1. The marriage between the respondent and the appellant was dissolved on 30th May 2025. In the judgment of even date, the learned Principal Kadhi Abdiaziz Maalim Mohamed found that the respondent took a loan of KES 600,000 to celebrate their wedding. He further found that it was the Appellant's duty to repay the said loan. The learned Kadhi ordered the defendant in the court below to pay KES 600,000 with immediate effect. The said decision aggrieved the Appellant, who thereafter filed an appeal to this court.
2. In the memorandum of appeal filed, the judgment of the learned Kadhi was impugned on the grounds that he assumed jurisdiction he lacked by determining a question of civil indebtedness contrary to the jurisdiction of that court under Section 5 of the Kadhi’s Court Act; by ignoring the appellant’s evidence in their entirety; by failing to demonstrate neutrality and in showing bias; and by not considering the law, the evidence, and the submissions tendered by the appellant. He contended that the decision of the learned Kadhi was manifestly erroneous. Thus, he sought to have the Judgment delivered on 30th May 2025 set aside and/or varied by this honourable court.
3. This court is on transfer and won’t consider the appeal. That will be the task of the successor court. What I must consider, however, is whether there should be a stay of execution of the impugned judgment and whether the proceedings in the Court below should be stayed. The application is brought under section 1, 1A, 3, 3A and 63 (e), 75 (1) and 95 of the Civil Procedure Act, and under Order 22 Rule 25, Order 43 Rule 2 and Order 51 Rule 51 of the Civil Procedure Rules, 2010. The appellant also seeks leave to file an out-of-time appeal.
4. The application is opposed. The respondent filed a replying affidavit, sworn on 8th October 2025, in which she deposed that the appellant was undeserving of the orders sought by him. The respondent deprecated what she saw as the appellant's indolence in filing an appeal late, without leave, and thereafter seeking to have the court validate the illegality. She accused the appellant of trying to mislead the court by asserting that he didn’t participate in the proceedings before the court below, when in fact he did.
5. The court directed that the application would be canvassed by way of written submissions. The court’s direction notwithstanding, only the respondent filed written submissions. The respondent's written submissions are dated 29 October 2025. The submissions are based on the grounds I have already stated and which I need not rehash.
6. Under section 79G of the Civil Procedure Act, an appeal from the subordinate court to the High Court must be filed within 30 days of the date the decision is made. Rule 86(4) of the Kadhis' Courts (Procedure and Practice) Rules, 2020 similarly states that, “The notice of appeal shall be filed within thirty days from the day on which the decision was pronounced, and shall state whether the whole or part only, and what part, of the decision is appealed against.”
7. The Respondent therefore ought to have filed an appeal by 30th June 2025. He did not do so. An appeal has already been filed in contravention of the Rules. Should the court permit such deliberate infraction of the Rules? I am afraid, not. Rules exist to ensure fairness in the trial process. A fair trial is a basic right which, under our constitution, cannot be limited.
8. In my view, an appeal filed out of time without leave is a nullity. It cannot serve as the foundation for a stay application. In making this bold assertion, I am guided by the decision of the Supreme Court in Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR) where the apex court held in part that:
“54 To file an appeal out of time and seek the court to extend time is presumptive and inappropriate. " No appeal can be filed out of time without leave of the court. Such a filing 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. It is unfortunate that Petition No 10 of 2014 has been accorded a reference number in this court’s registry. This is irregular as that document is unknown in law and the same should be struck out. Where one intends to file an appeal out of time and seeks extension of time, the much he can do is to annex the draft intended petition of appeal for the court’s perusal when making his application for extension of time; and not to file an appeal and seek to legalize it. Petition No 10 of 2014 having been filed out of time and without leave (an order of this court extending time), is expunged from the court’s record.”
9. The above holding binds me under the doctrine of stare decisis. I applied the said holding in the case of Mohamed & another v another & another [2026] KEHC 4277 (KLR), where I ruled that:
“Applying the holding above to this case leads me to one conclusion: that the appeal filed herein is defective. Accordingly, the appeal is struck out.”
10. That being the case, the application dated 16th September 2026 is without merit and is dismissed. The appeal filed herein without leave is struck out. In the interests of justice, I grant the appellant leave to file an appeal out of time. However, a proper appeal must be filed within 30 days of the date hereof.
11. Each party shall bear his or her own costs.
12. It is so ordered.
Dated and signed in Nairobi this 5th day of May 2026. Delivered virtually through Microsoft TEAMS.
2. In the memorandum of appeal filed, the judgment of the learned Kadhi was impugned on the grounds that he assumed jurisdiction he lacked by determining a question of civil indebtedness contrary to the jurisdiction of that court under Section 5 of the Kadhi’s Court Act; by ignoring the appellant’s evidence in their entirety; by failing to demonstrate neutrality and in showing bias; and by not considering the law, the evidence, and the submissions tendered by the appellant. He contended that the decision of the learned Kadhi was manifestly erroneous. Thus, he sought to have the Judgment delivered on 30th May 2025 set aside and/or varied by this honourable court.
3. This court is on transfer and won’t consider the appeal. That will be the task of the successor court. What I must consider, however, is whether there should be a stay of execution of the impugned judgment and whether the proceedings in the Court below should be stayed. The application is brought under section 1, 1A, 3, 3A and 63 (e), 75 (1) and 95 of the Civil Procedure Act, and under Order 22 Rule 25, Order 43 Rule 2 and Order 51 Rule 51 of the Civil Procedure Rules, 2010. The appellant also seeks leave to file an out-of-time appeal.
4. The application is opposed. The respondent filed a replying affidavit, sworn on 8th October 2025, in which she deposed that the appellant was undeserving of the orders sought by him. The respondent deprecated what she saw as the appellant's indolence in filing an appeal late, without leave, and thereafter seeking to have the court validate the illegality. She accused the appellant of trying to mislead the court by asserting that he didn’t participate in the proceedings before the court below, when in fact he did.
5. The court directed that the application would be canvassed by way of written submissions. The court’s direction notwithstanding, only the respondent filed written submissions. The respondent's written submissions are dated 29 October 2025. The submissions are based on the grounds I have already stated and which I need not rehash.
6. Under section 79G of the Civil Procedure Act, an appeal from the subordinate court to the High Court must be filed within 30 days of the date the decision is made. Rule 86(4) of the Kadhis' Courts (Procedure and Practice) Rules, 2020 similarly states that, “The notice of appeal shall be filed within thirty days from the day on which the decision was pronounced, and shall state whether the whole or part only, and what part, of the decision is appealed against.”
7. The Respondent therefore ought to have filed an appeal by 30th June 2025. He did not do so. An appeal has already been filed in contravention of the Rules. Should the court permit such deliberate infraction of the Rules? I am afraid, not. Rules exist to ensure fairness in the trial process. A fair trial is a basic right which, under our constitution, cannot be limited.
8. In my view, an appeal filed out of time without leave is a nullity. It cannot serve as the foundation for a stay application. In making this bold assertion, I am guided by the decision of the Supreme Court in Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR) where the apex court held in part that:
“54 To file an appeal out of time and seek the court to extend time is presumptive and inappropriate. " No appeal can be filed out of time without leave of the court. Such a filing 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. It is unfortunate that Petition No 10 of 2014 has been accorded a reference number in this court’s registry. This is irregular as that document is unknown in law and the same should be struck out. Where one intends to file an appeal out of time and seeks extension of time, the much he can do is to annex the draft intended petition of appeal for the court’s perusal when making his application for extension of time; and not to file an appeal and seek to legalize it. Petition No 10 of 2014 having been filed out of time and without leave (an order of this court extending time), is expunged from the court’s record.”
9. The above holding binds me under the doctrine of stare decisis. I applied the said holding in the case of Mohamed & another v another & another [2026] KEHC 4277 (KLR), where I ruled that:
“Applying the holding above to this case leads me to one conclusion: that the appeal filed herein is defective. Accordingly, the appeal is struck out.”
10. That being the case, the application dated 16th September 2026 is without merit and is dismissed. The appeal filed herein without leave is struck out. In the interests of justice, I grant the appellant leave to file an appeal out of time. However, a proper appeal must be filed within 30 days of the date hereof.
11. Each party shall bear his or her own costs.
12. It is so ordered.
Dated and signed in Nairobi this 5th day of May 2026. Delivered virtually through Microsoft TEAMS.