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RULING
1. Before me is the Notice of Motion dated 28/7/2023 brought under Order 42 Rule 6 Order 50 Rule 5, Order 51 Rule 1 and 3 of the Civil Procedure Rules Sections 1 A, 1B , 3A and 95 of Civil Procedure Act.
2. The applicants seek orders :- that there be stay of execution of the judgement of the Kilungu PMCC157/2020 and that the applicant be granted enlarged time to enable the applicant to comply with the orders of this court of 24/11/2022 where the applicant were ordered to deposit the sum of Kshs. 500,000 within 45 days of the ruling.
3. The grounds for the application is that the applicants filed an application dated 24/1/2023 seeking stay of execution of the lower court judgement.
4. That the ruling was to be delivered on 24/11/2022 but the same was deferred to be delivered on notice - and that it is only on 20/7/2023 that the applicants’ counsel found that the Ruling was delivered on 24/11/2022 where stay was granted on condition that the applicants deposited Kshs. 500,000 to the Respondent’s Advocates within 45 days from the date of ruling.
5. That the applicants were not able to comply within the timelines because they were not served with the ruling and were not aware of this existence.
6. That the applicants were still desirous of pursuing the appeal and were seeking reasonable conditions; that the respondents would not suffer any prejudice.
7. The application is supported by the affidavit of Mercy Waweru sworn on 28/7/2023
8. The application is opposed vide the replying affidavit of the respondent sworn on 18/8/2023 urging the court to dismiss the application.
9. Parties filed written submission.
10. For the applicant it is argued that the court has discretion to extend time - the applicant cites Nicholas Kiptoo Arap Korir Salat vs IEBC & 7 others [2014] eKLR.
11. That the overriding objective to do justice over shadows all technicalities- etc. and applicant relies on Stephen Boro Gitiha vs Family Finance Building Society & 3 others Civil Appeal Nairobi 263/2009.
12. It is argued that the application was brought without delay that the “plaintiff” would not suffer any prejudice.
13. For the respondent it is submitted that the applicants are not entitled to the orders sought because they already obtained orders in their earlier application dated 24/1/2022 where they were given 45 days to comply.
14. That the applicants have not given any reason why they have not complied. Relying on the same case – Nicholas Kiptoo Arap Salat the respondent argues that the indulgence of an extension of time is not available to a party in default – that party is not entitled - the party must provide sufficient reason to warrant the exercise of the court’s discretion in its favour. That this party has not laid any ground upon which the court can exercise its discretion in its favour.
15. The respondent also submits that the applicants were not taking the orders of this court seriously and cited the Court of Appeal in Kivanga Estates Ltd Vs National Bank of Kenya Ltd [2017]eKLR where the court lay emphasis on the duty of court to ensure the maintenance of the integrity of the system of administration of justice.
16. I have carefully considered the application, the rival affidavits and the submissions by counsel. The only issue for determination is whether the application has merit.
17. The record shows that on 18/10/2022 Mr. Ouko appeared for Ms. Gathenya for applicants.
18. The respondents were absent.
19. The court stated that the submissions were on record and the ruling would be delivered on 24/11/2022. It is counsel for the applicant (Mr. Ouko) who was to serve the ruling notice upon the respondents.
On 24/11/2022 Hon Dulu J delivered the ruling in the absence of parties noting that “Ruling date was taken in court”.
20. The sole reason for non-compliance with the orders of that day is the claim that the applicants were not served with the ruling because the court deferred the ruling. It is evident from the foregoing record that the court did no such thing. The date for the ruling was fixed in the presence of counsel for the applicants – they failed to show up when it was delivered and further - failed to follow up on the same till 8 months later when they brought this application.
21. The foregoing circumstances clearly demonstrate that the applicants do not deserve the exercise of this court’s discretion in their favour.
22. The application is without merit. It is dismissed with costs to the respondent.
Dated, signed and delivered via CTS on 27th October 2025
Mumbua T. Matheka
Judge
Court Assistant - Chrispol
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RULING
1. Before me is the Notice of Motion dated 28/7/2023 brought under Order 42 Rule 6 Order 50 Rule 5, Order 51 Rule 1 and 3 of the Civil Procedure Rules Sections 1 A, 1B , 3A and 95 of Civil Procedure Act.
2. The applicants seek orders :- that there be stay of execution of the judgement of the Kilungu PMCC157/2020 and that the applicant be granted enlarged time to enable the applicant to comply with the orders of this court of 24/11/2022 where the applicant were ordered to deposit the sum of Kshs. 500,000 within 45 days of the ruling.
3. The grounds for the application is that the applicants filed an application dated 24/1/2023 seeking stay of execution of the lower court judgement.
4. That the ruling was to be delivered on 24/11/2022 but the same was deferred to be delivered on notice - and that it is only on 20/7/2023 that the applicants’ counsel found that the Ruling was delivered on 24/11/2022 where stay was granted on condition that the applicants deposited Kshs. 500,000 to the Respondent’s Advocates within 45 days from the date of ruling.
5. That the applicants were not able to comply within the timelines because they were not served with the ruling and were not aware of this existence.
6. That the applicants were still desirous of pursuing the appeal and were seeking reasonable conditions; that the respondents would not suffer any prejudice.
7. The application is supported by the affidavit of Mercy Waweru sworn on 28/7/2023
8. The application is opposed vide the replying affidavit of the respondent sworn on 18/8/2023 urging the court to dismiss the application.
9. Parties filed written submission.
10. For the applicant it is argued that the court has discretion to extend time - the applicant cites Nicholas Kiptoo Arap Korir Salat vs IEBC & 7 others [2014] eKLR.
11. That the overriding objective to do justice over shadows all technicalities- etc. and applicant relies on Stephen Boro Gitiha vs Family Finance Building Society & 3 others Civil Appeal Nairobi 263/2009.
12. It is argued that the application was brought without delay that the “plaintiff” would not suffer any prejudice.
13. For the respondent it is submitted that the applicants are not entitled to the orders sought because they already obtained orders in their earlier application dated 24/1/2022 where they were given 45 days to comply.
14. That the applicants have not given any reason why they have not complied. Relying on the same case – Nicholas Kiptoo Arap Salat the respondent argues that the indulgence of an extension of time is not available to a party in default – that party is not entitled - the party must provide sufficient reason to warrant the exercise of the court’s discretion in its favour. That this party has not laid any ground upon which the court can exercise its discretion in its favour.
15. The respondent also submits that the applicants were not taking the orders of this court seriously and cited the Court of Appeal in Kivanga Estates Ltd Vs National Bank of Kenya Ltd [2017]eKLR where the court lay emphasis on the duty of court to ensure the maintenance of the integrity of the system of administration of justice.
16. I have carefully considered the application, the rival affidavits and the submissions by counsel. The only issue for determination is whether the application has merit.
17. The record shows that on 18/10/2022 Mr. Ouko appeared for Ms. Gathenya for applicants.
18. The respondents were absent.
19. The court stated that the submissions were on record and the ruling would be delivered on 24/11/2022. It is counsel for the applicant (Mr. Ouko) who was to serve the ruling notice upon the respondents.
On 24/11/2022 Hon Dulu J delivered the ruling in the absence of parties noting that “Ruling date was taken in court”.
20. The sole reason for non-compliance with the orders of that day is the claim that the applicants were not served with the ruling because the court deferred the ruling. It is evident from the foregoing record that the court did no such thing. The date for the ruling was fixed in the presence of counsel for the applicants – they failed to show up when it was delivered and further - failed to follow up on the same till 8 months later when they brought this application.
21. The foregoing circumstances clearly demonstrate that the applicants do not deserve the exercise of this court’s discretion in their favour.
22. The application is without merit. It is dismissed with costs to the respondent.
Dated, signed and delivered via CTS on 27th October 2025
Mumbua T. Matheka
Judge
Court Assistant - Chrispol
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