REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MAKUENI
CIVIL MISC.APPL. CASE NO.E059 OF 2025
EZEKIEL MAMBO MWONGA………………………………… PLAINTIFF
VERSUS
ANTONY NDUVA WOLILE………………………………… DEFENDANT
RULING
1. The application before me is brought under Order 21 Rule 1B, Order 22 Rule 22, Order 40 Rule 6, Order 51 Rule 1 of the Civil Procedure Rules, Section 1A, 1B and 3A of the Civil Procedure applications, Article 159(2) (a) and (d) of the Constitution of Kenya.
2. The applicant seeks inter alia , extension of time and leave to lodge their Memorandum of Appeal out of time against the judgment and/or Decree entered against them by the Hon. S. Jalang’0 (SPM) in MCCC No.E104 of 2023 Tawa Law Courts delivered on 1 st August, 2024; together with a stay of execution of the same judgment pending the hearing and determination of the intended appeal.
3. The grounds for the application are set on its face, and in the affidavit of Ezekiel Mambo Mwonga sworn on 11 th August, 2025.
4. He depones that that the intended appeal is on quantum of damages which was awarded in the judgment entered against the defendant/applicant for the sum of Ksh.1,200,000/=, Special Damages of Ksh.11,440/=, and future medical expenses of Ksh.100,000/=.
5. The application is opposed by the affidavit of Antony Wolile, the plaintiff/respondent sworn on 22 nd August, 2025. He depones that judgment was delivered on 1 st August, 2024 and the applicant has come to court a whole year after the judgment.
6. That the delay has not been explained. That the applicant has not disclosed that there was a declaratory suit where judgment was entered against the applicant’s injuries on 1 st July, 2025 in Tawa SRMCC No.E139 of 2025 . That there is even a garnishee application which was coming up for Ruling on 2 nd September, 2025.
7. The respondent filed written submissions dated 11 th November, 2025 and relied on HCCC MISC.E128 OF 2024 Vincent Mutuku Mwikya –vs- Shadrack Mutuku Nyumu and ABSA Bank Limited PLC (Formerly Barclays Bank Ltd –vs- Waithanji [2025] KECA 1627 (KLR) where the courts refused to allow the application.
8. I have carefully considered the application, the law, the submissions.
9. The issue for determination is whether the application is merited.
10. On the issue of leave/extension of time to file the appeal out of time , the applicant had the duty/burden to give an explanation for the delay. Reading through the supporting affidavit of the applicant no reason is given for the delay.
11. There is nothing on record to show that there was any effort on the part of the applicant to even start off the appeal – but more seriously, the applicant has not demonstrated any plausible reason for the delay. The applicant has also not challenged the averments about the declaratory suit, and it consequences.
12. In the circumstances, I find that there being no explanation for the delay, the application for extension of time is declined.
13. Consequently – there is no reason to consider the prayer for an order for stay of execution.
14. The application is dismissed with costs to the respondent.
RULING Dated, signed and delivered virtually on 22 nd May 2026
Mumbua T Matheka
Judge .
- Ms. Opaka for the applicant
- Ms. Omari Hb for Mr. Mulyungi for the Respondent for the defendant
- Chrispol Court Assistant
IN THE HIGH COURT OF KENYA AT MAKUENI
CIVIL MISC.APPL. CASE NO.E059 OF 2025
EZEKIEL MAMBO MWONGA………………………………… PLAINTIFF
VERSUS
ANTONY NDUVA WOLILE………………………………… DEFENDANT
RULING
1. The application before me is brought under Order 21 Rule 1B, Order 22 Rule 22, Order 40 Rule 6, Order 51 Rule 1 of the Civil Procedure Rules, Section 1A, 1B and 3A of the Civil Procedure applications, Article 159(2) (a) and (d) of the Constitution of Kenya.
2. The applicant seeks inter alia , extension of time and leave to lodge their Memorandum of Appeal out of time against the judgment and/or Decree entered against them by the Hon. S. Jalang’0 (SPM) in MCCC No.E104 of 2023 Tawa Law Courts delivered on 1 st August, 2024; together with a stay of execution of the same judgment pending the hearing and determination of the intended appeal.
3. The grounds for the application are set on its face, and in the affidavit of Ezekiel Mambo Mwonga sworn on 11 th August, 2025.
4. He depones that that the intended appeal is on quantum of damages which was awarded in the judgment entered against the defendant/applicant for the sum of Ksh.1,200,000/=, Special Damages of Ksh.11,440/=, and future medical expenses of Ksh.100,000/=.
5. The application is opposed by the affidavit of Antony Wolile, the plaintiff/respondent sworn on 22 nd August, 2025. He depones that judgment was delivered on 1 st August, 2024 and the applicant has come to court a whole year after the judgment.
6. That the delay has not been explained. That the applicant has not disclosed that there was a declaratory suit where judgment was entered against the applicant’s injuries on 1 st July, 2025 in Tawa SRMCC No.E139 of 2025 . That there is even a garnishee application which was coming up for Ruling on 2 nd September, 2025.
7. The respondent filed written submissions dated 11 th November, 2025 and relied on HCCC MISC.E128 OF 2024 Vincent Mutuku Mwikya –vs- Shadrack Mutuku Nyumu and ABSA Bank Limited PLC (Formerly Barclays Bank Ltd –vs- Waithanji [2025] KECA 1627 (KLR) where the courts refused to allow the application.
8. I have carefully considered the application, the law, the submissions.
9. The issue for determination is whether the application is merited.
10. On the issue of leave/extension of time to file the appeal out of time , the applicant had the duty/burden to give an explanation for the delay. Reading through the supporting affidavit of the applicant no reason is given for the delay.
11. There is nothing on record to show that there was any effort on the part of the applicant to even start off the appeal – but more seriously, the applicant has not demonstrated any plausible reason for the delay. The applicant has also not challenged the averments about the declaratory suit, and it consequences.
12. In the circumstances, I find that there being no explanation for the delay, the application for extension of time is declined.
13. Consequently – there is no reason to consider the prayer for an order for stay of execution.
14. The application is dismissed with costs to the respondent.
RULING Dated, signed and delivered virtually on 22 nd May 2026
Mumbua T Matheka
Judge .
- Ms. Opaka for the applicant
- Ms. Omari Hb for Mr. Mulyungi for the Respondent for the defendant
- Chrispol Court Assistant