1. Through a Notice of Motion dated 18th March 2026, the Applicants sough for the Orders that:
(i) (spent)
(ii) Stay of execution of the Judgement and Decree by Hon. K.D Ole Keiwa in Milimani CMCC No.7613 of 2008 delivered on 20th January 2026 pending hearing and determination of the Application.
(iii) Stay of execution of the Judgement and Decree by Hon. K.D Ole Keiwa in Milimani CMCC No.7613 of 2008 delivered on 20th January 2026 pending the Applicant’s intended Appeal.
(iv) Leave granted to the Applicants to file an Appeal out of time against the Judgement of Hon. K.D Ole Keiwa in Milimani CMCC No.7613 of 2008 delivered on 20th January 2026 pending hearing and determination of the Application.
(v) Costs of the Application be in the cause.
2. The application was anchored on the grounds on the face of it and a Supporting Affidavit sworn on even date. The Applicants urged the court to consider their application that they were willing to abide by any conditions which the Court will issue.
3. The Respondents strenuously opposed the application. They filed a Replying Affidavit sworn on 13th April 2026 by Penina Oloo, the Respondent’s Counsel. The Learned counsel averred that this will be the 4th Trial in this suit in different courts. She prayed that the motion is bad in law frivolous and an abuse of Court process aimed at delaying the execution process.
4. The application was canvassed by way of written submissions. Parties duly filed their written submissions whose contents have been considered together with the cited authorities.
5. As the application seeks to stay execution of a decree, the law thereto is provided under Order 42 Rule 6 of the Civil Procedure Rules. The conditions are well settled and are that the application be filed timeously, a demonstration of substantial loss likely to occur should stay not be granted and the aspect of security for costs for due performance.
6. I will now apply the above conditions to the matter at hand. On delay, the judgment of the trial Court was delivered on 20th January 2026, and the instant application is dated 18th March 2026. The delay was explained by the Applicants as not substantial and that they have sufficient reason for the delay being post judgement negotiations. They submitted that the same is inadvertent and excusable to human error.
7. The Applicants argued that the draft memorandum of appeal raises triable issues that warrant a full hearing. On the aspect of security, the Applicants posited that they are willing do deposit the money in a joint interest earning account in the name of the respective counsels as security for due performance of the decree.
8. The Respondent urged his case further through written submission dated 13th April 2026. It was their submission that this Court must strike a balance between expeditious disposal of cases and the right of appeal.
9. The Respondents submits that having waited for justice for many years, the family has suffered substantial loss and the family should be allowed to enjoy the fruit of their judgement. They concluded by praying that should the Court be inclined to issue stay, the Applicants should be directed to pay half of the decretal sum to the Respondent and the balance be deposited in an interest earning account with the condition that the appeal be filed and prosecuted within ninety days.
10. The principles that apply in an application for leave to extend time were well set out in the often-cited case of Leo Sila Mutiso vs. Rose Hellen Wangari Mwangi, Civil Application Nai. 251 of 1997 states as follows: Page 3 of 3
"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."
11. I note how old the dispute is and the delay it has caused to the Respondents herein hence this Court is now faced with the task of balancing the interest of the parties and the approach I will take is to ensure that the Applicants are not denied an opportunity to ventilate their issues through an appeal and the Respondents are not denied the fruits of their judgements and their rights equally safeguarded.
12. This Court having considered the law and rival submissions and in the interest of justice allows the application to file the appeal out of time, the following orders hereby issue: -
[a] Leave be and is hereby granted to the Applicant to lodge an appeal against the judgment in Milimani CMCC Civil Suit No. E7613 of 2008.
[b] The Applicant shall file and serve a Memorandum of Appeal in a substantive appeal file within 14 days of this order.
[c] There be a stay of execution of the Judgment and Decree in Milimani CMCC Civil Suit No. E7613 of 2008 pending the hearing and determination of the intended appeal.
[d] The grant of stay in the stay order in (c) above is conditional upon the Applicant depositing the sum of Kshs. 1,200,000/- in Court within 30 days of this order. For clarity, the deposit shall be in the substantive appeal file.
[e] The Applicant shall bear the costs of this application assessed at Kshs. 30,000/= payable within 14 days from today.
[f] In the event of non-compliance with Order (d) above, the order for stay of execution shall automatically lapse and the Notice of Motion dated 18th March 2026 shall stand dismissed with costs assessed at Kshs. 30,000/= and the Respondents shall be at liberty to levy execution of the decree.
DELIVERED, DATED and SIGNED at NAIROBI through the Microsoft online platform on this 3rd day of July 2026.
HON.LEPARASHAO PATRICIA
JUDGE
Judgment virtually delivered in the presence of:
Mwangi Counsel for the Appellant.
Oloo Counsel for the Respondent.
Michael: Court Assistant.
(i) (spent)
(ii) Stay of execution of the Judgement and Decree by Hon. K.D Ole Keiwa in Milimani CMCC No.7613 of 2008 delivered on 20th January 2026 pending hearing and determination of the Application.
(iii) Stay of execution of the Judgement and Decree by Hon. K.D Ole Keiwa in Milimani CMCC No.7613 of 2008 delivered on 20th January 2026 pending the Applicant’s intended Appeal.
(iv) Leave granted to the Applicants to file an Appeal out of time against the Judgement of Hon. K.D Ole Keiwa in Milimani CMCC No.7613 of 2008 delivered on 20th January 2026 pending hearing and determination of the Application.
(v) Costs of the Application be in the cause.
2. The application was anchored on the grounds on the face of it and a Supporting Affidavit sworn on even date. The Applicants urged the court to consider their application that they were willing to abide by any conditions which the Court will issue.
3. The Respondents strenuously opposed the application. They filed a Replying Affidavit sworn on 13th April 2026 by Penina Oloo, the Respondent’s Counsel. The Learned counsel averred that this will be the 4th Trial in this suit in different courts. She prayed that the motion is bad in law frivolous and an abuse of Court process aimed at delaying the execution process.
4. The application was canvassed by way of written submissions. Parties duly filed their written submissions whose contents have been considered together with the cited authorities.
5. As the application seeks to stay execution of a decree, the law thereto is provided under Order 42 Rule 6 of the Civil Procedure Rules. The conditions are well settled and are that the application be filed timeously, a demonstration of substantial loss likely to occur should stay not be granted and the aspect of security for costs for due performance.
6. I will now apply the above conditions to the matter at hand. On delay, the judgment of the trial Court was delivered on 20th January 2026, and the instant application is dated 18th March 2026. The delay was explained by the Applicants as not substantial and that they have sufficient reason for the delay being post judgement negotiations. They submitted that the same is inadvertent and excusable to human error.
7. The Applicants argued that the draft memorandum of appeal raises triable issues that warrant a full hearing. On the aspect of security, the Applicants posited that they are willing do deposit the money in a joint interest earning account in the name of the respective counsels as security for due performance of the decree.
8. The Respondent urged his case further through written submission dated 13th April 2026. It was their submission that this Court must strike a balance between expeditious disposal of cases and the right of appeal.
9. The Respondents submits that having waited for justice for many years, the family has suffered substantial loss and the family should be allowed to enjoy the fruit of their judgement. They concluded by praying that should the Court be inclined to issue stay, the Applicants should be directed to pay half of the decretal sum to the Respondent and the balance be deposited in an interest earning account with the condition that the appeal be filed and prosecuted within ninety days.
10. The principles that apply in an application for leave to extend time were well set out in the often-cited case of Leo Sila Mutiso vs. Rose Hellen Wangari Mwangi, Civil Application Nai. 251 of 1997 states as follows: Page 3 of 3
"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."
11. I note how old the dispute is and the delay it has caused to the Respondents herein hence this Court is now faced with the task of balancing the interest of the parties and the approach I will take is to ensure that the Applicants are not denied an opportunity to ventilate their issues through an appeal and the Respondents are not denied the fruits of their judgements and their rights equally safeguarded.
12. This Court having considered the law and rival submissions and in the interest of justice allows the application to file the appeal out of time, the following orders hereby issue: -
[a] Leave be and is hereby granted to the Applicant to lodge an appeal against the judgment in Milimani CMCC Civil Suit No. E7613 of 2008.
[b] The Applicant shall file and serve a Memorandum of Appeal in a substantive appeal file within 14 days of this order.
[c] There be a stay of execution of the Judgment and Decree in Milimani CMCC Civil Suit No. E7613 of 2008 pending the hearing and determination of the intended appeal.
[d] The grant of stay in the stay order in (c) above is conditional upon the Applicant depositing the sum of Kshs. 1,200,000/- in Court within 30 days of this order. For clarity, the deposit shall be in the substantive appeal file.
[e] The Applicant shall bear the costs of this application assessed at Kshs. 30,000/= payable within 14 days from today.
[f] In the event of non-compliance with Order (d) above, the order for stay of execution shall automatically lapse and the Notice of Motion dated 18th March 2026 shall stand dismissed with costs assessed at Kshs. 30,000/= and the Respondents shall be at liberty to levy execution of the decree.
DELIVERED, DATED and SIGNED at NAIROBI through the Microsoft online platform on this 3rd day of July 2026.
HON.LEPARASHAO PATRICIA
JUDGE
Judgment virtually delivered in the presence of:
Mwangi Counsel for the Appellant.
Oloo Counsel for the Respondent.
Michael: Court Assistant.