1. The Applicant approached this court vide a Notice of Motion Application dated 22/01/2025 seeking the following orders;
1) Spent
2) That leave to appeal, out of time against the Judgment in the Magistrate Courts Civil Case No. 727 of 2020 delivered on 26th November 2024.
3) Spent
4) That there be a stay of execution and/or further execution of the decree herein pending the hearing and determination of the intended appeal to the high court.
5) That costs of this application be in the cause.
2. The application is premised on the grounds on the face of it and the averments of the Applicant in the Supporting Affidavit. The Application is expressed to be brought under Sections 1A, 1B and 3, 3A and 63(e) and 79G of the Civil Procedure Act, Order 42, Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules.
3. The Applicant contends that the Trial Court in the suit before it for defamation delivered judgement in favour of the Respondent to the effect that the defendant pays damages of Kshs. 3,000,000/- to the plaintiff and costs. Being aggrieved with this decision, the Applicant instructed its advocates to file an appeal which raises weighty issues for determination. Further, that the Respondent has threatened to execute the judgement and therefore the Applicant will suffer substantial loss if the order is not granted. He deponed that he is willing to abide by any conditions set by the court as security for due performance and further, that the Respondent shall not be prejudiced if the orders sought are granted.
4. The Respondent opposed the Application vide a Replying Affidavit dated 10/12/2025 sworn by the Respondent. The Respondent averred that he was awarded Kshs 3,000,000/= for Defamation and costs of the suit amounting to Kshs 185,200/=; pursuant to the certificate of assessed costs dated 5th February 2025. Further, that the Appellant’s intended appeal is preposterous and is highly unlikely to succeed. The Appellants are further required to prove that the Respondent is unable to refund the Decretal sum
5. The Deponent averred that the application has not met the threshold set out in Order 46 Rule 6(1) and 2) on the following grounds; -
o The Appellant m their application has not demonstrated any substantial loss they will incur, if stay of execution pending appeal is not granted.
o The Appellant is guilty of laches and undue delay, as they filed this application two months later.
o The Appellant has not provided any form of security for due performance, as enshrined in Order 42 rule 6(2) (b).
6. The Respondent proposes that the Appellants deposit three quarters (3/4) of the decretal sum plus costs assessed at Ks. 185, 200/- in an interest earning account, in the joint names of the Advocates on record pending the hearing and determination of the intended appeal. Further, that if this application is allowed without the requisite security for due performance, the same will occasion substantial injustice to the Respondent.
Analysis and Determination
7. Counsel for the Applicant relied on their pleadings and did not therefore file any submissions. Counsel for the Respondent filed submissions dated 22nd April 2025 whose gist and purport I have considered and in applying my mind to all the issues raised in the pleadings and the said submissions, the only issue for determination is;
whether the Applicant has met the conditions for the granted leave to appeal out of time
8. Section 79G of the Civil Procedure Code provides as follows with regard to the time for filing appeals from subordinate courts;
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.
9. The principles that guide the grant of a stay of execution pending appeal are well settled. These principles are provided for under Order 42 rule 6(2) of the Civil Procedure Rules which provides:
“No order for stay of execution shall be made under sub rule (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 application
10. The Supreme Court in the case of Nicholas Kiptoo Korir arap Salat vs IEBC and 7 Others [2014] eKLR enunciated the principles applicable in an application for leave to appeal out of time. The court stated inter alia that: -
“The underlying principles a court should consider in exercise of such discretion should include: -
a. Extension of time is not a right of any party. It is an equitable remedy that is only available to a deserving party at the discretion of the court;
b. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;
c. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case by case basis;
d. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;
e. Whether there will be any prejudice suffered by the respondent if the extension is granted;
f. Whether the application has been brought without undue delay.
11. Further, in the case of Paul Musili Wambua vs Attorney General & 2 Others [2015] eKLR, the Court of Appeal in considering an application for extension of time and leave to file the Notice of Appeal out of time stated the following: -
“…….it is now settled by a long line of authorities by this court that the decision of whether or not to extend the time for filing an appeal the Judge exercises unfettered discretion. However, in the exercise of such discretion, the court must act upon reason(s) not based on whim or caprice. In general, the matters which a court takes into account in deciding whether or not to grant an extension of time are; the length of delay, the reason for the delay, the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the application is granted.”
12. Substantial loss was explained in the case of James Wangalwa & Another vs. Agnes Naliaka Cheseto [2012] eKLR, that: -
“No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process. The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the applicant as the successful party in the appeal ... the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”
13. Further, in the case of G. N. Muema P/A (sic) Mt. View Maternity & Nursing Home v Miriam Maalim Bishar & Another [2018] eKLR, the Court stated as follows: -
“It was the considered view of this court that substantial loss does not have to be a lot of money. It was sufficient if an applicant seeking a stay of execution demonstrated that it would have to go through hardship such as instituting legal proceedings to recover the decretal sum if paid to a respondent in the event his or her appeal was successful. Failure to recover such decretal sum would render his appeal nugatory if he or she was successful.”
14. The purpose of security was clearly enunciated in Arun C. Sharma vs. Ashana Raikundalia t/a Rairundalia & Co. Advocates & 2 others [2014] eKLR, where the court stated: -
“The purpose of the security needed under Order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the applicant. It is not to punish the judgment debtor…. Civil process is quite different because in civil process the judgment is like a debt hence the applicants become and are judgment debtors in relation to the respondent. That is why any security given under Order 42 rule 6 of the Civil Procedure Rules acts as security for due performance of such decree or order as may ultimately be binding on the applicants. I presume the security must be one which can serve that purpose.”
15. In Nairobi HCC No. 32 of 2010, Utalii Transport Company Limited & 3 Others v NIC Bank Limited & another [2014] eKLR, the Court in considering what amounted to inordinate delay had this to say;
“Whereas there is no precise measure of what amounts to inordinate delay. And whereas what amounts to inordinate delay will differ from case to case depending on the circumstances of each case; the subject matter of the case; the nature of the case; the explanation given for the delay; and so on and so forth. Nevertheless, inordinate delay should not be difficult to ascertain once it occurs; the litmus test being that it should be an amount of delay which leads the court to an inescapable conclusion that it is inordinate and therefore, inexcusable”
16. Having laid out the applicable statutory provision that guides the grant of leave to appeal out of time as well as the relevant case law as I have outlined above, I have considered and addressed my mind to the reasons given for the delay by the Applicant. I note that the Applicant states that the Judgement delivered on 26th November 2024 was published on the Judiciary on line platform and that it did not come to his attention or the attention of his advocate until after the long Christmas break and specifically on 13th January when the Advocates office resumed from the break.
17. That during the period before the delivery of the judgement, the Applicant severally visited the Court Registry to find out whether the judgement had been delivered and every time he was advised that the Hon Magistrate seized of the matter had been transferred and the judgement will be delivered through the court’s online platform.
18. The Respondent in their opposition to the Application and particularly on this deposition by the Applicant deposed that the Christmas break starts after the 20th of December on any given year long after the judgement had been delivered. In considering theses rival depositions, I am inclined to agree with the Respondent on the date the judgement was delivered vis-a-vis the start of the Christmas vacation. The vacation commenced almost one month after the judgement was delivered and posted.
19. Further, the Applicant himself deposed that he was variously advised by the Registry that the judgement would be posted online. Having been so advised, he ought to have been sufficiently diligent to follow up the delivery of the judgement through the portal as advised and in this regard, I am not satisfied with his explanation that even with this guidance and with the judgement having been duly posted as advised, both his Counsel and himself missed to take note of the judgement and have the Appeal filed within time. In any event, the court notes that even after resumption on 13th January 2025, this Application was filed on 22nd January 2025 almost 10 days later.
20. In light of the above, I find the delay to have been inordinate and the same therefore does not warrant the exercise of the court’s discretion in favour of the Applicant. Further to the above, save to state that the Respondent has threatened to execute the judgement by way of the attachment of a plot that he owns adjacent to where the Respondent resides, and that this is where the Applicant resides with his family, the Applicant has not at all demonstrated to court the irreparable loss he stands to suffer for reasons that no evidence has been proffered by the Applicant to demonstrate that execution has commenced, and that even if the same has commenced, it is targeted upon a particular plot that is owned and registered in the Applicant’s name, that the said plot comprises his family home and that this is the only property that he owns.
21. Lastly, the Applicant has not offered any security for the due performance of the decree. The upshot of the above then is that I find that the Applicant’s Application lacks merit and the same is therefore dismissed in its entirety with costs the Respondents.
Read dated and Signed at ELDORET on 4th June 2025
1) Spent
2) That leave to appeal, out of time against the Judgment in the Magistrate Courts Civil Case No. 727 of 2020 delivered on 26th November 2024.
3) Spent
4) That there be a stay of execution and/or further execution of the decree herein pending the hearing and determination of the intended appeal to the high court.
5) That costs of this application be in the cause.
2. The application is premised on the grounds on the face of it and the averments of the Applicant in the Supporting Affidavit. The Application is expressed to be brought under Sections 1A, 1B and 3, 3A and 63(e) and 79G of the Civil Procedure Act, Order 42, Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules.
3. The Applicant contends that the Trial Court in the suit before it for defamation delivered judgement in favour of the Respondent to the effect that the defendant pays damages of Kshs. 3,000,000/- to the plaintiff and costs. Being aggrieved with this decision, the Applicant instructed its advocates to file an appeal which raises weighty issues for determination. Further, that the Respondent has threatened to execute the judgement and therefore the Applicant will suffer substantial loss if the order is not granted. He deponed that he is willing to abide by any conditions set by the court as security for due performance and further, that the Respondent shall not be prejudiced if the orders sought are granted.
4. The Respondent opposed the Application vide a Replying Affidavit dated 10/12/2025 sworn by the Respondent. The Respondent averred that he was awarded Kshs 3,000,000/= for Defamation and costs of the suit amounting to Kshs 185,200/=; pursuant to the certificate of assessed costs dated 5th February 2025. Further, that the Appellant’s intended appeal is preposterous and is highly unlikely to succeed. The Appellants are further required to prove that the Respondent is unable to refund the Decretal sum
5. The Deponent averred that the application has not met the threshold set out in Order 46 Rule 6(1) and 2) on the following grounds; -
o The Appellant m their application has not demonstrated any substantial loss they will incur, if stay of execution pending appeal is not granted.
o The Appellant is guilty of laches and undue delay, as they filed this application two months later.
o The Appellant has not provided any form of security for due performance, as enshrined in Order 42 rule 6(2) (b).
6. The Respondent proposes that the Appellants deposit three quarters (3/4) of the decretal sum plus costs assessed at Ks. 185, 200/- in an interest earning account, in the joint names of the Advocates on record pending the hearing and determination of the intended appeal. Further, that if this application is allowed without the requisite security for due performance, the same will occasion substantial injustice to the Respondent.
Analysis and Determination
7. Counsel for the Applicant relied on their pleadings and did not therefore file any submissions. Counsel for the Respondent filed submissions dated 22nd April 2025 whose gist and purport I have considered and in applying my mind to all the issues raised in the pleadings and the said submissions, the only issue for determination is;
whether the Applicant has met the conditions for the granted leave to appeal out of time
8. Section 79G of the Civil Procedure Code provides as follows with regard to the time for filing appeals from subordinate courts;
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.
9. The principles that guide the grant of a stay of execution pending appeal are well settled. These principles are provided for under Order 42 rule 6(2) of the Civil Procedure Rules which provides:
“No order for stay of execution shall be made under sub rule (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 application
10. The Supreme Court in the case of Nicholas Kiptoo Korir arap Salat vs IEBC and 7 Others [2014] eKLR enunciated the principles applicable in an application for leave to appeal out of time. The court stated inter alia that: -
“The underlying principles a court should consider in exercise of such discretion should include: -
a. Extension of time is not a right of any party. It is an equitable remedy that is only available to a deserving party at the discretion of the court;
b. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;
c. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case by case basis;
d. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;
e. Whether there will be any prejudice suffered by the respondent if the extension is granted;
f. Whether the application has been brought without undue delay.
11. Further, in the case of Paul Musili Wambua vs Attorney General & 2 Others [2015] eKLR, the Court of Appeal in considering an application for extension of time and leave to file the Notice of Appeal out of time stated the following: -
“…….it is now settled by a long line of authorities by this court that the decision of whether or not to extend the time for filing an appeal the Judge exercises unfettered discretion. However, in the exercise of such discretion, the court must act upon reason(s) not based on whim or caprice. In general, the matters which a court takes into account in deciding whether or not to grant an extension of time are; the length of delay, the reason for the delay, the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the application is granted.”
12. Substantial loss was explained in the case of James Wangalwa & Another vs. Agnes Naliaka Cheseto [2012] eKLR, that: -
“No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process. The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the applicant as the successful party in the appeal ... the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”
13. Further, in the case of G. N. Muema P/A (sic) Mt. View Maternity & Nursing Home v Miriam Maalim Bishar & Another [2018] eKLR, the Court stated as follows: -
“It was the considered view of this court that substantial loss does not have to be a lot of money. It was sufficient if an applicant seeking a stay of execution demonstrated that it would have to go through hardship such as instituting legal proceedings to recover the decretal sum if paid to a respondent in the event his or her appeal was successful. Failure to recover such decretal sum would render his appeal nugatory if he or she was successful.”
14. The purpose of security was clearly enunciated in Arun C. Sharma vs. Ashana Raikundalia t/a Rairundalia & Co. Advocates & 2 others [2014] eKLR, where the court stated: -
“The purpose of the security needed under Order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the applicant. It is not to punish the judgment debtor…. Civil process is quite different because in civil process the judgment is like a debt hence the applicants become and are judgment debtors in relation to the respondent. That is why any security given under Order 42 rule 6 of the Civil Procedure Rules acts as security for due performance of such decree or order as may ultimately be binding on the applicants. I presume the security must be one which can serve that purpose.”
15. In Nairobi HCC No. 32 of 2010, Utalii Transport Company Limited & 3 Others v NIC Bank Limited & another [2014] eKLR, the Court in considering what amounted to inordinate delay had this to say;
“Whereas there is no precise measure of what amounts to inordinate delay. And whereas what amounts to inordinate delay will differ from case to case depending on the circumstances of each case; the subject matter of the case; the nature of the case; the explanation given for the delay; and so on and so forth. Nevertheless, inordinate delay should not be difficult to ascertain once it occurs; the litmus test being that it should be an amount of delay which leads the court to an inescapable conclusion that it is inordinate and therefore, inexcusable”
16. Having laid out the applicable statutory provision that guides the grant of leave to appeal out of time as well as the relevant case law as I have outlined above, I have considered and addressed my mind to the reasons given for the delay by the Applicant. I note that the Applicant states that the Judgement delivered on 26th November 2024 was published on the Judiciary on line platform and that it did not come to his attention or the attention of his advocate until after the long Christmas break and specifically on 13th January when the Advocates office resumed from the break.
17. That during the period before the delivery of the judgement, the Applicant severally visited the Court Registry to find out whether the judgement had been delivered and every time he was advised that the Hon Magistrate seized of the matter had been transferred and the judgement will be delivered through the court’s online platform.
18. The Respondent in their opposition to the Application and particularly on this deposition by the Applicant deposed that the Christmas break starts after the 20th of December on any given year long after the judgement had been delivered. In considering theses rival depositions, I am inclined to agree with the Respondent on the date the judgement was delivered vis-a-vis the start of the Christmas vacation. The vacation commenced almost one month after the judgement was delivered and posted.
19. Further, the Applicant himself deposed that he was variously advised by the Registry that the judgement would be posted online. Having been so advised, he ought to have been sufficiently diligent to follow up the delivery of the judgement through the portal as advised and in this regard, I am not satisfied with his explanation that even with this guidance and with the judgement having been duly posted as advised, both his Counsel and himself missed to take note of the judgement and have the Appeal filed within time. In any event, the court notes that even after resumption on 13th January 2025, this Application was filed on 22nd January 2025 almost 10 days later.
20. In light of the above, I find the delay to have been inordinate and the same therefore does not warrant the exercise of the court’s discretion in favour of the Applicant. Further to the above, save to state that the Respondent has threatened to execute the judgement by way of the attachment of a plot that he owns adjacent to where the Respondent resides, and that this is where the Applicant resides with his family, the Applicant has not at all demonstrated to court the irreparable loss he stands to suffer for reasons that no evidence has been proffered by the Applicant to demonstrate that execution has commenced, and that even if the same has commenced, it is targeted upon a particular plot that is owned and registered in the Applicant’s name, that the said plot comprises his family home and that this is the only property that he owns.
21. Lastly, the Applicant has not offered any security for the due performance of the decree. The upshot of the above then is that I find that the Applicant’s Application lacks merit and the same is therefore dismissed in its entirety with costs the Respondents.
Read dated and Signed at ELDORET on 4th June 2025