'1. Before me for determination is a notice of motion dated 9th May 2025, in which the applicant is seeking orders that:
a) Spent
b) Spent
c) THAT this Honourable Court be pleased to extend and/or enlarge the time within which to appeal against the judgment of the Honourable I. K. RONO (RM) delivered on 20th March, 2025, in Ogembo Cmcc No. E068 of 2020.
d) THAT this Honourable Court be pleased to grant an order of stay of execution of the judgment and/or decree of the Trial Court in Ogembo Cmcc No. E068 of 2020, entered on 20th March, 2025 pending the hearing and determination of the intended appeal.
e) THAT the costs of this application be provided for.
2. The application is based on the grounds that:
i) The Applicant, being aggrieved and dissatisfied with the finding and/or judgment on liability of the Honourable W I. K. RONO (RM) delivered on 20th March, 2025, in Ogembo Cmcc No. E068 of 2020 thereby seeks to appeal against the said decision.
ii) The prescribed statutory period within which to file the appeal has since lapsed.
iii) The Applicant was not notified of the date fixed for the delivery of the judgment.
iv) The Applicant''s counsel received instructions to file the appeal after expiry of the statutory period within which to file the appeal.
v) The delay in filing the appeal is not inordinate.
vi) There being no stay of execution, the intended appeal shall be rendered nugatory if the orders sought herein are not granted as the Respondent/Decree-Holder, may proceed to execute and thereby attach and sell the Applicant''s property in satisfaction of the decree.
vii) The appeal is meritorious with a high probability of success.
viii) The Respondent''s financial means are unascertainable and he may not be in a position to make good any loss/damage suffered if the decree herein is enforced and the appeal ultimately succeeds and the decision of the Trial Court is overturned and/or set aside.
ix) The Applicant is willing and able to furnish such security as this Honourable Court may order for the due performance of the decree.
x) The respondents will not be prejudiced in any way if the orders sought herein are granted.
xi) It is in the interest of justice and equity that the prayers sought herein are granted.
3. The respondent, through his replying affidavit dated 26th May 2025, contends that he is a successful litigant entitled to enjoy the fruits of a successful litigation but is being restricted while in pursuit for the same. The Applicant''s present application and appeal are only an attempt to have this matter pending in court thus prevent him from enjoying the fruits of litigation. That the Applicant has not satisfied that the intended appeal is arguable. The Applicant has not given any security for the due performance of the decree. The Applicant has not demonstrated that the orders of stay of execution pending appeal are merited. That no reasonable excuse has been given for the delay in filing the appeal out of time. That in any event, judgment was delivered on 20/3/2025 in the presence of defense counsel and therefore the excuse of not being notified of the date fixed for the delivery of judgment is flimsy as the same was attended ( a copy of the Judgment annexed as Exhibit AAH-1). The Defendant/Applicant filed a letter dated 3/4/2025 seeking for typed proceedings for purposes of appeal on 4/4/2025 and cannot purport to having received instructions to file after expiry of the statutory period (the letter attached as Exhibit AAH-2) and it shows that the application is an afterthought. The Applicant has not shown any substantial loss that he is likely to suffer in the event stay is not granted. That it is therefore incumbent upon this court to dismiss the application with costs as it is in the interest of justice that the same be dismissed.
APPLICANT SUBMISSIONS
4. The Applicant seeks an extension of time to file an appeal, asserting that their counsel received instructions to appeal only after the statutory period had elapsed. The delay in filing the appeal on time resulted from the counsel who represented the Applicant''s counsel during the judgment delivery failing to promptly inform the Applicant''s counsel of the judgment''s outcome. By the time this information reached the Applicant''s counsel, a significant amount of time had passed, leading to a delay in communication with the Applicant and subsequent receipt of appeal instructions. Therefore, the delay was due to an inadvertence on the part of the counsel holding brief for the Applicant. They relied in the case of Philip Keipto Chemweio & Another vs Augustine Kubende (1986) KLR 495.
5. They further submitted that the delay is not inordinate and is excusable under the circumstances. They relied in the case of Almas Hauliers Ltd v Abdulnasir Abukar Hasa (2017) eKLR, in which a delay of four months was found not to be inordinate.
6. The applicant also seeks for orders of stay of execution. He stated that the Respondent is a person of unknown income and may not make good any loss or damage incurred or suffered by the Applicant herein. The Applicant is apprehensive that if stay is not granted, the Respondent would not be in a position to refund the decretal sum paid out, in the event of the appeal resolves in his favor. That the Respondent has not contested and or refuted but has shifted the burden on the Applicant to prove his financial position. The Applicant has deponed that he is a person of means, willing and capable of furnishing security as the Honourable Court may deem just. That the financial position of both the applicant and respondent remain in issue as execution involves money decree as stated in the case of Century Oil Trading Company Limited v Kenya Shell limited Nairobi (Milimani) HCMCA No. 1561 of 2007. That the onus of proof of his financial position remains in the respondent as stated in the case of National industrial Credit Bank Ltd vs Aquinas Francis Wasike and Another (2006) eKLR.
7. They contended that the present application was filed on 9th May 2025, the judgement to be appealed against was delivered on 20th March 2025. The court on delivering the said judgement granted the applicant a stay of execution of 30 days. The applicant’s advocate notified their client of the contents of the judgement on 8th May 2025. It is their submission that the filing of this application was done in a timely manner and the same was not inordinate. They submitted that the applicant has already complied with the deposit of security as was ordered at the 1st instance.
RESPONDENT SUBMISSIONS
8. The respondents submitted that judgment was delivered on 20/3/2025 in the presence of defense counsel holding brief for the firm on record and therefore the excuse of not being notified of the date fixed for the delivery of judgment per the applicants affidavit is flimsy as the same was attended ( a copy of the Judgment attached as Exhibit AAH-1)
9. They contended that in the applicant''s submission, the applicant has changed tune from not being notified of the date fixed for delivery of judgment to blaming the counsel that held their brief alleging that the said counsel delayed to pass the outcome of the said judgment and by the time counsel received information about the delivery of judgment, considerable time had passed. The same caused delay in communicating to the applicant and subsequently getting instructions to file appeal''. On the contrary the defence counsel sought for 30 days stay of execution which lapsed on 20/4/2025.
10. They further submitted that the defendant/Applicant filed a letter dated 3/4/2025 seeking for typed proceedings for purposes of appeal on 4/4/2025 and cannot purport to having received instructions to file after expiry of the statutory period ( the letter is attached as Exhibit AAH-2)
11. It is their submission that in the present case, the length of the delay and the reason for the delay (inaction by the advocate) appear unreasonable and insufficient to justify the extension of time and therefore not deserving of any extension of time as the applicant is not truthful
12. They submitted that the applicant has not demonstrated the substantial loss he is likely to suffer in the event stay is not granted. Secondly the Applicant has not offered any security in court and therefore the Respondent stands to suffer more harm as a result of the injuries sustained in the accident ,mental anguish and worse the pain of being put through an appeal that has no basis when he should have been compensated and given time to start the healing process of the trauma
13. They prayed that if the court is inclined to granting leave to file the appeal, which they are opposed to, then it is their humble opinion that the applicant do pay the respondent half the decretal sum plus costs of the suit and deposit the remaining half in court as security.
ISSUES FOR DETERMINATION
14. The issues arising for determination are:
a) Whether the applicant should be granted leave to appeal out of time
b) Whether the applicant should be granted a stay of execution pending the hearing and determination of the intended appeal
ANALYSIS AND DETERMINATION
Whether the applicant should be granted leave to appeal out of time
15. Section 79G of the Civil Procedure Act provides that:
"Every Appeal from a subordinate court to the High Court shall be filed within a period of 30 days from the date of the decree or order appealed against, excluding from such period any time 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."
16. The power of the court to enlarge time for filing an appeal out of time is provided for under Section 95 of the Civil Procedure Act which states that:
“Where any period is fixed or granted by the court for the doing of any act prescribed or allowed by this Act, the court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired.”
This provision is further supported by Order 50 Rule 6 of the Civil Procedure Rules 2010, which provides that:
“Where a limited time has been fixed for doing any act or taking any proceedings under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed:Provided that the costs of any application to extend such time and of any order made thereon shall be borne by the parties making such application, unless the court orders otherwise.”
17. The principles governing the extension of time were outlined in the case of Kenya Revenue Authority & 2 others v Mount Kenya Bottlers & 4 others [2022] KESC 3 (KLR):
“4. The guiding principles in applications for extension of time were as follows;
a. extension of time was not a right of a party. It was an equitable remedy that was only available to a deserving party at the discretion of the court;
b. a party who sought for extension of time had the burden of laying a basis to the satisfaction of the court;
c. whether the court should exercise the discretion to extend time, was a consideration to be made on a case-to-case basis;
d. whether there was a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;
e. whether there would be any prejudice suffered by the respondents if the extension was granted;
f. whether the application had been brought without undue delay; and whether in certain cases, like election petitions, public interest should be a consideration for extending time.”
18. The applicants submitted that their delay was cause by the fact that judgment was delivered without notice to him and also that the counsel who represented the Applicant''s counsel during the judgment delivery failed to promptly inform the Applicant''s counsel of the judgment''s outcome. By the time this information reached the Applicant''s counsel, a significant amount of time had passed, leading to a delay in communication with the Applicant and subsequent receipt of appeal instructions. In the case Bi-Mach Engineers Limited v James Kahoro Mwangi (2011) eKLR, the court reiterated the duty of an applicant to follow up on instructions given to an advocate and expressed itself as follows:-
The applicant had a duty to pursue his advocates to find out the position on the litigation but there is no disclosure that the applicant bothered to follow up on the matter with his erstwhile advocates. It is not enough simply to accuse the advocate of failure to inform as if there is no duty on the client to pursue his matter. If the advocate was simply guilty of inaction, that is not an excusable mistake which the court may consider with some sympathy.
It was upon the advocate to inquire about what had happened in court from his fellow advocate who was holding brief for him. The applicant also had a duty to follow up on his case. I do not fathom how he was not informed of the judgment delivery date yet he was represented in court during delivery of the Judgment . I find that the reasons given for the delay are contradictory and unsatisfactory and thus is an afterthought. Therefore, the applicant is not entitled to the discretionary orders of this court for leave to appeal out of time.
19. Since the prayer for leave to appeal out of time has failed, I need not delve into the issue of stay of execution. The application is devoid of merit, and I proceed to dismiss it with costs to the respondents.
T.A ODERA
JUDGE
23.10. 25
DELIVERED VIRTUALLY IN THE PRESENCE OF MISS GITONGA HOLDING BRIEF F FOR MR MUMA FOR THE APPELANT & COURT ASSISTANT MR KIPCHIRCHIR
'
a) Spent
b) Spent
c) THAT this Honourable Court be pleased to extend and/or enlarge the time within which to appeal against the judgment of the Honourable I. K. RONO (RM) delivered on 20th March, 2025, in Ogembo Cmcc No. E068 of 2020.
d) THAT this Honourable Court be pleased to grant an order of stay of execution of the judgment and/or decree of the Trial Court in Ogembo Cmcc No. E068 of 2020, entered on 20th March, 2025 pending the hearing and determination of the intended appeal.
e) THAT the costs of this application be provided for.
2. The application is based on the grounds that:
i) The Applicant, being aggrieved and dissatisfied with the finding and/or judgment on liability of the Honourable W I. K. RONO (RM) delivered on 20th March, 2025, in Ogembo Cmcc No. E068 of 2020 thereby seeks to appeal against the said decision.
ii) The prescribed statutory period within which to file the appeal has since lapsed.
iii) The Applicant was not notified of the date fixed for the delivery of the judgment.
iv) The Applicant''s counsel received instructions to file the appeal after expiry of the statutory period within which to file the appeal.
v) The delay in filing the appeal is not inordinate.
vi) There being no stay of execution, the intended appeal shall be rendered nugatory if the orders sought herein are not granted as the Respondent/Decree-Holder, may proceed to execute and thereby attach and sell the Applicant''s property in satisfaction of the decree.
vii) The appeal is meritorious with a high probability of success.
viii) The Respondent''s financial means are unascertainable and he may not be in a position to make good any loss/damage suffered if the decree herein is enforced and the appeal ultimately succeeds and the decision of the Trial Court is overturned and/or set aside.
ix) The Applicant is willing and able to furnish such security as this Honourable Court may order for the due performance of the decree.
x) The respondents will not be prejudiced in any way if the orders sought herein are granted.
xi) It is in the interest of justice and equity that the prayers sought herein are granted.
3. The respondent, through his replying affidavit dated 26th May 2025, contends that he is a successful litigant entitled to enjoy the fruits of a successful litigation but is being restricted while in pursuit for the same. The Applicant''s present application and appeal are only an attempt to have this matter pending in court thus prevent him from enjoying the fruits of litigation. That the Applicant has not satisfied that the intended appeal is arguable. The Applicant has not given any security for the due performance of the decree. The Applicant has not demonstrated that the orders of stay of execution pending appeal are merited. That no reasonable excuse has been given for the delay in filing the appeal out of time. That in any event, judgment was delivered on 20/3/2025 in the presence of defense counsel and therefore the excuse of not being notified of the date fixed for the delivery of judgment is flimsy as the same was attended ( a copy of the Judgment annexed as Exhibit AAH-1). The Defendant/Applicant filed a letter dated 3/4/2025 seeking for typed proceedings for purposes of appeal on 4/4/2025 and cannot purport to having received instructions to file after expiry of the statutory period (the letter attached as Exhibit AAH-2) and it shows that the application is an afterthought. The Applicant has not shown any substantial loss that he is likely to suffer in the event stay is not granted. That it is therefore incumbent upon this court to dismiss the application with costs as it is in the interest of justice that the same be dismissed.
APPLICANT SUBMISSIONS
4. The Applicant seeks an extension of time to file an appeal, asserting that their counsel received instructions to appeal only after the statutory period had elapsed. The delay in filing the appeal on time resulted from the counsel who represented the Applicant''s counsel during the judgment delivery failing to promptly inform the Applicant''s counsel of the judgment''s outcome. By the time this information reached the Applicant''s counsel, a significant amount of time had passed, leading to a delay in communication with the Applicant and subsequent receipt of appeal instructions. Therefore, the delay was due to an inadvertence on the part of the counsel holding brief for the Applicant. They relied in the case of Philip Keipto Chemweio & Another vs Augustine Kubende (1986) KLR 495.
5. They further submitted that the delay is not inordinate and is excusable under the circumstances. They relied in the case of Almas Hauliers Ltd v Abdulnasir Abukar Hasa (2017) eKLR, in which a delay of four months was found not to be inordinate.
6. The applicant also seeks for orders of stay of execution. He stated that the Respondent is a person of unknown income and may not make good any loss or damage incurred or suffered by the Applicant herein. The Applicant is apprehensive that if stay is not granted, the Respondent would not be in a position to refund the decretal sum paid out, in the event of the appeal resolves in his favor. That the Respondent has not contested and or refuted but has shifted the burden on the Applicant to prove his financial position. The Applicant has deponed that he is a person of means, willing and capable of furnishing security as the Honourable Court may deem just. That the financial position of both the applicant and respondent remain in issue as execution involves money decree as stated in the case of Century Oil Trading Company Limited v Kenya Shell limited Nairobi (Milimani) HCMCA No. 1561 of 2007. That the onus of proof of his financial position remains in the respondent as stated in the case of National industrial Credit Bank Ltd vs Aquinas Francis Wasike and Another (2006) eKLR.
7. They contended that the present application was filed on 9th May 2025, the judgement to be appealed against was delivered on 20th March 2025. The court on delivering the said judgement granted the applicant a stay of execution of 30 days. The applicant’s advocate notified their client of the contents of the judgement on 8th May 2025. It is their submission that the filing of this application was done in a timely manner and the same was not inordinate. They submitted that the applicant has already complied with the deposit of security as was ordered at the 1st instance.
RESPONDENT SUBMISSIONS
8. The respondents submitted that judgment was delivered on 20/3/2025 in the presence of defense counsel holding brief for the firm on record and therefore the excuse of not being notified of the date fixed for the delivery of judgment per the applicants affidavit is flimsy as the same was attended ( a copy of the Judgment attached as Exhibit AAH-1)
9. They contended that in the applicant''s submission, the applicant has changed tune from not being notified of the date fixed for delivery of judgment to blaming the counsel that held their brief alleging that the said counsel delayed to pass the outcome of the said judgment and by the time counsel received information about the delivery of judgment, considerable time had passed. The same caused delay in communicating to the applicant and subsequently getting instructions to file appeal''. On the contrary the defence counsel sought for 30 days stay of execution which lapsed on 20/4/2025.
10. They further submitted that the defendant/Applicant filed a letter dated 3/4/2025 seeking for typed proceedings for purposes of appeal on 4/4/2025 and cannot purport to having received instructions to file after expiry of the statutory period ( the letter is attached as Exhibit AAH-2)
11. It is their submission that in the present case, the length of the delay and the reason for the delay (inaction by the advocate) appear unreasonable and insufficient to justify the extension of time and therefore not deserving of any extension of time as the applicant is not truthful
12. They submitted that the applicant has not demonstrated the substantial loss he is likely to suffer in the event stay is not granted. Secondly the Applicant has not offered any security in court and therefore the Respondent stands to suffer more harm as a result of the injuries sustained in the accident ,mental anguish and worse the pain of being put through an appeal that has no basis when he should have been compensated and given time to start the healing process of the trauma
13. They prayed that if the court is inclined to granting leave to file the appeal, which they are opposed to, then it is their humble opinion that the applicant do pay the respondent half the decretal sum plus costs of the suit and deposit the remaining half in court as security.
ISSUES FOR DETERMINATION
14. The issues arising for determination are:
a) Whether the applicant should be granted leave to appeal out of time
b) Whether the applicant should be granted a stay of execution pending the hearing and determination of the intended appeal
ANALYSIS AND DETERMINATION
Whether the applicant should be granted leave to appeal out of time
15. Section 79G of the Civil Procedure Act provides that:
"Every Appeal from a subordinate court to the High Court shall be filed within a period of 30 days from the date of the decree or order appealed against, excluding from such period any time 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."
16. The power of the court to enlarge time for filing an appeal out of time is provided for under Section 95 of the Civil Procedure Act which states that:
“Where any period is fixed or granted by the court for the doing of any act prescribed or allowed by this Act, the court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired.”
This provision is further supported by Order 50 Rule 6 of the Civil Procedure Rules 2010, which provides that:
“Where a limited time has been fixed for doing any act or taking any proceedings under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed:Provided that the costs of any application to extend such time and of any order made thereon shall be borne by the parties making such application, unless the court orders otherwise.”
17. The principles governing the extension of time were outlined in the case of Kenya Revenue Authority & 2 others v Mount Kenya Bottlers & 4 others [2022] KESC 3 (KLR):
“4. The guiding principles in applications for extension of time were as follows;
a. extension of time was not a right of a party. It was an equitable remedy that was only available to a deserving party at the discretion of the court;
b. a party who sought for extension of time had the burden of laying a basis to the satisfaction of the court;
c. whether the court should exercise the discretion to extend time, was a consideration to be made on a case-to-case basis;
d. whether there was a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;
e. whether there would be any prejudice suffered by the respondents if the extension was granted;
f. whether the application had been brought without undue delay; and whether in certain cases, like election petitions, public interest should be a consideration for extending time.”
18. The applicants submitted that their delay was cause by the fact that judgment was delivered without notice to him and also that the counsel who represented the Applicant''s counsel during the judgment delivery failed to promptly inform the Applicant''s counsel of the judgment''s outcome. By the time this information reached the Applicant''s counsel, a significant amount of time had passed, leading to a delay in communication with the Applicant and subsequent receipt of appeal instructions. In the case Bi-Mach Engineers Limited v James Kahoro Mwangi (2011) eKLR, the court reiterated the duty of an applicant to follow up on instructions given to an advocate and expressed itself as follows:-
The applicant had a duty to pursue his advocates to find out the position on the litigation but there is no disclosure that the applicant bothered to follow up on the matter with his erstwhile advocates. It is not enough simply to accuse the advocate of failure to inform as if there is no duty on the client to pursue his matter. If the advocate was simply guilty of inaction, that is not an excusable mistake which the court may consider with some sympathy.
It was upon the advocate to inquire about what had happened in court from his fellow advocate who was holding brief for him. The applicant also had a duty to follow up on his case. I do not fathom how he was not informed of the judgment delivery date yet he was represented in court during delivery of the Judgment . I find that the reasons given for the delay are contradictory and unsatisfactory and thus is an afterthought. Therefore, the applicant is not entitled to the discretionary orders of this court for leave to appeal out of time.
19. Since the prayer for leave to appeal out of time has failed, I need not delve into the issue of stay of execution. The application is devoid of merit, and I proceed to dismiss it with costs to the respondents.
T.A ODERA
JUDGE
23.10. 25
DELIVERED VIRTUALLY IN THE PRESENCE OF MISS GITONGA HOLDING BRIEF F FOR MR MUMA FOR THE APPELANT & COURT ASSISTANT MR KIPCHIRCHIR
'