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1. Before me is the Notice of Motion dated 28/2/2025 brought under Sections 1A, 1B and 3A, 79G, & 95 of the Civil Procedure Act and Order 22 Rule 22, Order 42 Rule 6, Order 50 Rule (1) of the Civil Procedure Rules .
2. The applicant seeks leave to file an appeal out of time against the judgement of Hon. E. Kemei delivered on 8/10/2024. The applicant also seeks stay of execution of the judgement in Makueni CMCC E117/2023 pending the hearing and determination of the appeal.
3. The grounds for the application are set on the face of the application - inter alia;
i. That, on 8th October, 2024 the chief Magistrate’s court (Hon. Jekosgei Kemei) delivered a judgement in Makueni MCCC No. 116 of 2023 and Makueni MCCC NO. E117 of 2023, where the court awarded the plaintiff damages of Kshs. 3,557,670 and Kshs. 1,831,735 respectively plus costs and interest.
ii. That the insurer’s legal officer responsible for giving instructions was away on compassionate leave and therefore unable to give instructions to appeal on time.
iii. That by time the legal officer was resuming work; the period of stay had already lapsed.
iv. That delay in filing the appeals is inadvertent and excusable due to the fact the legal officer authorized to review judgements and issue instructions was away on compassionate leave.
v. That the applicant stands to suffer substantial loss if the application herein is not allowed as the respondents will proceed with the process of execution.
vi. That the applicant is willing to abide by any reasonable and just condition that this honourable court may impose in allowing the application.
4. The application is supported by the affidavit of Makau Peter, the legal officer Britam General Insurance Company Ltd, the Applicant’s Insurer. He reiterates the grounds on the face of the application – deponing that indeed he was away on compassionate leave when the judgement was delivered, and only got on it upon his resuming duty in 2025.
5. He has annexed an email dated 25/2/2025 instructing him to appeal the decision in Makueni E116 and 117/2023. He has annexed the memorandum of Appeal in each of the files in which he expresses dissatisfaction with the assignment of liability.
6. In the Memorandum of Appeal he seeks that the liability upon the plaintiff be increased, the award on general damages be set aside and/or reduced.
7. I did not see any replying affidavit.
8. The applicant filed written submissions.
9. On the issue of extension of time to file the appeal - the applicant relied on Section 79G and 95 of the Civil Procedure Act and in particular the proviso to Section 79G of the Civil Procedure Act.
“ Provided that an appeal may be admitted out of time if the appellant satisfied the court that he had good and sufficient cause for not filing the appeal in time”
10. And Section 95 of the Civil Procedure Act which speaks to the discretion of the court to enlarge the period fixed /granted by court for “doing any act prescribed or allowed by this Act…”
To support this position he cites, the Court of Appeal in Thuita Mwangi Vs Kenya Airways Ltd [2003] eKLR and Samuel Mwaura Muthumbi Vs Josephine Wanjiru Ngugi & Another [2018] eKLR that where the respondent will not suffer “adverse effects” the court can exercise its discretion in favour of the applicant.
11. It is further submitted that the application has been brought within reasonable time and the applicant has given sufficient reason for delay - and the award of damages is substantial.
12. On the issue of stay of execution pending the hearing of the appeal, the applicant relies on order 42 Rule 6(1) and(2) and National Industrial Credit Bank Ltd Vs Aquinas Francis Wasike & Another [2006] eKLR on the legal duty of the applicant “ to prove the allegation that an appeal will be rendered nugatory because the respondent would be unable to pay back the decretal sum, it is unreasonable to expect such an applicant to know in detail the resources owned by the respondent or lack of them…”
The court held that once the applicant raised that fear, it was upon the respondent to demonstrate the ability to repay the decretal sum - as that would be information peculiar to his knowledge. Similar sentiments were expressed in James Njega & Another in Samuel Ngetich [2018] eKLR.
13. Having considered all the foregoing, the issue for determination is whether the application has merit.
14. The application appears not to be opposed - however even then the court must satisfy itself as to its merit - the applicant has established sufficient reason for the delay. The respondent has not shown the ability to repay the decretal sum. However the applicant must deposit security for the performance of the decree-
Hence
1. The application for extension of time to file appeal is allowed. The applicant to file and serve the Memorandum of Appeal within 7 days hereof;
2. The record of appeal be filed and served within 30 days hereof.
3. Pending the hearing and determination of the appeal, there be stay of execution of the judgement in both Makueni MCCC 116 and 117/2023 subject to the applicant depositing in court the sum of Kshs. 1.5 million within 30 days hereof.
4. In default of (3) above the stay will lapse and the respondent be and at liberty to execute.
5. Orders accordingly
Dated, signed and delivered via CTS on 27 October 2025
Mumbua T. Matheka
Judge
Court Assistant - Chrispol
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1. Before me is the Notice of Motion dated 28/2/2025 brought under Sections 1A, 1B and 3A, 79G, & 95 of the Civil Procedure Act and Order 22 Rule 22, Order 42 Rule 6, Order 50 Rule (1) of the Civil Procedure Rules .
2. The applicant seeks leave to file an appeal out of time against the judgement of Hon. E. Kemei delivered on 8/10/2024. The applicant also seeks stay of execution of the judgement in Makueni CMCC E117/2023 pending the hearing and determination of the appeal.
3. The grounds for the application are set on the face of the application - inter alia;
i. That, on 8th October, 2024 the chief Magistrate’s court (Hon. Jekosgei Kemei) delivered a judgement in Makueni MCCC No. 116 of 2023 and Makueni MCCC NO. E117 of 2023, where the court awarded the plaintiff damages of Kshs. 3,557,670 and Kshs. 1,831,735 respectively plus costs and interest.
ii. That the insurer’s legal officer responsible for giving instructions was away on compassionate leave and therefore unable to give instructions to appeal on time.
iii. That by time the legal officer was resuming work; the period of stay had already lapsed.
iv. That delay in filing the appeals is inadvertent and excusable due to the fact the legal officer authorized to review judgements and issue instructions was away on compassionate leave.
v. That the applicant stands to suffer substantial loss if the application herein is not allowed as the respondents will proceed with the process of execution.
vi. That the applicant is willing to abide by any reasonable and just condition that this honourable court may impose in allowing the application.
4. The application is supported by the affidavit of Makau Peter, the legal officer Britam General Insurance Company Ltd, the Applicant’s Insurer. He reiterates the grounds on the face of the application – deponing that indeed he was away on compassionate leave when the judgement was delivered, and only got on it upon his resuming duty in 2025.
5. He has annexed an email dated 25/2/2025 instructing him to appeal the decision in Makueni E116 and 117/2023. He has annexed the memorandum of Appeal in each of the files in which he expresses dissatisfaction with the assignment of liability.
6. In the Memorandum of Appeal he seeks that the liability upon the plaintiff be increased, the award on general damages be set aside and/or reduced.
7. I did not see any replying affidavit.
8. The applicant filed written submissions.
9. On the issue of extension of time to file the appeal - the applicant relied on Section 79G and 95 of the Civil Procedure Act and in particular the proviso to Section 79G of the Civil Procedure Act.
“ Provided that an appeal may be admitted out of time if the appellant satisfied the court that he had good and sufficient cause for not filing the appeal in time”
10. And Section 95 of the Civil Procedure Act which speaks to the discretion of the court to enlarge the period fixed /granted by court for “doing any act prescribed or allowed by this Act…”
To support this position he cites, the Court of Appeal in Thuita Mwangi Vs Kenya Airways Ltd [2003] eKLR and Samuel Mwaura Muthumbi Vs Josephine Wanjiru Ngugi & Another [2018] eKLR that where the respondent will not suffer “adverse effects” the court can exercise its discretion in favour of the applicant.
11. It is further submitted that the application has been brought within reasonable time and the applicant has given sufficient reason for delay - and the award of damages is substantial.
12. On the issue of stay of execution pending the hearing of the appeal, the applicant relies on order 42 Rule 6(1) and(2) and National Industrial Credit Bank Ltd Vs Aquinas Francis Wasike & Another [2006] eKLR on the legal duty of the applicant “ to prove the allegation that an appeal will be rendered nugatory because the respondent would be unable to pay back the decretal sum, it is unreasonable to expect such an applicant to know in detail the resources owned by the respondent or lack of them…”
The court held that once the applicant raised that fear, it was upon the respondent to demonstrate the ability to repay the decretal sum - as that would be information peculiar to his knowledge. Similar sentiments were expressed in James Njega & Another in Samuel Ngetich [2018] eKLR.
13. Having considered all the foregoing, the issue for determination is whether the application has merit.
14. The application appears not to be opposed - however even then the court must satisfy itself as to its merit - the applicant has established sufficient reason for the delay. The respondent has not shown the ability to repay the decretal sum. However the applicant must deposit security for the performance of the decree-
Hence
1. The application for extension of time to file appeal is allowed. The applicant to file and serve the Memorandum of Appeal within 7 days hereof;
2. The record of appeal be filed and served within 30 days hereof.
3. Pending the hearing and determination of the appeal, there be stay of execution of the judgement in both Makueni MCCC 116 and 117/2023 subject to the applicant depositing in court the sum of Kshs. 1.5 million within 30 days hereof.
4. In default of (3) above the stay will lapse and the respondent be and at liberty to execute.
5. Orders accordingly
Dated, signed and delivered via CTS on 27 October 2025
Mumbua T. Matheka
Judge
Court Assistant - Chrispol
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