1. The County Government of Kwale the applicant herein, has filed before this court a Notice of Motion dated 5/5/2025 seeking two orders with respect to the judgment of the trial court delivered on 26/2/2025 in Kwale MC CC No. E120 of 2023, Mariam Abdalla Ndoro (Suing through her father and next of friend Abdalla Nyae Ndoro v. County Government of Kwale. The first order sought is leave to appeal out of time and the second one is stay of execution of the said judgment pending the hearing and determination of the applicant’s intended appeal to the High Court. There is also a prayer that costs be provided for.
2. The application is brought under section 79G, 95, 1A, 1B and 3A of the Civil Procedure Act (Cap. 21) Laws of Kenya, Order 42 Rule 6; Order 12 Rules 6 and 7 and Order 51 Rule 1 of the Civil Procedure Rules and Article 159(2)(d) of the Constitution of Kenya.
3. The grounds in support of the application are laid on the face therefore. They are expounded in the supporting affidavit sworn on 5/5/2025 by Linda Njenga, the Legal manager of Kenya Alliance Insurance Company Limited.
4. In summary, the grounds are that the judgment sought to be appealed was entered against the applicant who were aggrieved by the decision and they are desirous of appealing the same but the time for filing the appeal has since lapsed.
5. Further that although the applicant’s insurers were made aware of the judgment by the advocates in time, the advice was lost in circulation within the insurer’s offices before it could reach the claims department. It is deposed that the delay in filing the appeal was caused by inadvertence and human error of misplacement of the judgment advice resulting in the insurer failing to give instructions to their advocates to file appeal in time. That the mistake is excusable, inadvertent and honest and cannot be blamed upon the applicant.
6. It is further deposed that the intended appeal has appreciable chances of success as it raises triable issues of fact and law. A draft memorandum of appeal is annexed to the supporting affidavit.
7. It is deposed that if the order of stay is not granted the intended appeal will be rendered nugatory.
8. The application is opposed by the respondent through the replying affidavit sworn on 12/5/2025 by Godfrey Mutubia, advocate. He deposes that the application does not disclose good and sufficient cause for the delay in filing the appeal. That counsel for the respondent made several correspondences to the applicant’s insurers informing them of the judgment and asking them to pay but they did not.
9. Learned counsel deposes that the judgment is monetary and no substantial loss will arise if the decretal sum is paid.
10. That, the applicants have failed to offer any good reason why the appeal was not filed in time in spite of the three reminders he sent them. In that case, this court should not assist an indolent party.
11. The application was heard by way of written submissions filed by learned counsels for the parties. Learned counsels also provided authorities to back up their arguments.
12. Learned counsel for the applicant submits that the delay is not inordinate and is fully explained. She submits further that courts have accepted administrative or inadvertent errors as justifiable grounds in proper cases. She cites the case of Philip Keipto Chemwolo & another v Augustine Kubende [1986] KECA 87 (KLR) where the Court of Appeal, Apaloo, JA (as he then was) while considering the issue of delay in entering appearance and filing defence said that:
“I think a distinguished equity judge has said:
“Blunders will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case determined on its merits.”
13. Learned counsel submits further that the intended appeal raises substantive and arguable issues which however she did not point out.
14. She also submits that the respondent will not suffer any prejudice if the time to file the appeal is extended. She cited the case of Mwangi & 2 others (Suing on their own behalf and on behalf of Twendane Company Limited) v Kanyamwi Trading Company Limited [2015] KECA 967 (KLR) the Court of Appeal held that:
“It is upon the applicant to place sufficient material before the court which would explain why there was delay in filing the Memorandum and Record of Appeal. The Court has to balance the competing interests of the applicant with those of the respondent…
A plausible and satisfactory explanation for delay is the key that unlocks the court’s flow of discretionary favour. There has to be valid and clear reasons, upon which discretion can be favourably exercised.”
15. Learned counsel submitted further that on the other hand, the applicant stands to suffer irreversible harm if execution is not stayed and that this court is enjoined under Article 159 of the Constitution to prioritize substantive justice over procedural lapses.
16. Learned counsel for the respondent on his part submits that the applicant has not met the conditions for extension of time or grant of stay of execution. On the issue of extension of time to file appeal, learned counsel reiterated his depositions in the replying affidavit. He seems to concentrate more on the issue of stay of execution as that is where the submissions are directed.
17. Learned counsel submits that the applicant has not filed any appeal before this court to warrant him to seek for a stay of execution. He cites the case of Gerald M’limbine v Joseph Kangangi [2008] KEHC 1923 (KLR) where the High Court expressed the following view with regard to an application for extension of time to file appeal:
“My understanding of the proviso to section 79G is that an applicant seeking “an appeal to be admitted out of time” must in effect file such an appeal, and at the same time seek the court’s leave to have such an appeal admitted out of the statutory period of time. The proviso does not mean that an intending appellant first seeks the court’s permission to admit a non-existent appeal out of the statutory period. To do so would actually be an abuse of the court’s process under section 79B which says:
“79B Before an appeal from a subordinate court to the High Court is heard, a judge of the High Court shall peruse it, and if he considers that there is no sufficient ground for interfering with the decree part of a decree or order appealed against he may notwithstanding section 79C, reject the appeal summarily”
It seems to me therefore that it is not open to the court to exercise its discretion under the proviso to section 79G of the Civil Procedure Act except upon the existence and perusal of the appeal to be “admitted” not to be “filed out of time.” Admission presupposes that the appeal has been filed and will be “admitted” for hearing after a judge has established under Section 79B that there is “sufficient” ground for interfering with the decree part of a decree or order appealed against.”
18. This is a preliminary issue which I need to dispose of at once before proceeding to the substance of the application. The issue of filing a pleading out of time has received interpretation by the Supreme Court in the case of Nicholas Kiptoo Arap Korir Salat-vs- Independent Electoral and Boundaries Commission &7 others [2014] eKLR where the Supreme Court pronounced itself as follows:
“… counsel for the applicant acknowledged having already filed his appeal. He now prays for extension of time and urges that once so granted, the Petition of appeal already filed be deemed to have been duly filed.
What we hear the applicant telling the Court is that he is acknowledging having filed a ‘document’ he calls ‘an appeal’ out of time without leave of the Court. Pursuant to rule 33(1) of the Court’s Rules, it is mandatory that an appeal can only be filed within 30 days of filing the notice of appeal. Under rule 53 of the Court’s Rules, this Court can indeed extend time. However, it cannot be gainsaid that where the law provides for the time within which something ought to be done, if that time lapses, one need to first seek extension of that time before he can proceed to do that which the law requires.
By filing an appeal out of time before seeking extension of time, and subsequently seeking the Court to extend time and recognize such ‘an appeal’, is tantamount to moving the Court to remedy an illegality. This, the Court cannot do.
To file an appeal out of time and seek the Court to extend time is presumptive and in-appropriate. No appeal can be filed out of time without leave of the Court. Such a filling renders the ‘document’ so filed a nullity and of no legal consequence. Consequently, this Court will not accept a document filed out of time without leave of the Court.”
19. From the position stated by the Supreme Court above, I would find that the applicant has properly sought leave for extension of time before filing the appeal. I have also read the case of Gerald M’limbine by the High Court above and it would appear to me that in that case, there was not even a draft memorandum of appeal filed which is unlike in the present case where one is on record.
20. Learned counsel submits further that the applicant has not satisfied the conditions for grant of stay of execution as outlined in the case of Stephen Wanjohi v Central Glass Industries Ltd, Nairobi HCCC No. 6726 of 1991, where the Court identified the conditions that must be established to include;
a) Sufficient cause
b) Substantial loss
c) No unreasonable delay
d) Security
and the grant of stay is discretionary.
21. Learned counsel submits that from the evidence tendered at the hearing the appellant’s appeal has no chances of success and so the appellant cannot argue that the same may be rendered nugatory. That in that case, the applicant has not demonstrated sufficient cause to warrant the stay.
22. On substantial loss, learned counsel submits that the applicant has not disclosed the loss or threat it is bound to suffer as warrants of proclamation have not been annexed and the threshold for substantial loss has not been met by the applicant.
23. Learned counsel submits further that the reasons for delay offered by the applicant that the judgment was lost within their clerical department cannot hold as the respondent's advocates sent several reminders to the insurance firm.
24. On the requirement for security, learned counsel submits that the applicant has not shown any willingness to deposit any security as required under Order 42 Rule 6 of the Civil Procedure Rules.
25. Learned counsel has supported his submissions with various authorities cited.
26. I have considered the Notice of Motion application dated 5/5/2025, the grounds in support thereof and the supporting affidavits as well as replying affidavit sworn on 12/5/2025 and the submissions by learned counsels. The issues for determination are whether the applicant has satisfied the requirements for extension of time to file an appeal and stay of execution pending appeal, what orders the court should issue and who bears the costs.
27. The first prayer is for extension of time to file an appeal and a draft memorandum of appeal is annexed to the supporting of affidavits.
28. Section 79G of the Civil Procedure Act under which the prayer for extension of time is based provides 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.”
29. The applicant filed the present application on 5/5/2025 which is a period of about one month (and not two months as submitted by learned counsel for the respondent) after the due date when the appeal ought to have been filed on or before 25/3/2025. The judgment sought to be challenged was delivered on 26/2/2025. Under the proviso to section 79G CPA, the appeal may still 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. In applying this section, courts have held that the court has a wide discretion to extend time to file an appeal but the discretion must not be exercised capriciously but judiciously and based on sound judgment and consideration of the totality of the facts and law. In the case of Thuita Mwangi v Kenya Airways Ltd [2003] eKLR the Court of Appeal held setting out the principles for the court to consider 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 settled 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.”
30. The Supreme Court explained further in the case of Nicholas Kiptoo Arap Korir Salat (supra) that:
“…extension of time is not a right of a party; a party who seeks extension of time has the burden of laying a basis to the satisfaction of the Court. Of paramount importance, the reason for delay must be explained to the satisfaction of the Court. Further, the application for extension must be brought without undue delay and it must be demonstrated if the respondent will not suffer prejudice if extension is granted”.
31. It follows that a party seeking extension of time must first lay a basis for the delay and the reason(s) offered must be to the satisfaction of the court. This is what constitutes good and sufficient cause as required by the law. In the present application, the applicant has come out candidly and I find honestly to explain the cause of the delay. I am satisfied that it has offered what I consider to be an explanation that is to the satisfaction of the court. A delay of just about one month and one week cannot be held to be inordinate in those circumstances.
32. I find that there is good and sufficient explanation for the delay in filing the appeal upon which the court can and hereby exercises its discretion to extend time to file the appeal.
33. The next issue is whether or not the court should grant a stay of execution.
34. Stay of execution pending appeal is provided for under Order 42 Rule 6 of the Civil Procedure Rules 2010 as follows;
“(1) No appeal or second appeal shall operate as a stay of execution or proceeding under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.
(2) No order for stay of execution shall be made under subrule (1) unless –
(a) the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and
(b) such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.”
35. From the foregoing provision of the law, the three conditions to be fulfilled for an order of stay pending appeal to issue are;
a. that substantial loss may result to the applicant unless the order is made.
b. the application has been made without unreasonable delay.
c. security as the court orders for the due performance.
36. These principles are enunciated in the case of Butt v Rent Restriction Tribunal [1982] KLR 417where the Court of Appeal stated what ought to be considered in determining whether to grant or refuse stay of execution pending appeal. The court said that: -
a. The power of the court to grant or refuse an application for a stay of execution is discretionary; and the discretion should be exercised in such a way as not to prevent an appeal.
b. Secondly, the general principle in granting or refusing a stay is, if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should the appeal court reverse the judge’s discretion.
c. Thirdly, a judge should not refuse a stay if there are good grounds for granting it merely because, in his opinion, a better remedy may become available to the applicant at the end of the proceedings.
d. Finally, the Court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances and its unique requirements. The court in exercising its powers under Order XLI Rule 4(2) (b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security of costs as ordered will cause the order for stay of execution to lapse.
37. The High Court’s jurisdiction to grant a stay of execution pending appeal under Order 42 rule 6 of the Civil Procedure Rules is circumscribed by the conditions set out above.
38. It has also been held that the court, in exercising its discretion, should also opt for the lower rather than the higher risk of injustice and finally the court will also consider the overriding objective as stipulated in sections 1A and 1B of the Civil Procedure Act, which the courts are now enjoined to give effect to. (See Machira T/A Machira & Co Advocates vs. East African Standard (No 2) [2002] KLR 63).
39. This court has found that the applicant is entitled to extension of time to file the intended appeal out of time. The applicant’s draft memorandum of appeal was filed on 5/5/2025 together with the present application and is now on record. A period of about one month in the circumstances of this case cannot be considered as unreasonable delay in filing an appeal.
40. On the issue of substantial loss, the applicant deposes that it stands to suffer prejudice if execution is levied. Since there is no precise definition of what amounts to substantial loss, I believe it is for this court to determine on the facts placed before it. No doubt if a party who is exercising a right of appeal pays out a sum of money in satisfaction of a decree that is under challenge, whatever the amount, and afterwards, if it succeeds on appeal, is made to start following the same to get it back through no other means than filing suit, it causes inconvenience and substantial loss. This loss is not just monetary alone but even the time as well as the inconvenience of following up the same. It is one thing for the respondents to depose that they have the means and another for them to tender back the money at once if and when required to. I am aware that the respondent has a decree in his favour and he is entitled to enjoy the fruits of his judgment. But the applicant also has its right to appeal the same judgment. Balancing the two competing interests in this case, I find that the loss that would be suffered by the applicant would be substantial if the stay order is not granted while the delay in the enjoyment of the fruits of the judgment can be compensated by way of costs and interest.
41. This issue is evened out on the next requirement to be satisfied for stay of execution to issue that “such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.” As submitted by learned counsel for the respondent, the applicant herein has not offered any security. However, it is upon the court to ensure that it is offered before the stay order is granted. Therefore, the order of stay of execution can be granted on condition that sufficient security for the due performance of the decree is taken by the court.
42. Consequently, I find that the application herein has merit and in order not to render the intended appeal nugatory, the application is granted in the following terms:
a) The applicant is granted leave to file appeal out of time and to do so within the next 21 days.
b) Stay of execution of the judgment dated 26/2/2025 and ensuing decree in Kwale MCC No 125 of 2023 is granted pending hearing and determination of the intended appeal herein on condition that the applicant deposits into a joint interest earning account opened between counsels for both parties with a reputable bank the entire decretal sum within 30 days from today.
c) Failure by the applicant to abide by the conditions hereinabove the application herein dated 5/5/2025 will be deemed to have been dismissed and the respondents will be at liberty to execute.
43. Costs of the application will abide the Appeal
44. Orders accordingly.
45. Delivered, dated and signed at Kwale on the Virtual Platform, Teams this 5th day of July 2025.
ANDAYI W. F.
JUDGE
In the presence of:
Mauko for the Applicant.
Takah (Ms) for the Respondent.
Ummu: Court Assistant.
2. The application is brought under section 79G, 95, 1A, 1B and 3A of the Civil Procedure Act (Cap. 21) Laws of Kenya, Order 42 Rule 6; Order 12 Rules 6 and 7 and Order 51 Rule 1 of the Civil Procedure Rules and Article 159(2)(d) of the Constitution of Kenya.
3. The grounds in support of the application are laid on the face therefore. They are expounded in the supporting affidavit sworn on 5/5/2025 by Linda Njenga, the Legal manager of Kenya Alliance Insurance Company Limited.
4. In summary, the grounds are that the judgment sought to be appealed was entered against the applicant who were aggrieved by the decision and they are desirous of appealing the same but the time for filing the appeal has since lapsed.
5. Further that although the applicant’s insurers were made aware of the judgment by the advocates in time, the advice was lost in circulation within the insurer’s offices before it could reach the claims department. It is deposed that the delay in filing the appeal was caused by inadvertence and human error of misplacement of the judgment advice resulting in the insurer failing to give instructions to their advocates to file appeal in time. That the mistake is excusable, inadvertent and honest and cannot be blamed upon the applicant.
6. It is further deposed that the intended appeal has appreciable chances of success as it raises triable issues of fact and law. A draft memorandum of appeal is annexed to the supporting affidavit.
7. It is deposed that if the order of stay is not granted the intended appeal will be rendered nugatory.
8. The application is opposed by the respondent through the replying affidavit sworn on 12/5/2025 by Godfrey Mutubia, advocate. He deposes that the application does not disclose good and sufficient cause for the delay in filing the appeal. That counsel for the respondent made several correspondences to the applicant’s insurers informing them of the judgment and asking them to pay but they did not.
9. Learned counsel deposes that the judgment is monetary and no substantial loss will arise if the decretal sum is paid.
10. That, the applicants have failed to offer any good reason why the appeal was not filed in time in spite of the three reminders he sent them. In that case, this court should not assist an indolent party.
11. The application was heard by way of written submissions filed by learned counsels for the parties. Learned counsels also provided authorities to back up their arguments.
12. Learned counsel for the applicant submits that the delay is not inordinate and is fully explained. She submits further that courts have accepted administrative or inadvertent errors as justifiable grounds in proper cases. She cites the case of Philip Keipto Chemwolo & another v Augustine Kubende [1986] KECA 87 (KLR) where the Court of Appeal, Apaloo, JA (as he then was) while considering the issue of delay in entering appearance and filing defence said that:
“I think a distinguished equity judge has said:
“Blunders will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case determined on its merits.”
13. Learned counsel submits further that the intended appeal raises substantive and arguable issues which however she did not point out.
14. She also submits that the respondent will not suffer any prejudice if the time to file the appeal is extended. She cited the case of Mwangi & 2 others (Suing on their own behalf and on behalf of Twendane Company Limited) v Kanyamwi Trading Company Limited [2015] KECA 967 (KLR) the Court of Appeal held that:
“It is upon the applicant to place sufficient material before the court which would explain why there was delay in filing the Memorandum and Record of Appeal. The Court has to balance the competing interests of the applicant with those of the respondent…
A plausible and satisfactory explanation for delay is the key that unlocks the court’s flow of discretionary favour. There has to be valid and clear reasons, upon which discretion can be favourably exercised.”
15. Learned counsel submitted further that on the other hand, the applicant stands to suffer irreversible harm if execution is not stayed and that this court is enjoined under Article 159 of the Constitution to prioritize substantive justice over procedural lapses.
16. Learned counsel for the respondent on his part submits that the applicant has not met the conditions for extension of time or grant of stay of execution. On the issue of extension of time to file appeal, learned counsel reiterated his depositions in the replying affidavit. He seems to concentrate more on the issue of stay of execution as that is where the submissions are directed.
17. Learned counsel submits that the applicant has not filed any appeal before this court to warrant him to seek for a stay of execution. He cites the case of Gerald M’limbine v Joseph Kangangi [2008] KEHC 1923 (KLR) where the High Court expressed the following view with regard to an application for extension of time to file appeal:
“My understanding of the proviso to section 79G is that an applicant seeking “an appeal to be admitted out of time” must in effect file such an appeal, and at the same time seek the court’s leave to have such an appeal admitted out of the statutory period of time. The proviso does not mean that an intending appellant first seeks the court’s permission to admit a non-existent appeal out of the statutory period. To do so would actually be an abuse of the court’s process under section 79B which says:
“79B Before an appeal from a subordinate court to the High Court is heard, a judge of the High Court shall peruse it, and if he considers that there is no sufficient ground for interfering with the decree part of a decree or order appealed against he may notwithstanding section 79C, reject the appeal summarily”
It seems to me therefore that it is not open to the court to exercise its discretion under the proviso to section 79G of the Civil Procedure Act except upon the existence and perusal of the appeal to be “admitted” not to be “filed out of time.” Admission presupposes that the appeal has been filed and will be “admitted” for hearing after a judge has established under Section 79B that there is “sufficient” ground for interfering with the decree part of a decree or order appealed against.”
18. This is a preliminary issue which I need to dispose of at once before proceeding to the substance of the application. The issue of filing a pleading out of time has received interpretation by the Supreme Court in the case of Nicholas Kiptoo Arap Korir Salat-vs- Independent Electoral and Boundaries Commission &7 others [2014] eKLR where the Supreme Court pronounced itself as follows:
“… counsel for the applicant acknowledged having already filed his appeal. He now prays for extension of time and urges that once so granted, the Petition of appeal already filed be deemed to have been duly filed.
What we hear the applicant telling the Court is that he is acknowledging having filed a ‘document’ he calls ‘an appeal’ out of time without leave of the Court. Pursuant to rule 33(1) of the Court’s Rules, it is mandatory that an appeal can only be filed within 30 days of filing the notice of appeal. Under rule 53 of the Court’s Rules, this Court can indeed extend time. However, it cannot be gainsaid that where the law provides for the time within which something ought to be done, if that time lapses, one need to first seek extension of that time before he can proceed to do that which the law requires.
By filing an appeal out of time before seeking extension of time, and subsequently seeking the Court to extend time and recognize such ‘an appeal’, is tantamount to moving the Court to remedy an illegality. This, the Court cannot do.
To file an appeal out of time and seek the Court to extend time is presumptive and in-appropriate. No appeal can be filed out of time without leave of the Court. Such a filling renders the ‘document’ so filed a nullity and of no legal consequence. Consequently, this Court will not accept a document filed out of time without leave of the Court.”
19. From the position stated by the Supreme Court above, I would find that the applicant has properly sought leave for extension of time before filing the appeal. I have also read the case of Gerald M’limbine by the High Court above and it would appear to me that in that case, there was not even a draft memorandum of appeal filed which is unlike in the present case where one is on record.
20. Learned counsel submits further that the applicant has not satisfied the conditions for grant of stay of execution as outlined in the case of Stephen Wanjohi v Central Glass Industries Ltd, Nairobi HCCC No. 6726 of 1991, where the Court identified the conditions that must be established to include;
a) Sufficient cause
b) Substantial loss
c) No unreasonable delay
d) Security
and the grant of stay is discretionary.
21. Learned counsel submits that from the evidence tendered at the hearing the appellant’s appeal has no chances of success and so the appellant cannot argue that the same may be rendered nugatory. That in that case, the applicant has not demonstrated sufficient cause to warrant the stay.
22. On substantial loss, learned counsel submits that the applicant has not disclosed the loss or threat it is bound to suffer as warrants of proclamation have not been annexed and the threshold for substantial loss has not been met by the applicant.
23. Learned counsel submits further that the reasons for delay offered by the applicant that the judgment was lost within their clerical department cannot hold as the respondent's advocates sent several reminders to the insurance firm.
24. On the requirement for security, learned counsel submits that the applicant has not shown any willingness to deposit any security as required under Order 42 Rule 6 of the Civil Procedure Rules.
25. Learned counsel has supported his submissions with various authorities cited.
26. I have considered the Notice of Motion application dated 5/5/2025, the grounds in support thereof and the supporting affidavits as well as replying affidavit sworn on 12/5/2025 and the submissions by learned counsels. The issues for determination are whether the applicant has satisfied the requirements for extension of time to file an appeal and stay of execution pending appeal, what orders the court should issue and who bears the costs.
27. The first prayer is for extension of time to file an appeal and a draft memorandum of appeal is annexed to the supporting of affidavits.
28. Section 79G of the Civil Procedure Act under which the prayer for extension of time is based provides 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.”
29. The applicant filed the present application on 5/5/2025 which is a period of about one month (and not two months as submitted by learned counsel for the respondent) after the due date when the appeal ought to have been filed on or before 25/3/2025. The judgment sought to be challenged was delivered on 26/2/2025. Under the proviso to section 79G CPA, the appeal may still 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. In applying this section, courts have held that the court has a wide discretion to extend time to file an appeal but the discretion must not be exercised capriciously but judiciously and based on sound judgment and consideration of the totality of the facts and law. In the case of Thuita Mwangi v Kenya Airways Ltd [2003] eKLR the Court of Appeal held setting out the principles for the court to consider 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 settled 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.”
30. The Supreme Court explained further in the case of Nicholas Kiptoo Arap Korir Salat (supra) that:
“…extension of time is not a right of a party; a party who seeks extension of time has the burden of laying a basis to the satisfaction of the Court. Of paramount importance, the reason for delay must be explained to the satisfaction of the Court. Further, the application for extension must be brought without undue delay and it must be demonstrated if the respondent will not suffer prejudice if extension is granted”.
31. It follows that a party seeking extension of time must first lay a basis for the delay and the reason(s) offered must be to the satisfaction of the court. This is what constitutes good and sufficient cause as required by the law. In the present application, the applicant has come out candidly and I find honestly to explain the cause of the delay. I am satisfied that it has offered what I consider to be an explanation that is to the satisfaction of the court. A delay of just about one month and one week cannot be held to be inordinate in those circumstances.
32. I find that there is good and sufficient explanation for the delay in filing the appeal upon which the court can and hereby exercises its discretion to extend time to file the appeal.
33. The next issue is whether or not the court should grant a stay of execution.
34. Stay of execution pending appeal is provided for under Order 42 Rule 6 of the Civil Procedure Rules 2010 as follows;
“(1) No appeal or second appeal shall operate as a stay of execution or proceeding under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.
(2) No order for stay of execution shall be made under subrule (1) unless –
(a) the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and
(b) such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.”
35. From the foregoing provision of the law, the three conditions to be fulfilled for an order of stay pending appeal to issue are;
a. that substantial loss may result to the applicant unless the order is made.
b. the application has been made without unreasonable delay.
c. security as the court orders for the due performance.
36. These principles are enunciated in the case of Butt v Rent Restriction Tribunal [1982] KLR 417where the Court of Appeal stated what ought to be considered in determining whether to grant or refuse stay of execution pending appeal. The court said that: -
a. The power of the court to grant or refuse an application for a stay of execution is discretionary; and the discretion should be exercised in such a way as not to prevent an appeal.
b. Secondly, the general principle in granting or refusing a stay is, if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should the appeal court reverse the judge’s discretion.
c. Thirdly, a judge should not refuse a stay if there are good grounds for granting it merely because, in his opinion, a better remedy may become available to the applicant at the end of the proceedings.
d. Finally, the Court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances and its unique requirements. The court in exercising its powers under Order XLI Rule 4(2) (b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security of costs as ordered will cause the order for stay of execution to lapse.
37. The High Court’s jurisdiction to grant a stay of execution pending appeal under Order 42 rule 6 of the Civil Procedure Rules is circumscribed by the conditions set out above.
38. It has also been held that the court, in exercising its discretion, should also opt for the lower rather than the higher risk of injustice and finally the court will also consider the overriding objective as stipulated in sections 1A and 1B of the Civil Procedure Act, which the courts are now enjoined to give effect to. (See Machira T/A Machira & Co Advocates vs. East African Standard (No 2) [2002] KLR 63).
39. This court has found that the applicant is entitled to extension of time to file the intended appeal out of time. The applicant’s draft memorandum of appeal was filed on 5/5/2025 together with the present application and is now on record. A period of about one month in the circumstances of this case cannot be considered as unreasonable delay in filing an appeal.
40. On the issue of substantial loss, the applicant deposes that it stands to suffer prejudice if execution is levied. Since there is no precise definition of what amounts to substantial loss, I believe it is for this court to determine on the facts placed before it. No doubt if a party who is exercising a right of appeal pays out a sum of money in satisfaction of a decree that is under challenge, whatever the amount, and afterwards, if it succeeds on appeal, is made to start following the same to get it back through no other means than filing suit, it causes inconvenience and substantial loss. This loss is not just monetary alone but even the time as well as the inconvenience of following up the same. It is one thing for the respondents to depose that they have the means and another for them to tender back the money at once if and when required to. I am aware that the respondent has a decree in his favour and he is entitled to enjoy the fruits of his judgment. But the applicant also has its right to appeal the same judgment. Balancing the two competing interests in this case, I find that the loss that would be suffered by the applicant would be substantial if the stay order is not granted while the delay in the enjoyment of the fruits of the judgment can be compensated by way of costs and interest.
41. This issue is evened out on the next requirement to be satisfied for stay of execution to issue that “such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.” As submitted by learned counsel for the respondent, the applicant herein has not offered any security. However, it is upon the court to ensure that it is offered before the stay order is granted. Therefore, the order of stay of execution can be granted on condition that sufficient security for the due performance of the decree is taken by the court.
42. Consequently, I find that the application herein has merit and in order not to render the intended appeal nugatory, the application is granted in the following terms:
a) The applicant is granted leave to file appeal out of time and to do so within the next 21 days.
b) Stay of execution of the judgment dated 26/2/2025 and ensuing decree in Kwale MCC No 125 of 2023 is granted pending hearing and determination of the intended appeal herein on condition that the applicant deposits into a joint interest earning account opened between counsels for both parties with a reputable bank the entire decretal sum within 30 days from today.
c) Failure by the applicant to abide by the conditions hereinabove the application herein dated 5/5/2025 will be deemed to have been dismissed and the respondents will be at liberty to execute.
43. Costs of the application will abide the Appeal
44. Orders accordingly.
45. Delivered, dated and signed at Kwale on the Virtual Platform, Teams this 5th day of July 2025.
ANDAYI W. F.
JUDGE
In the presence of:
Mauko for the Applicant.
Takah (Ms) for the Respondent.
Ummu: Court Assistant.