1. The application before the court for determination is the Notice of Motion dated 15th July, 2025, expressed to be brought pursuant to the provisions of sections 1, 1A, 1B, and 3A of the Civil Procedure Act and Order 42 Rule 6.
The application seeks for orders that;
(a) The honourable court do issue stay for orders to combine file No. KISUMU CMC E& L CASE NO.E053 OF 2022 and file No.E108 OF 2022 made on 6th May, 2025, pending hearing and determination of the appeal.
(b) Pending hearing and determination of the appeal, the court do issue an order of stay of execution of orders ruling issued in KISUMU CMC NO.E108 OF 2022 on 9th October, 2024.
(c) Pending the hearing and determination of the appeal, the court grants leave to file an appeal out of time against the original judgment in Kisumu CMC E053 OF 2022 AND E108 OF 2022.
(d) That there be no orders as to costs.
2. The grounds upon which the application is brought are that the two cases form one family dispute against purchasers. That case No. E053 of 2022 was determined on 14th September 2023, and the Applicant did not prefer an appeal.
That the Case No.108 was determined by way of an application for summary judgment ruling on 9th October, 2024, and that the Applicant only noticed the orders when the Respondent started executing. That an application to set aside the judgment was declined.
That the ex parte orders were illegal and have caused some parties to suffer prejudice. The application was supported by the averment in the Affidavit in support sworn by the 1st Applicant on 15th July, 2025.
3. The application was opposed by the 1st Respondent vide the grounds of opposition dated 30th September, 2025.
4. The 4th Respondent filed a Replying Affidavit sworn on 14th October, 2025, also opposing the application.
5. I have considered the application, the responses thereto, and the submissions filed. The first relief sought is stay of the court orders made on 6th May, 2025. To the Supporting Affidavit, the Applicant annexed a copy of the ruling dated 6th May, 2025, in Case No.E053 of 2022. It is clear from the ruling that it was in respect of an application dated 27th January, 2025 that sought for consolidation of Case No.E053 and 108 both of 2022, the application also sought for suspension of all proceedings, rulings, judgements and existing orders pending hearing and determination of the application; the application also sought as an alternative remedy, review of orders.
The court vide the ruling dismissed the application and ordered each party to bear own costs of the application.
This was a negative order, which is incapable of execution, hence an order of stay of execution is not applicable.
6. The next relief sought is for an order of stay of execution of orders issued on 9th October, 2024, in Case No.108 of 2022.
The Applicant did not exhibit the ruling dated 9th October, 2024, for the court’s perusal and appreciation.
As matters stand, the court does not know the content of the ruling and is therefore unable to issue any orders regarding the same.
7. Regarding the prayer for leave to appeal out of time, the grounds for allowing an application to appeal out of time are inter alia that the proposed Appellant should explain to the satisfaction of the court why the appeal was not filed within time and demonstrate that the proposed appeal is arguable. The explanation for failure to file the appeal in time herein is that the decisions sought to be appealed against were made without the knowledge of the Applicants.
The decision sought to be appealed against out of time are the original judgments in Kisumu CMC E053 of 2022 and KISUMU CMC E108 also of 2022.
A copy of the judgment in respect of KISUMU CMC ELC CASE NO.E053 of 2022 was attached to the Replying Affidavit of the 4th Defendant. It shows that the same was delivered on 14th September, 2024, in the presence of the 1st Defendant and the Interested Party. The Interested Party in the suit was the Applicant herein. It cannot, therefore, be true that the applicants were not aware of the delivery of the decisions. No plausible explanation has been tendered why the appeal against the said judgment was not filed in time.
In respect of the judgment in Case No. E108 OF 2022, no documents have been exhibited herein to show who the parties were and what the judgment was. There is no explanation why the appeal was not filed in time.
Further, the appeal herein is against the ruling dated 6th May, 2025, and the Memorandum of appeal dated 16th May, 2025, in respect thereof was filed on 19th May, 2025, which was within time.
I find that the grounds for the grant of the relief sought have not been demonstrated. The application is dismissed.
Each party to bear own costs of the application.
Orders accordingly.
Ruling dated and signed at Kisumu and delivered this 19th day of March, 2026, virtually through Microsoft Teams Online Application.
E. ASATI,
JUDGE.
In the presence of:
Maureen: Court Assistant.
The 1st Applicant present in person.
Nyambeki for the 1st Respondent.
The 2nd Respondent present in person.
P. D. Onyango for the 4th Respondent.
| ELC LA E038/2025 RULING 2 |