suffered by the if Respondent the extension is granted;
v) The importance of compliance with time limits to the particular litigation or issue; and
vi) The effect if any on the administration of justice or public interest if any is involved.”
29. It is common ground that the impugned Ruling was delivered on 30th January 2025 and the application was filed about eight (8) months later. The reason for the delay is that the applicant was awaiting the hearing and determination of the matter filed before the KMPDC, but a hearing date was not forthcoming. This Court notes that the foregoing is not evidence of the applicant being aggrieved by the decision of the Trial Court, but the delay occasioned by the KMPDC, in determining the matter before it. It is my finding that there was inordinate delay in filing the application seeking leave to Appeal out of time.
30. On the second issue, the applicant prays orders for setting aside of the lower Court’s Ruling which stayed the hearing and determination of the suit, pending the outcome of the hearing at the KMPDC. The prayer is grounded on the same reason, on delay on the part of the said KMPDC to hear and determine the complaint. This Court has gone through the affidavits sworn by Ms Achieng in support of the application and inasmuch as she blamed the KMPDC for delay in fixing the matter for hearing, there is no evidence attached to her affidavit to show the efforts taken to fix a date either through letters or calls to its Registry, or particulars of physical visits in an attempt to fix a date for the matter.
31. The applicant prays for this Court to set aside the orders for stay of proceedings issued by the Trial court. This Court has powers to set aside decisions made in a Court’s exercise of its discretion, if certain conditions are met. The Court is guided by the case of Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KECA 175 (KLR) which cited the case of Carl Ronning v Societes Navale Chargeurs Delmas Vieljeux (The Francois Vieljeux) [1984] KLR 1, which held as follows-
“an appellate court may only interfere with the exercise of judicial discretion if satisfied either;
(a) The judge misdirected himself on law, or
(b) That he misapprehended the facts, or
(c) That he took account of considerations of which he should not have taken an account, or
(d) That he failed to take account of consideration of which he should have taken account, or
(e) That his decision, albeit discretionary one, was plainly wrong.
32. This Court finds that there is no evidence that the Trial Court misdirected itself either on the facts or the law in issuing orders for stay of proceedings, as the said orders were granted pending the outcome of the complaint at the KMPDC. There is no evidence exhibited by the applicant that the said KMPDC has refused to hear and determine the matter, and even if it has, there are other avenues which the applicant can channel her grievance, as was pointed out by Counsel for the respondent.
33. As was submitted by the respondent’s Counsel, this Court notes that the applicant relied on the wrong provisions of law, that is Order 42 Rule 6 of the Civil Procedure Rules, which deals with stay of execution and Order 10 Rule 11 of the said Rules, which deals with setting aside judgments. Courts have however time and again taken the position that quoting the wrong provisions of the law is a procedural technicality curable by Article 159(2)(d) of the Constitution. See the decision in Focin Motorcycle Co. Limited v Ann Wambui Wangui & another [2018] KEHC 8358 (KLR), wherein the Court held thus-
“Failure to quote the correct provisions was not fatal as Order 51 rule 10 (1) provides that no application shall be refused by reason of failure to quote the order, rule or other statutory without quoting the provisions. The rule is mandatory. The omission to quote the correct provisions is a technicality which is excusable and which can be cured under Article 159 (2) (d) of the Constitution which provides that:-
“justice shall be administered without undue regard to procedural technicalities.”
Section 1A and 1B Civil Procedure Act urges the Court to strife for substantial justice other than relying on procedural technicalities. My view is that the defects are curable under Article 159 of the Constitution and Section 1A and 1B Civil Procedure Act.”
34. For those reasons, this Court finds that the application though not defective by virtue of quoting the wrong provisions of the law, is not merited. The same is dismissed with costs to the respondent.
It is so ordered.
DATED, SIGNED and DELIVERED at KIAMBU on this 26TH day of JUNE 2026. Ruling delivered through Microsoft Teams Online Platform.
NJOKI MWANGI
JUDGE
In the presence of:-
Ms Achieng for the applicant
Mr. Waweru for the respondent
Ms Julia – Court Assistant.
2. The applicant seeks leave to file an Appeal out of time against the Ruling and Orders of Hon. Dennis Waweru Mbuteti delivered on 30th January 2025 in Limuru CMCC No. E106 of 2023. The applicant also seeks to set aside, vacate or lift the orders for stay of proceedings issued in Limuru CMCC No. E106 of 2023 and direct the said suit to be set down for hearing and determination on its merits.
3. The application is premised on the grounds as set out on the face of it, and the supporting affidavit of Ms Achieng Stacey, the applicant’s Advocate, sworn on 2nd September 2025. She stated that the applicant filed Limuru CMCC No. E106 of 2023 through a Plaint dated 6th April 2025, and that prior to the hearing of the suit, the respondent filed an application which was allowed in the Ruling of 30th January 2025, granting stay of proceedings, pending the outcome of a complaint filed at the Kenya Medical Practitioners and Dentists Council (KMPDC), being Disciplinary Case No. 28 of 2023. Ms Achieng contended that the KMPDC has failed and/or neglected to take any steps towards the hearing and determination of the complaint, as there are no directions, and no mention or hearing dates that have been given, despite numerous follow-ups.
4. She averred that the statutory period to file an Appeal has lapsed, but the delay was occasioned by the applicant’s genuine efforts in actively pursuing the complaint with the KMPDC to conclusion, without success.
5. She deposed that the subject matter concerns a minor of tender years whose right to health, development and timely access to justice under Article 53 of the Constitution is being undermined due to the continued stay.
6. She contended that the lower Court erred in staying the proceedings before it, yet the KMPDC’s mandate is limited to professional misconduct and disciplinary standards, and it lacks jurisdiction to determine civil liability, assess damages and grant damages, which powers only lie within a Court. She maintained that the existence of proceedings before a quasi-judicial body does not oust the jurisdiction of the Court, where the remedies sought are beyond the competence of the Tribunal.
7. Ms Achieng cited the case of Speaker of National Assembly v Njenga Karume [1992] eKLR, which stated that where there is a clear procedure it should be followed. She also cited the case of Republic v Kenya Revenue Authority exparte Aberdare Freight Services Ltd [2004] eKLR, which held that the presence of an administrative forum does not bar the Court’s jurisdiction. She referenced the case of Cortec Mining Kenya Ltd v Cabinet Secretary, Ministry of Mining & 9 others [2017] eKLR, which held that administrative bodies cannot usurp judicial authority.
8. She averred that the existence of proceedings before an administrative body cannot preclude a Court from hearing a matter, in which the Court has jurisdiction.
9. She contended that the prolonged stay is prejudicial to the applicant and there is need for this Court to grant leave to the applicant to file an Appeal out of time and to lift the orders for stay of proceedings in place. She maintained that the intended Appeal has high chances of success as seen in the draft Memorandum of Appeal, and that it raises fundamental issues of jurisdiction and access to justice. She urged this Court to grant the orders being sought herein, in the interest of justice.
10. The respondent opposed the application through the replying affidavit sworn on 22nd October 2025 by Ms Peris Wanjiku, its Legal Manager. She admitted that the respondent filed an application which was disposed of, by way of written submissions and the Court in a Ruling delivered on 30th January 2025, allowed it. She averred that the lower Court held that the KMPDC’s mandate is to determine whether or not the respondent is liable and/or was negligent, before the Court can determine the damages payable. She argued that the decision of the KMPDC shall provide guidance in the judgment of the Court, on the issue of liability. She averred that the orders for stay of proceedings are not prejudicial to the minor plaintiff’s right to health and development, or timely access to justice, as he was treated and discharged from the respondent hospital in good health before institution of the suit in issue.
11. Ms Wanjiku deposed that the Ruling of the Trial Court did not imply that its jurisdiction was ousted by the existence of the proceedings before the KMPDC, but the said Ruling emphasized that the respondent has a right to be heard by the KMPDC before the Trial Court makes a determination on the issue of damages. She stated that the said Court had minded the fact that the KMPDC is mandated to determine professional misconduct and disciplinary standards of medical practitioners which is under contention in the suit, but it does not mean the Court downed its tools. She blamed the applicant for waiting for ten (10) months before expressing intention to appeal without any reasonable justification for the indolence which also shows that he was satisfied with the Ruling and is now estopped from attempting to flee the jurisdiction of the KMPDC.
12. She stated that the delay by the KMPDC to hear the complaint is not a reason to seek this Court’s indulgence to extend time to file an Appeal. She contended that it is an afterthought for the applicant to file the instant application. She urged this Court to dismiss the application, as the respondent will stand to suffer prejudice if the application is allowed, as it shall be subjected to two concurrent proceedings.
13. The applicant filed an undated further supporting affidavit sworn by Ms Achieng. She maintained that the applicant has not been indolent as she has been persistently seeking hearing dates from the KMPDC to no avail for one year, and is left with no option but to seek this Court’s intervention. She reiterated that the proceedings by the Council are disciplinary in nature, but it cannot grant the compensatory remedies sought by the applicant. She cited the case of Kenya Medical Practitioners &w Dentists Council v Prof. Stanley Kiplagat Arap Sugut [2018] eKLR, which supported the said position
14. She deposed that the doctrine of exhaustion is not absolute and where the statutory mechanism is ineffective or causes delay, a party may approach the Court. She cited the cases of Republic v National Environment Management Authority exparte Sound Equipment Ltd [2011] eKLR and Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 others eKLR, to bolster her submissions.
15. Ms Achieng argued that the continued stay of proceedings is prejudicial to the applicant, thereby causing delay in administration of justice, which is contrary to Article 159(2)(b) of the Constitution.
16. She stated that there will be no parallel or concurrent proceedings, as Court proceedings are distinct with a different mandate, scope and reliefs. She contended that having the matter heard will not offend the doctrine of sub judice or amount to an abuse of the Court process. To buttress the said point, she cited the Court of Appeal decision in Thiba Min Hydro Co. Ltd v Josphat Karu Ndwiga [2013] eKLR. She urged this Court to find that stay of proceedings is unmerited and intended to delay the expeditious determination of the lower Court matter.
17. The application herein was canvassed by way of written submissions. The applicant’s submissions dated 9th April 2026, were filed by the law firm of Kinyua Maingi Advocates. The respondent filed submissions dated 20th May 2026 through the law firm of K. Itonga & Company Advocates.
18. Ms Achieng, learned Counsel for the applicant cited the case of Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR), where the Supreme Court addressed the issue of extension of time, in that it is not a right, but an equitable remedy. Counsel stated that she has persistently sought hearing dates from the KMPDC to no avail and the delay in filing the intended Appeal is not out of neglect. She contended that the respondent will not suffer any harm or prejudice.
19. Counsel submitted that the proceedings at the KMPDC do not oust the jurisdiction of the lower Court, as the former relate to disciplinary proceedings, and that the jurisdiction of the Trial Court is on the damages payable. She cited the case of Jagdish Sonigra V Medical Practitioners & Dentists Board & 2 Others [2008] KEHC 3708 (KLR) and Oza & 2 others v David Oluoch Olunya & another [2021] KEHC 6732 (KLR), to support her position. She submitted that the mandate of the KMPDC is provided for under Section 20(6) of the KMPD Act, which is limited to cautions, reprimands, training, probation, suspension or cancellation of licences and fines, which do not deal with civil claims for general and special damages.
20. Ms Achieng submitted that while Courts have the discretion to grant orders for stay of proceedings, such orders should be granted sparingly and upon various considerations as listed in the case of Kenya Power & Lighting Company Limited v Esther Wanjiru Wokabi [2014] KEHC 3174 (KLR), in instances where there is a prima facie arguable case. She further submitted that such applications should be filed expeditiously and only granted in the interest of justice.
21. Mr. Waweru, learned Counsel for the respondent submitted that the applicant’s prayers are ambiguous and contradictory, as they on one hand seek leave to file an appeal out of time and on the other hand seek to vacate or set aside the Orders of the lower Court, that issued stay of proceedings. He submitted that the Notice of Motion application herein was filed pursuant to Order 10 Rule 11 of the Civil Procedure Rules which deals with setting aside of judgment following a party’s non-appearance or failure to file defence, and Order 42 Rule 6 of the said Rules on stay of execution, which are conflicting to the prayers sought, making it defective.
22. Mr. Waweru submitted that the applicant is praying for this Court to sit on appeal through a Miscellaneous Cause, which is contrary to Order 42 Rule 1 of the Civil Procedure Rules, which state that an Appeal commences by way of a Memorandum of Appeal. He asserted that the application is an omnibus one, which the Court of Appeal and the Supreme Court, discouraged in the cases of Boro v Githunguri & 3 others (Suing as Administrators of the Estate of Mugacha Thaara Deceased) [2023] KECA 889 (KLR) and the case of Aviation & Allied Workers Union v Kenya Airways [2015] eKLR, respectively.
23. Counsel stated that the conditions to be considered before granting leave to file an appeal out of time were addressed in the case of Leo Sila Mutiso v. Rose Hellen Wangari Mwangi, CA. No. Nai. 255 of 1997, which was cited in the case of Emmanuel Ngade Nyoka v Kidheka Mutisya Ngata [2016] KECA 393 (KLR).
24. He submitted that the application was filed eight (8) months after delivery of the Ruling in issue, which is inordinate delay, and no sufficient reasons for the said delay have been given by the applicant. He stated that the only reason given, is because of the delay by the KMPDC to hear the complaint. He contended that the applicant has not demonstrated efforts taken to move the KMPDC through letters to its Registry. He stated that there is no proof that the KMPDC refused to hear the complaint as alleged.
25. Mr. Waweru argued that the applicant ought to have filed a Judicial Review matter, seeking orders of mandamus to compel the KMPDC to hear and determine the complaint. He blamed the applicant for forum shopping and filing applications which are an afterthought. He maintained that the application will be highly prejudicial to the respondent, as it will be compelled to defend the trial suit and the complaint before the KMPDC. He urged this Court to dismiss the application.
ANALYSIS AND DETERMINATION
26. I have considered the Notice of Motion application, the supporting affidavit, the replying affidavit and the submissions filed by the parties’ Advocates. The issue for determination is if the applicant should be granted leave to appeal out of time and if this Court should set aside the orders of the Trial Court, so that the suit in the lower Court can be heard and determined.
27. On the issue of leave to appeal out of time, the law is provided for under Section 79G of the Civil Procedure Act, which states that:
“Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order:
Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.”
28. The Court of Appeal in Thuita Mwangi v. Kenya Airways Ltd [2003] eKLR, addressed the various factors which should be considered in allowing an application for leave to appeal out of time-
“i) The period of delay;
ii) The reason for the delay;
iii) The arguability of the appeal;
iv) The degree of prejudice which could be suffered by the if Respondent the extension is granted;
v) The importance of compliance with time limits to the particular litigation or issue; and
vi) The effect if any on the administration of justice or public interest if any is involved.”
29. It is common ground that the impugned Ruling was delivered on 30th January 2025 and the application was filed about eight (8) months later. The reason for the delay is that the applicant was awaiting the hearing and determination of the matter filed before the KMPDC, but a hearing date was not forthcoming. This Court notes that the foregoing is not evidence of the applicant being aggrieved by the decision of the Trial Court, but the delay occasioned by the KMPDC, in determining the matter before it. It is my finding that there was inordinate delay in filing the application seeking leave to Appeal out of time.
30. On the second issue, the applicant prays orders for setting aside of the lower Court’s Ruling which stayed the hearing and determination of the suit, pending the outcome of the hearing at the KMPDC. The prayer is grounded on the same reason, on delay on the part of the said KMPDC to hear and determine the complaint. This Court has gone through the affidavits sworn by Ms Achieng in support of the application and inasmuch as she blamed the KMPDC for delay in fixing the matter for hearing, there is no evidence attached to her affidavit to show the efforts taken to fix a date either through letters or calls to its Registry, or particulars of physical visits in an attempt to fix a date for the matter.
31. The applicant prays for this Court to set aside the orders for stay of proceedings issued by the Trial court. This Court has powers to set aside decisions made in a Court’s exercise of its discretion, if certain conditions are met. The Court is guided by the case of Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KECA 175 (KLR) which cited the case of Carl Ronning v Societes Navale Chargeurs Delmas Vieljeux (The Francois Vieljeux) [1984] KLR 1, which held as follows-
“an appellate court may only interfere with the exercise of judicial discretion if satisfied either;
(a) The judge misdirected himself on law, or
(b) That he misapprehended the facts, or
(c) That he took account of considerations of which he should not have taken an account, or
(d) That he failed to take account of consideration of which he should have taken account, or
(e) That his decision, albeit discretionary one, was plainly wrong.
32. This Court finds that there is no evidence that the Trial Court misdirected itself either on the facts or the law in issuing orders for stay of proceedings, as the said orders were granted pending the outcome of the complaint at the KMPDC. There is no evidence exhibited by the applicant that the said KMPDC has refused to hear and determine the matter, and even if it has, there are other avenues which the applicant can channel her grievance, as was pointed out by Counsel for the respondent.
33. As was submitted by the respondent’s Counsel, this Court notes that the applicant relied on the wrong provisions of law, that is Order 42 Rule 6 of the Civil Procedure Rules, which deals with stay of execution and Order 10 Rule 11 of the said Rules, which deals with setting aside judgments. Courts have however time and again taken the position that quoting the wrong provisions of the law is a procedural technicality curable by Article 159(2)(d) of the Constitution. See the decision in Focin Motorcycle Co. Limited v Ann Wambui Wangui & another [2018] KEHC 8358 (KLR), wherein the Court held thus-
“Failure to quote the correct provisions was not fatal as Order 51 rule 10 (1) provides that no application shall be refused by reason of failure to quote the order, rule or other statutory without quoting the provisions. The rule is mandatory. The omission to quote the correct provisions is a technicality which is excusable and which can be cured under Article 159 (2) (d) of the Constitution which provides that:-
“justice shall be administered without undue regard to procedural technicalities.”
Section 1A and 1B Civil Procedure Act urges the Court to strife for substantial justice other than relying on procedural technicalities. My view is that the defects are curable under Article 159 of the Constitution and Section 1A and 1B Civil Procedure Act.”
34. For those reasons, this Court finds that the application though not defective by virtue of quoting the wrong provisions of the law, is not merited. The same is dismissed with costs to the respondent.
It is so ordered.
DATED, SIGNED and DELIVERED at KIAMBU on this 26TH day of JUNE 2026. Ruling delivered through Microsoft Teams Online Platform.
NJOKI MWANGI
JUDGE
In the presence of:-
Ms Achieng for the applicant
Mr. Waweru for the respondent
Ms Julia – Court Assistant.