A. INTRODUCTION
1. Before this Court is the Notice of Motion dated 13th June 2025 by the Applicant. The application seeks, in substance, leave to appeal out of time against the judgment delivered on 16th April 2025 in Oyugis PMCC No. 174 of 2022, and an order of stay of execution of the said judgment and decree pending the hearing and determination of the intended appeal.
2. The motion is expressed to be brought under sections 1A, 3A, 79G and 95 of the Civil Procedure Act, Order 42 rule 6, Order 50 rule 6 and Order 51 rule 1 of the Civil Procedure Rules, among other provisions.
3. The application is supported by the affidavits of Richard Mogire and Consolata Munji, both sworn on 13th June 2025. The Respondent opposed the application through the replying affidavit of Everline Akinyi Kuke sworn on 30th June 2025. The motion and reply show that the impugned judgment was delivered on 16th April 2025, the decretal amount is Kshs. 1,806,000/= after contribution, and the Applicant attributes the delay to difficulties in obtaining the judgment in time, while the Respondent contends that the delay is unexplained and that the application is meant to delay enjoyment of the fruits of judgment.
B. THE APPLICATION
4. The Applicant prays for:
a. leave to file an appeal out of time against the judgment delivered on 16th April 2025 in Oyugis PMCC No. 174 of 2022;
b. stay of execution of the said judgment and decree pending the hearing and determination of the application and the intended appeal; and
c. an order that the decretal sum be deposited in a joint interest earning account in the names of both advocates pending appeal.
5. The grounds upon which the application rests are that the Applicant’s counsel was allegedly logged into court on the date of delivery but the matter was not called out; that a copy of the judgment was not availed in time; that the Applicant only obtained a copy of the decree on 7th May 2025; that the delay was not deliberate; and that the intended appeal is arguable, particularly on liability, including the complaint that the trial court failed to consider the role of the intended third party. The draft memorandum of appeal raises complaints on liability, quantum, and alleged failure to consider the Applicant’s submissions and the contribution of the third party.
C. RESPONSE
6. The 1st Respondent opposes the motion. Her position is that judgment was delivered in open court on 16th April 2025 as scheduled; that the Applicant was aware, or ought to have been aware, of the delivery date; that the delay of close to two months is inordinate; and that no sufficient cause has been shown for failure to lodge the appeal in time.
7. On stay, the Respondent argues that the Applicant has not demonstrated substantial loss, that the allegation that the Respondent cannot refund the decretal sum is unsupported, and that the application is an attempt to deny the successful litigant the fruits of judgment. In the alternative, the Respondent proposes that three quarters of the decretal sum be released to her and the balance be deposited in court pending appeal.
D. ISSUES FOR DETERMINATION
8. Having considered the motion, the affidavits on record and the material presented, the issues for determination are:
a. whether the Applicant has shown good and sufficient cause to warrant leave to appeal out of time;
b. whether the Applicant has satisfied the conditions for grant of stay of execution pending appeal; and
c. what orders should issue as to costs.
E. ANALYSIS AND DETERMINATION
(i) Whether leave to appeal out of time should be granted
9. The governing provision is section 79G of the Civil Procedure Act, which requires an appeal from a subordinate court to the High Court to be filed within thirty days from the date of the decree or order appealed against, but gives the Court power to admit an appeal out of time if the appellant satisfies the Court that there was good and sufficient cause for not filing the appeal in time.
10. The principles applicable in considering extension of time are well settled. The Court exercises a judicial discretion, guided principally by the length of delay, the reason for the delay, the possible merits of the intended appeal, and the degree of prejudice to the respondent. Those factors were restated by the Court of Appeal in Thuita Mwangi v Kenya Airways Ltd [2003] KECA 201 (KLR) drawing from Leo Sila Mutiso v Rose Hellen Wangari Mwangi.
11. In the present matter, judgment was delivered on 16th April 2025. Time for lodging an appeal lapsed on or about 16th May 2025. The present application was filed on 23rd June 2025. The delay after lapse of the statutory period is therefore slightly over one month. In the circumstances of this case, that delay is not so inordinate as to be beyond redemption. The court file shows that the decree was issued on 7th May 2025, and the Applicant has consistently maintained that a copy of the judgment was not availed in time. Although no formal letter bespeaking proceedings or judgment was annexed, and the explanation is therefore not wholly satisfactory, I am nonetheless not persuaded that the delay was so contumelious or so prolonged as to shut the Applicant out from the seat of justice altogether.
12. On whether the intended appeal is arguable , the draft memorandum raises complaints that the trial court erred in apportioning liability at 70:30, failed to consider the contribution of the intended third party, and failed to properly evaluate the Applicant’s case on both liability and quantum. At this stage, the Court is not required to determine the merits of those grounds. It suffices that the intended appeal is not frivolous. Based on the material placed before me, I am satisfied that the intended appeal is arguable.
13. As regards prejudice, the Respondent is entitled to enjoy the fruits of her judgment, and that factor must always weigh heavily with the Court. However, that right must be balanced against the equally important right of appeal. In the present case, the prejudice to the Respondent can be alleviated by an appropriate order on security and expeditious timelines.
14. I therefore find that, on balance, the Applicant has shown sufficient cause to warrant leave to appeal out of time.
(ii) Whether stay of execution pending appeal should issue
15. The principles governing stay pending appeal are set out in Order 42 rule 6(2) of the Civil Procedure Rules. An applicant must show:
a. that substantial loss may result unless the order is made;
b. that the application was made without unreasonable delay; and
c. that such security as the court orders for the due performance of the decree has been given.
16. In Halai & Another v Thornton & Turpin (1963) Ltd [1990] KECA 65 (KLR), the Court of Appeal affirmed that those conditions are mandatory for the High Court when considering stay under Order 42 rule 6.
17. On substantial loss, the Applicant states that if the decretal sum is paid out, recovery may be difficult because the Respondent’s financial means are unknown. The Respondent, on the other hand, merely states that the allegation is speculative. The Court of Appeal in National Industrial Credit Bank Ltd v Aquinas Francis Wasike & Another [2006] KECA 333 (KLR) stated that once an applicant expresses a reasonable fear that a respondent may be unable to refund the decretal sum, the evidential burden shifts to the respondent to show what assets or means he or she has.
18. In this case, the Respondent did not place before the Court any material demonstrating her ability to refund the decretal sum if the appeal succeeds. That omission lends some force to the Applicant’s apprehension. I am therefore satisfied that the Applicant has demonstrated the likelihood of substantial loss if execution proceeds and the decretal sum is paid out in full before the appeal is heard.
19. On delay, I have already found that although the delay is not perfectly explained, it is not inordinate in the circumstances.
20. On security, the Applicant has expressly offered to deposit the entire decretal sum of Kshs. 1,806,000/= in a joint interest earning account. That, in my view, is sufficient and reasonable security. The Respondent urged the Court to release part of the decretal sum to her immediately. While that is an available approach in appropriate cases, I am not persuaded that it is the fairest order here, particularly because the intended appeal challenges both liability and quantum and the Applicant has offered full security.
21. The Court’s discretion on stay is intended to preserve the subject matter so that an appeal, if successful, is not rendered nugatory, while at the same time ensuring that a successful litigant is not kept out of the fruits of judgment without adequate cause. That principle is reflected in Butt v Rent Restriction Tribunal [1979] KECA 22 (KLR).
22. In the totality of the matter, I am satisfied that this is a proper case for grant of stay pending appeal, on strict conditions as to time and security.
F. DISPOSITION
23. The Notice of Motion dated 13th June 2025 is allowed on the following terms:
a. Leave is hereby granted to the Applicant to file an appeal out of time against the judgment delivered on 16th April 2025 in Oyugis PMCC No. 174 of 2022.
b. The Memorandum of Appeal shall be filed and served within fourteen (14) days from the date hereof.
c. There shall be a stay of execution of the judgment and decree in Oyugis PMCC No. 174 of 2022 pending the hearing and determination of the intended appeal.
d. The stay granted in (c) above is condition that the applicant deposits the entire decretal the sum of Kshs. 1,806,000/= in a joint interest earning account to be opened in the names of counsel for the Applicant and counsel for the 1st Respondent within thirty (30) days from the date of this ruling.
e. In default of compliance with order (d) above within the stipulated period, the stay herein shall automatically lapse without further order of the Court.
f. Costs of the application to the respondent. .
24. It is so ordered.
T.A ODERA
JUDGE
25.3.26
DELIVERED, VIRTUALLY VIA TEAMS PLATFORM ON THIS 25TH DAY OF MARCH 2026, IN THE PRESENCE OF CA – MR ONKUNDI
1. Before this Court is the Notice of Motion dated 13th June 2025 by the Applicant. The application seeks, in substance, leave to appeal out of time against the judgment delivered on 16th April 2025 in Oyugis PMCC No. 174 of 2022, and an order of stay of execution of the said judgment and decree pending the hearing and determination of the intended appeal.
2. The motion is expressed to be brought under sections 1A, 3A, 79G and 95 of the Civil Procedure Act, Order 42 rule 6, Order 50 rule 6 and Order 51 rule 1 of the Civil Procedure Rules, among other provisions.
3. The application is supported by the affidavits of Richard Mogire and Consolata Munji, both sworn on 13th June 2025. The Respondent opposed the application through the replying affidavit of Everline Akinyi Kuke sworn on 30th June 2025. The motion and reply show that the impugned judgment was delivered on 16th April 2025, the decretal amount is Kshs. 1,806,000/= after contribution, and the Applicant attributes the delay to difficulties in obtaining the judgment in time, while the Respondent contends that the delay is unexplained and that the application is meant to delay enjoyment of the fruits of judgment.
B. THE APPLICATION
4. The Applicant prays for:
a. leave to file an appeal out of time against the judgment delivered on 16th April 2025 in Oyugis PMCC No. 174 of 2022;
b. stay of execution of the said judgment and decree pending the hearing and determination of the application and the intended appeal; and
c. an order that the decretal sum be deposited in a joint interest earning account in the names of both advocates pending appeal.
5. The grounds upon which the application rests are that the Applicant’s counsel was allegedly logged into court on the date of delivery but the matter was not called out; that a copy of the judgment was not availed in time; that the Applicant only obtained a copy of the decree on 7th May 2025; that the delay was not deliberate; and that the intended appeal is arguable, particularly on liability, including the complaint that the trial court failed to consider the role of the intended third party. The draft memorandum of appeal raises complaints on liability, quantum, and alleged failure to consider the Applicant’s submissions and the contribution of the third party.
C. RESPONSE
6. The 1st Respondent opposes the motion. Her position is that judgment was delivered in open court on 16th April 2025 as scheduled; that the Applicant was aware, or ought to have been aware, of the delivery date; that the delay of close to two months is inordinate; and that no sufficient cause has been shown for failure to lodge the appeal in time.
7. On stay, the Respondent argues that the Applicant has not demonstrated substantial loss, that the allegation that the Respondent cannot refund the decretal sum is unsupported, and that the application is an attempt to deny the successful litigant the fruits of judgment. In the alternative, the Respondent proposes that three quarters of the decretal sum be released to her and the balance be deposited in court pending appeal.
D. ISSUES FOR DETERMINATION
8. Having considered the motion, the affidavits on record and the material presented, the issues for determination are:
a. whether the Applicant has shown good and sufficient cause to warrant leave to appeal out of time;
b. whether the Applicant has satisfied the conditions for grant of stay of execution pending appeal; and
c. what orders should issue as to costs.
E. ANALYSIS AND DETERMINATION
(i) Whether leave to appeal out of time should be granted
9. The governing provision is section 79G of the Civil Procedure Act, which requires an appeal from a subordinate court to the High Court to be filed within thirty days from the date of the decree or order appealed against, but gives the Court power to admit an appeal out of time if the appellant satisfies the Court that there was good and sufficient cause for not filing the appeal in time.
10. The principles applicable in considering extension of time are well settled. The Court exercises a judicial discretion, guided principally by the length of delay, the reason for the delay, the possible merits of the intended appeal, and the degree of prejudice to the respondent. Those factors were restated by the Court of Appeal in Thuita Mwangi v Kenya Airways Ltd [2003] KECA 201 (KLR) drawing from Leo Sila Mutiso v Rose Hellen Wangari Mwangi.
11. In the present matter, judgment was delivered on 16th April 2025. Time for lodging an appeal lapsed on or about 16th May 2025. The present application was filed on 23rd June 2025. The delay after lapse of the statutory period is therefore slightly over one month. In the circumstances of this case, that delay is not so inordinate as to be beyond redemption. The court file shows that the decree was issued on 7th May 2025, and the Applicant has consistently maintained that a copy of the judgment was not availed in time. Although no formal letter bespeaking proceedings or judgment was annexed, and the explanation is therefore not wholly satisfactory, I am nonetheless not persuaded that the delay was so contumelious or so prolonged as to shut the Applicant out from the seat of justice altogether.
12. On whether the intended appeal is arguable , the draft memorandum raises complaints that the trial court erred in apportioning liability at 70:30, failed to consider the contribution of the intended third party, and failed to properly evaluate the Applicant’s case on both liability and quantum. At this stage, the Court is not required to determine the merits of those grounds. It suffices that the intended appeal is not frivolous. Based on the material placed before me, I am satisfied that the intended appeal is arguable.
13. As regards prejudice, the Respondent is entitled to enjoy the fruits of her judgment, and that factor must always weigh heavily with the Court. However, that right must be balanced against the equally important right of appeal. In the present case, the prejudice to the Respondent can be alleviated by an appropriate order on security and expeditious timelines.
14. I therefore find that, on balance, the Applicant has shown sufficient cause to warrant leave to appeal out of time.
(ii) Whether stay of execution pending appeal should issue
15. The principles governing stay pending appeal are set out in Order 42 rule 6(2) of the Civil Procedure Rules. An applicant must show:
a. that substantial loss may result unless the order is made;
b. that the application was made without unreasonable delay; and
c. that such security as the court orders for the due performance of the decree has been given.
16. In Halai & Another v Thornton & Turpin (1963) Ltd [1990] KECA 65 (KLR), the Court of Appeal affirmed that those conditions are mandatory for the High Court when considering stay under Order 42 rule 6.
17. On substantial loss, the Applicant states that if the decretal sum is paid out, recovery may be difficult because the Respondent’s financial means are unknown. The Respondent, on the other hand, merely states that the allegation is speculative. The Court of Appeal in National Industrial Credit Bank Ltd v Aquinas Francis Wasike & Another [2006] KECA 333 (KLR) stated that once an applicant expresses a reasonable fear that a respondent may be unable to refund the decretal sum, the evidential burden shifts to the respondent to show what assets or means he or she has.
18. In this case, the Respondent did not place before the Court any material demonstrating her ability to refund the decretal sum if the appeal succeeds. That omission lends some force to the Applicant’s apprehension. I am therefore satisfied that the Applicant has demonstrated the likelihood of substantial loss if execution proceeds and the decretal sum is paid out in full before the appeal is heard.
19. On delay, I have already found that although the delay is not perfectly explained, it is not inordinate in the circumstances.
20. On security, the Applicant has expressly offered to deposit the entire decretal sum of Kshs. 1,806,000/= in a joint interest earning account. That, in my view, is sufficient and reasonable security. The Respondent urged the Court to release part of the decretal sum to her immediately. While that is an available approach in appropriate cases, I am not persuaded that it is the fairest order here, particularly because the intended appeal challenges both liability and quantum and the Applicant has offered full security.
21. The Court’s discretion on stay is intended to preserve the subject matter so that an appeal, if successful, is not rendered nugatory, while at the same time ensuring that a successful litigant is not kept out of the fruits of judgment without adequate cause. That principle is reflected in Butt v Rent Restriction Tribunal [1979] KECA 22 (KLR).
22. In the totality of the matter, I am satisfied that this is a proper case for grant of stay pending appeal, on strict conditions as to time and security.
F. DISPOSITION
23. The Notice of Motion dated 13th June 2025 is allowed on the following terms:
a. Leave is hereby granted to the Applicant to file an appeal out of time against the judgment delivered on 16th April 2025 in Oyugis PMCC No. 174 of 2022.
b. The Memorandum of Appeal shall be filed and served within fourteen (14) days from the date hereof.
c. There shall be a stay of execution of the judgment and decree in Oyugis PMCC No. 174 of 2022 pending the hearing and determination of the intended appeal.
d. The stay granted in (c) above is condition that the applicant deposits the entire decretal the sum of Kshs. 1,806,000/= in a joint interest earning account to be opened in the names of counsel for the Applicant and counsel for the 1st Respondent within thirty (30) days from the date of this ruling.
e. In default of compliance with order (d) above within the stipulated period, the stay herein shall automatically lapse without further order of the Court.
f. Costs of the application to the respondent. .
24. It is so ordered.
T.A ODERA
JUDGE
25.3.26
DELIVERED, VIRTUALLY VIA TEAMS PLATFORM ON THIS 25TH DAY OF MARCH 2026, IN THE PRESENCE OF CA – MR ONKUNDI