REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MARSABIT
MISC APP NO. E005 OF 2026
DIRECTLINE ASSURANCE CO LTD………..…….…………APPLICANT
VERSUS
ALI GALGALO MOHAMED
Suing as the legal representative of the Estate of the Late NASIBO MOHAMED ALI…………………………….……….…. RESPONDENT
R U L I N G
A. Introduction
1. The application before this court for determination is the Applicants Notice of Motion application dated 18 th June 2026 brought pursuant to provisions of Section 1A, 1B,3, 3A, and 79G of the Civil Procedure Act, Order 42 Rule 1 and 6, Order 50 Rule 6 d Order 51an of the Civil Procedure Rules 2010, and all other enabling provisions of law. The applicant prays for orders that;
a) Spent
b) Spent
c) That the applicant, Directline Assurance Company Ltd, be granted leave to appeal out of time against the ruling delivered on 27 th August 2025 in Marsabit CMCC Civil Suit No E014 of 2025 by Hon S.K. Arome striking out its statement of Defence.
d) That pending hearing and determination of the intended appeal, this Honourable court be pleased to grant a formal order for stay of execution of the judgement of Kshs 7,243,545/= entered against the Appellant in Marsabit CMCC Civil Suit No E14 of 2025.
e) That the annexed Memorandum of Appeal be deemed duly filed upon payment of the requisite court fees
f) That costs of this Application be provided for.
2. This application is supported by the grounds on the face of the said application and the Supporting affidavit of the applicants, claims manager, one Mr Kelvin Ngure dated 18 th June 2026, where he averred that the respondent did file an application before the trial court, dated 18 th June 2025 seeking to strike out their defence and that summary judgment be entered against them, which application was heard on merit and allowed vide a ruling dated 27 th August 2025.
3. They were dissatisfied by the said ruling and thus had filed the present application, which unfortunately had been filed late, due to their inability to obtain certified copies of the typed proceedings and ruling, to enable them give proper legal instructions and to also prepare a competent appeal. The intended appeal was arguable and raised triable issues of law and contract, specifically regarding insurance coverage limits under Cap 405, lack of privity and the rebuttable nature of the police abstract.
4. They thus stood to suffer heavy financial loss, should the decree be enforced, which would render the said appeal to be nugatory. They had filed this application in good faith, without unreasonable delay and the respondent would not suffer any prejudice should the orders sought be granted, incapable of being remedied by costs.
5. The respondent opposed this Application through his replying affidavit dated 23 rd July 2026, where averred that the application filed was devoid of merit, was an afterthought and was meant to delay justice and deny him the fruits of successful litigation. Further, he averred that the applicants had all along been aware of the ruling delivered, had slept on their rights, and had only moved court in bad faith after execution process had been levied against them.
6. The respondent thus prayed that this application be dismissed and the applicants be condemned to pay costs thereof.
7. Analysis & Determination
8. I have carefully considered the Application, and the affidavits filed in support and in opposition thereto and the applicants’ submissions filed in support thereof. The only issue which arises for determination is whether the applicants should be granted leave to Appeal out of time against the ruling/order delivered in Marsabit CMCC Civil Suit No E14 of 2025 by Hon S.K. Arome (PM) dated 27 th August 2025 and secondly if stay of execution should be granted pending determination of the Appeal, they intend to file.
9. 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 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.”
10. The said provision is to be read with Order 50 rule 6 of the Civil procedure Rules which further 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 powers to enlarge time upon such terms(if any) as the justice of the case may require, and such enlargement maybe ordered although the application for the same is not made until after the expiration of the time appointed or allowed.”
11. The Court of Appeal in the case of Thuita Mwangi V Kenya Airways Ltd [2003] eKLR discussed some of the factors that aid Courts in exercising the discretion whether to extend time to file an appeal out of time, They include the following:
i ) The period of delay;
ii) The reason for the delay;
iii)The arguability of the appeal;
iv)The degree of prejudice which could be suffered by the if Respondent the extension is granted;
v)The importance of compliance with time limits to the particular litigation or issue; and
vi) The effect if any on the administration of justice or public interest if any is involved.
12. Considering the above parameters as eloquently expounded in the above case law, it is common ground that extension of time is not a right of a party but could be granted as an equitable remedy only when a deserving party sufficiently explains the reason for delay.
13. In this instance, this application has been filed about 10 months after the said ruling. Considering the facts herein, I do find that delay in filing this application is inordinate and the explanation given for failure to do so, too is lame and escapist. The applicant has not filed any evidence to support their contention that they had even sought for the impugned ruling or sent reminder to court requesting for the same. Further they have also not rebutted the respondent’s averment that they have all along been aware of the said ruling and only opted to move court, when execution process was levied.
14. In the circumstance, I do find and hold that no valid ground/ reason has been advance, to enable the court exercise its discretion in favour of the applicant.
C. DISPOSITITON
15. The upshot is that the application dated 18 th June 2026 has no merit and is dismissed with costs to the respondent.
16. The same are assessed at Kshs 30,000/= all inclusive.
17. Stay of execution is granted for 30 days.
18. It is so ordered .
READ, SIGNED and DELIVERED virtually at MARSABIT on this ……6th ……… day of August 2026.
FRANCIS RAYOLA OLEL
JUDGE
Delivered on the virtual platform, Teams this …6 th …… day of AUGUST, 2026.
In the presence of;
……………N/A…………………….for Appellant
………………N/A………………….for Respondent
……………JARSO…………………….Court Assistant
MARSABIT HCC MISC E005 OF 20262
IN THE HIGH COURT OF KENYA AT MARSABIT
MISC APP NO. E005 OF 2026
DIRECTLINE ASSURANCE CO LTD………..…….…………APPLICANT
VERSUS
ALI GALGALO MOHAMED
Suing as the legal representative of the Estate of the Late NASIBO MOHAMED ALI…………………………….……….…. RESPONDENT
R U L I N G
A. Introduction
1. The application before this court for determination is the Applicants Notice of Motion application dated 18 th June 2026 brought pursuant to provisions of Section 1A, 1B,3, 3A, and 79G of the Civil Procedure Act, Order 42 Rule 1 and 6, Order 50 Rule 6 d Order 51an of the Civil Procedure Rules 2010, and all other enabling provisions of law. The applicant prays for orders that;
a) Spent
b) Spent
c) That the applicant, Directline Assurance Company Ltd, be granted leave to appeal out of time against the ruling delivered on 27 th August 2025 in Marsabit CMCC Civil Suit No E014 of 2025 by Hon S.K. Arome striking out its statement of Defence.
d) That pending hearing and determination of the intended appeal, this Honourable court be pleased to grant a formal order for stay of execution of the judgement of Kshs 7,243,545/= entered against the Appellant in Marsabit CMCC Civil Suit No E14 of 2025.
e) That the annexed Memorandum of Appeal be deemed duly filed upon payment of the requisite court fees
f) That costs of this Application be provided for.
2. This application is supported by the grounds on the face of the said application and the Supporting affidavit of the applicants, claims manager, one Mr Kelvin Ngure dated 18 th June 2026, where he averred that the respondent did file an application before the trial court, dated 18 th June 2025 seeking to strike out their defence and that summary judgment be entered against them, which application was heard on merit and allowed vide a ruling dated 27 th August 2025.
3. They were dissatisfied by the said ruling and thus had filed the present application, which unfortunately had been filed late, due to their inability to obtain certified copies of the typed proceedings and ruling, to enable them give proper legal instructions and to also prepare a competent appeal. The intended appeal was arguable and raised triable issues of law and contract, specifically regarding insurance coverage limits under Cap 405, lack of privity and the rebuttable nature of the police abstract.
4. They thus stood to suffer heavy financial loss, should the decree be enforced, which would render the said appeal to be nugatory. They had filed this application in good faith, without unreasonable delay and the respondent would not suffer any prejudice should the orders sought be granted, incapable of being remedied by costs.
5. The respondent opposed this Application through his replying affidavit dated 23 rd July 2026, where averred that the application filed was devoid of merit, was an afterthought and was meant to delay justice and deny him the fruits of successful litigation. Further, he averred that the applicants had all along been aware of the ruling delivered, had slept on their rights, and had only moved court in bad faith after execution process had been levied against them.
6. The respondent thus prayed that this application be dismissed and the applicants be condemned to pay costs thereof.
7. Analysis & Determination
8. I have carefully considered the Application, and the affidavits filed in support and in opposition thereto and the applicants’ submissions filed in support thereof. The only issue which arises for determination is whether the applicants should be granted leave to Appeal out of time against the ruling/order delivered in Marsabit CMCC Civil Suit No E14 of 2025 by Hon S.K. Arome (PM) dated 27 th August 2025 and secondly if stay of execution should be granted pending determination of the Appeal, they intend to file.
9. 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 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.”
10. The said provision is to be read with Order 50 rule 6 of the Civil procedure Rules which further 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 powers to enlarge time upon such terms(if any) as the justice of the case may require, and such enlargement maybe ordered although the application for the same is not made until after the expiration of the time appointed or allowed.”
11. The Court of Appeal in the case of Thuita Mwangi V Kenya Airways Ltd [2003] eKLR discussed some of the factors that aid Courts in exercising the discretion whether to extend time to file an appeal out of time, They include the following:
i ) The period of delay;
ii) The reason for the delay;
iii)The arguability of the appeal;
iv)The degree of prejudice which could be suffered by the if Respondent the extension is granted;
v)The importance of compliance with time limits to the particular litigation or issue; and
vi) The effect if any on the administration of justice or public interest if any is involved.
12. Considering the above parameters as eloquently expounded in the above case law, it is common ground that extension of time is not a right of a party but could be granted as an equitable remedy only when a deserving party sufficiently explains the reason for delay.
13. In this instance, this application has been filed about 10 months after the said ruling. Considering the facts herein, I do find that delay in filing this application is inordinate and the explanation given for failure to do so, too is lame and escapist. The applicant has not filed any evidence to support their contention that they had even sought for the impugned ruling or sent reminder to court requesting for the same. Further they have also not rebutted the respondent’s averment that they have all along been aware of the said ruling and only opted to move court, when execution process was levied.
14. In the circumstance, I do find and hold that no valid ground/ reason has been advance, to enable the court exercise its discretion in favour of the applicant.
C. DISPOSITITON
15. The upshot is that the application dated 18 th June 2026 has no merit and is dismissed with costs to the respondent.
16. The same are assessed at Kshs 30,000/= all inclusive.
17. Stay of execution is granted for 30 days.
18. It is so ordered .
READ, SIGNED and DELIVERED virtually at MARSABIT on this ……6th ……… day of August 2026.
FRANCIS RAYOLA OLEL
JUDGE
Delivered on the virtual platform, Teams this …6 th …… day of AUGUST, 2026.
In the presence of;
……………N/A…………………….for Appellant
………………N/A………………….for Respondent
……………JARSO…………………….Court Assistant
MARSABIT HCC MISC E005 OF 20262