' 1. By way of Notice of Motion dated 27th January 2025, the Applicant seeks the following orders;
1) Spent
2) That the Applicant be granted orders of stay of execution pending appeal from ELDORET SMALL CLAIMS COMM CASE NO. EI157 OF 2023 where ruling on the Respondent’s preliminary objection dated 5th April, 2024 was delivered on 07/06/2024.
3) That the Applicant be granted leave to appeal out of time to this Court from the Small Claims Court.
4) Spent
5) Costs of this application be provided for in any event,
2. The Application is expressed to be brought under Order 50 Rule 1, Order 22 Rule 21 Order 42 Rule 6 Civil Procedure Rules Section 79G, 95 Civil Procedure Act and Section 15(1) Cap 301 of the Laws of Kenya
3. The Application is premised on the grounds on the face of it and the averments in the supporting affidavit. In her affidavit, she deponed that she filed a preliminary objection on jurisdiction to the Small Claims Court which was heard under Cause No. ELDORET SMALL CLAIMS COMM CASE NO. E1157 OF 2023, a copy of which she annexed and marked FC1. At the close of the submissions the Small Claims Court reserved the ruling which parties would be notified. She stated that she was never served with the ruling notice and became aware that a ruling had been delivered on 11/11/2024. She urged that she is aggrieved by the ruling of the Court and desires to appeal the same. Further, that the time reserved for Appeal is 30 days from the date of delivery of judgement, which lapsed on 7th July, 2024. She deponed that she has an arguable appeal and urged the court to allow the Application.
Replying Affidavit
4. In response to the Application, the Respondent filed a Replying Affidavit wherein he deponed that the Applicant does not wish for litigation in the matter herein to come to an end after the Small Claims Court clearly pronounced itself in a well-reasoned judgment. Further, that Small Claims Court matters should be concluded within 60 days yet this matter has been dragging in court for over one year. It was his averment that the Application is incompetent, frivolous and an abuse of the due process of this Court. Further, he opposed the Applicants’ allegation that she was not notified of the determination regarding the Preliminary Objection dated 5th April 2024. He deponed that the same is unfounded since it is the duty of her counsel to check online on the progress of her case. He urged the court to dismiss the Application with costs.
Applicants’ Submissions
5. Learned Counsel for the Applicant urged that the delay in filing the Appeal was occasioned by the fact that at the close of the submissions, the Small Claims Court reserved the ruling date for one which parties would be notified. Further, that the Applicant was never served with the ruling notice and only became aware that ruling had been delivered on 11/11/2024 some 180 days after the event. Counsel submitted that there is a memorandum of appeal already on record which raises very serious trial issues and cited the case of Sebei District Administration v Gasyali & others (1968) EA 300, urging the court to allow the application.
Respondents’ submissions
6. Learned counsel for the Respondent submitted that the principles governing stay of execution are provided under Order 4 Rule 6 of the Civil Procedure Rules. On substantial loss, Counsel submitted that the Applicant must show that she stands to suffer substantial loss of the orders sought are not issued, placing reliance on the case of James Wangalwa & Another v Agnes Naliaka Cheseto (2013) eKLR. He urged that the Applicant has failed to demonstrate that she would suffer substantial loss if the orders sought are not granted.
7. On undue delay, counsel urged that the Applicant has not shown what steps she took to find out what the status of her case was from her advocate. Further, that no good reasons have been given to establish if there were any developments between when the ruling was delivered on 07/06/2024 and 19/09/2024 when she allegedly found out, a period of 100 days. Counsel placed reliance on the cases of M’Ndaku Mbiuki versus Tames Mbaaba Mugwira (2010) eKLR; Jaber Mohsen Ali & Another versus Priscillah Boit & Another E&L 200 of 2012 (2014) eKLR and Nyinyaga Kavole versus Mailu Gideon (Misc. Application No. 401 of 2018) in this regard.
8. On security, Counsel submitted that the Applicant has not demonstrated any willingness to furnish security for the due performance of the decree, which is an inescapable requirement when seeking stay of execution. Counsel placed reliance on the case of Gianfranco Manethi & Another versus Africa Merchant Assurance Company Ltd (2019) eKLR.
9. Counsel urged that stay of execution is an equitable remedy and therefore, any Applicant must; approach the Court with clean hands; must have done equity; and must not be guilty of laches. He stated that the Applicant has not done equity as she is yet to repay the principal sum of Kshs, 160, 000/=. Secondly, she has approached the Court with unclean hands as she failed to disclose the fact that she was indebted to the Applicant in the first place. Finally, that the Applicant has demonstrated indolence, lethargy, and outright laziness. It is the Respondents case that the application is fatally defective and should be dismissed with costs.
Analysis & Determination
10. Having addressed my mind to the issues raised in the pleadings as well as the submissions, it is my considered opinion that the following issues arise for determination
1) Whether the Applicant should be granted orders for stay of execution pending appeal
2) Whether the Applicant should be granted leave to appeal out of time
11. On whether the Applicant should be granted stay of execution pending appeal, the principles guiding the grant of a stay of execution pending appeal are well settled. These principles are provided for under Order 42 rule 6(2) of the Civil Procedure Rules which provides:
“No order for stay of execution shall be made under sub rule (1) unless—
(a) the court is satisfied that substantial loss may result to the Applicant unless the order is made and that the application has been made without unreasonable delay; and
(b) such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the Applicant.
12. In considering the issues herein raised, the court notes that not only did the Trial Court issue a Ruling on the Preliminary Objection now the subject matter of the intended appeal and this Application, but the court subsequently also proceeded to hear the claim after dismissing the Preliminary Objection and rendered its judgement. From the annexures to the Applicant’s Application, the Ruling annexed as FC3 was delivered on 7th June 2024.
13. The judgement subsequent annexed as FC4 was delivered on 20th November 2024. This Application was filed on 27th January 2025. Even assuming that the deposition by the Applicant that she was not aware that the Ruling on the Preliminary Objection had been delivered is correct, it is noteworthy nowhere in her Supporting Affidavit does the Applicant state that she was equally not aware of the delivery of the judgement.
14. It is for the above reasons that out of the entire provisions of Order 42 Rue 6(2) herein above referenced, I will delve solely on the issue of whether the delay in moving the court by the applicant is inordinate and unreasonable because primary to the court determining whether the order of stay and the other subsequent orders herein ought to be granted, the immediate issue that the court should determine is this issue because it is my very well considered opinion that all the other issues raised either stand or fall by the court’s determination on the same.
15. Section 34 of the Small Claims Court provides for the expeditious disposal of cases filed before the said court. The said provision provides for the manner in which the court is mandated to handle all case that are filed before it. It is a mandatory provision and it is as hereunder;
(1) All proceedings before the Court on any particular day so far as is practicable shall be heard and determined on the same day or on a day to day basis until final determination of the matter which shall be within sixty days from the date of filing the claim.
16. The above being the case, it also follows then that appeals emanating from this court, which should be on points of law only must also be disposed of expeditiously. The Appellant/Applicant herein seeks for leave to appeal out of time and that in the interim, a stay of execution of the decree of the court does issue for the reasons given.
17. The orders sought are based inter alia on the grounds that the court having considered the Preliminary Objection reserved its Ruling to be delivered on Notice which notice was never served upon the Applicant and so she was not aware that it had been delivered until some 180 days after the event. She does not state how she came to be aware of the same or even the judgement a copy of which she has annexed.
18. The Applicant further states that the land lease consideration has unreasonably doubled from the original amount owed by the Applicant to the Respondent in total disregard of the evidence on record…. It is worth noting that the Applicant does admits that he has a debt owing to the Respondent. This in my view would explain why the Applicant Application is premised on the the Ruling on the Preliminary Objection and not on the substantive determination of the case.
19. What amounts to inordinate delay was considered in the case of Nairobi HCC No. 32 of 2010, Utalii Transport Company Limited & 3 Others v NIC Bank Limited & another [2014] eKLR and the Court in determining what amounted to inordinate delay had this to say;
“Whereas there is no precise measure of what amounts to inordinate delay. And whereas what amounts to inordinate delay will differ from case to case depending on the circumstances of each case; the subject matter of the case; the nature of the case; the explanation given for the delay; and so on and so forth. Nevertheless, inordinate delay should not be difficult to ascertain once it occurs; the litmus test being that it should be an amount of delay which leads the court to an inescapable conclusion that it is inordinate and therefore, inexcusable”
20. The above said, in considering that the primary mandate of the Small Claims Court is the expeditious disposal of cases, and taking into account all the procedural safeguards that have been built into the relevant statute to ensure that this mandate is realized at all times in the hearing and determination of matters before these courts within a maximum period of six months, I am of the very well-considered opinion that an application to appeal a decision of this court brought almost seven months after a determination has been made, a period that is in fact even greater than the period within which these courts are mandated to hear and determine the cases therein filed amounts to a delay that is in all aspects and respects inordinate.
21. It is also worthy of note that the Applicant only moved the court upon realization of the fact that the lease consideration had doubled and further there is an admission that that the debt is admitted as owed. For these reasons, I find that the Application seeking for stay of execution and leave to file the Appeal out of time that the Applicant seeks lacks merit. The Application is therefore dismissed in its entirety with costs to the Respondent and the interim orders herein issued are now hereby vacated.
Read dated and Signed at ITEN on 2nd October 2025
'
1) Spent
2) That the Applicant be granted orders of stay of execution pending appeal from ELDORET SMALL CLAIMS COMM CASE NO. EI157 OF 2023 where ruling on the Respondent’s preliminary objection dated 5th April, 2024 was delivered on 07/06/2024.
3) That the Applicant be granted leave to appeal out of time to this Court from the Small Claims Court.
4) Spent
5) Costs of this application be provided for in any event,
2. The Application is expressed to be brought under Order 50 Rule 1, Order 22 Rule 21 Order 42 Rule 6 Civil Procedure Rules Section 79G, 95 Civil Procedure Act and Section 15(1) Cap 301 of the Laws of Kenya
3. The Application is premised on the grounds on the face of it and the averments in the supporting affidavit. In her affidavit, she deponed that she filed a preliminary objection on jurisdiction to the Small Claims Court which was heard under Cause No. ELDORET SMALL CLAIMS COMM CASE NO. E1157 OF 2023, a copy of which she annexed and marked FC1. At the close of the submissions the Small Claims Court reserved the ruling which parties would be notified. She stated that she was never served with the ruling notice and became aware that a ruling had been delivered on 11/11/2024. She urged that she is aggrieved by the ruling of the Court and desires to appeal the same. Further, that the time reserved for Appeal is 30 days from the date of delivery of judgement, which lapsed on 7th July, 2024. She deponed that she has an arguable appeal and urged the court to allow the Application.
Replying Affidavit
4. In response to the Application, the Respondent filed a Replying Affidavit wherein he deponed that the Applicant does not wish for litigation in the matter herein to come to an end after the Small Claims Court clearly pronounced itself in a well-reasoned judgment. Further, that Small Claims Court matters should be concluded within 60 days yet this matter has been dragging in court for over one year. It was his averment that the Application is incompetent, frivolous and an abuse of the due process of this Court. Further, he opposed the Applicants’ allegation that she was not notified of the determination regarding the Preliminary Objection dated 5th April 2024. He deponed that the same is unfounded since it is the duty of her counsel to check online on the progress of her case. He urged the court to dismiss the Application with costs.
Applicants’ Submissions
5. Learned Counsel for the Applicant urged that the delay in filing the Appeal was occasioned by the fact that at the close of the submissions, the Small Claims Court reserved the ruling date for one which parties would be notified. Further, that the Applicant was never served with the ruling notice and only became aware that ruling had been delivered on 11/11/2024 some 180 days after the event. Counsel submitted that there is a memorandum of appeal already on record which raises very serious trial issues and cited the case of Sebei District Administration v Gasyali & others (1968) EA 300, urging the court to allow the application.
Respondents’ submissions
6. Learned counsel for the Respondent submitted that the principles governing stay of execution are provided under Order 4 Rule 6 of the Civil Procedure Rules. On substantial loss, Counsel submitted that the Applicant must show that she stands to suffer substantial loss of the orders sought are not issued, placing reliance on the case of James Wangalwa & Another v Agnes Naliaka Cheseto (2013) eKLR. He urged that the Applicant has failed to demonstrate that she would suffer substantial loss if the orders sought are not granted.
7. On undue delay, counsel urged that the Applicant has not shown what steps she took to find out what the status of her case was from her advocate. Further, that no good reasons have been given to establish if there were any developments between when the ruling was delivered on 07/06/2024 and 19/09/2024 when she allegedly found out, a period of 100 days. Counsel placed reliance on the cases of M’Ndaku Mbiuki versus Tames Mbaaba Mugwira (2010) eKLR; Jaber Mohsen Ali & Another versus Priscillah Boit & Another E&L 200 of 2012 (2014) eKLR and Nyinyaga Kavole versus Mailu Gideon (Misc. Application No. 401 of 2018) in this regard.
8. On security, Counsel submitted that the Applicant has not demonstrated any willingness to furnish security for the due performance of the decree, which is an inescapable requirement when seeking stay of execution. Counsel placed reliance on the case of Gianfranco Manethi & Another versus Africa Merchant Assurance Company Ltd (2019) eKLR.
9. Counsel urged that stay of execution is an equitable remedy and therefore, any Applicant must; approach the Court with clean hands; must have done equity; and must not be guilty of laches. He stated that the Applicant has not done equity as she is yet to repay the principal sum of Kshs, 160, 000/=. Secondly, she has approached the Court with unclean hands as she failed to disclose the fact that she was indebted to the Applicant in the first place. Finally, that the Applicant has demonstrated indolence, lethargy, and outright laziness. It is the Respondents case that the application is fatally defective and should be dismissed with costs.
Analysis & Determination
10. Having addressed my mind to the issues raised in the pleadings as well as the submissions, it is my considered opinion that the following issues arise for determination
1) Whether the Applicant should be granted orders for stay of execution pending appeal
2) Whether the Applicant should be granted leave to appeal out of time
11. On whether the Applicant should be granted stay of execution pending appeal, the principles guiding the grant of a stay of execution pending appeal are well settled. These principles are provided for under Order 42 rule 6(2) of the Civil Procedure Rules which provides:
“No order for stay of execution shall be made under sub rule (1) unless—
(a) the court is satisfied that substantial loss may result to the Applicant unless the order is made and that the application has been made without unreasonable delay; and
(b) such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the Applicant.
12. In considering the issues herein raised, the court notes that not only did the Trial Court issue a Ruling on the Preliminary Objection now the subject matter of the intended appeal and this Application, but the court subsequently also proceeded to hear the claim after dismissing the Preliminary Objection and rendered its judgement. From the annexures to the Applicant’s Application, the Ruling annexed as FC3 was delivered on 7th June 2024.
13. The judgement subsequent annexed as FC4 was delivered on 20th November 2024. This Application was filed on 27th January 2025. Even assuming that the deposition by the Applicant that she was not aware that the Ruling on the Preliminary Objection had been delivered is correct, it is noteworthy nowhere in her Supporting Affidavit does the Applicant state that she was equally not aware of the delivery of the judgement.
14. It is for the above reasons that out of the entire provisions of Order 42 Rue 6(2) herein above referenced, I will delve solely on the issue of whether the delay in moving the court by the applicant is inordinate and unreasonable because primary to the court determining whether the order of stay and the other subsequent orders herein ought to be granted, the immediate issue that the court should determine is this issue because it is my very well considered opinion that all the other issues raised either stand or fall by the court’s determination on the same.
15. Section 34 of the Small Claims Court provides for the expeditious disposal of cases filed before the said court. The said provision provides for the manner in which the court is mandated to handle all case that are filed before it. It is a mandatory provision and it is as hereunder;
(1) All proceedings before the Court on any particular day so far as is practicable shall be heard and determined on the same day or on a day to day basis until final determination of the matter which shall be within sixty days from the date of filing the claim.
16. The above being the case, it also follows then that appeals emanating from this court, which should be on points of law only must also be disposed of expeditiously. The Appellant/Applicant herein seeks for leave to appeal out of time and that in the interim, a stay of execution of the decree of the court does issue for the reasons given.
17. The orders sought are based inter alia on the grounds that the court having considered the Preliminary Objection reserved its Ruling to be delivered on Notice which notice was never served upon the Applicant and so she was not aware that it had been delivered until some 180 days after the event. She does not state how she came to be aware of the same or even the judgement a copy of which she has annexed.
18. The Applicant further states that the land lease consideration has unreasonably doubled from the original amount owed by the Applicant to the Respondent in total disregard of the evidence on record…. It is worth noting that the Applicant does admits that he has a debt owing to the Respondent. This in my view would explain why the Applicant Application is premised on the the Ruling on the Preliminary Objection and not on the substantive determination of the case.
19. What amounts to inordinate delay was considered in the case of Nairobi HCC No. 32 of 2010, Utalii Transport Company Limited & 3 Others v NIC Bank Limited & another [2014] eKLR and the Court in determining what amounted to inordinate delay had this to say;
“Whereas there is no precise measure of what amounts to inordinate delay. And whereas what amounts to inordinate delay will differ from case to case depending on the circumstances of each case; the subject matter of the case; the nature of the case; the explanation given for the delay; and so on and so forth. Nevertheless, inordinate delay should not be difficult to ascertain once it occurs; the litmus test being that it should be an amount of delay which leads the court to an inescapable conclusion that it is inordinate and therefore, inexcusable”
20. The above said, in considering that the primary mandate of the Small Claims Court is the expeditious disposal of cases, and taking into account all the procedural safeguards that have been built into the relevant statute to ensure that this mandate is realized at all times in the hearing and determination of matters before these courts within a maximum period of six months, I am of the very well-considered opinion that an application to appeal a decision of this court brought almost seven months after a determination has been made, a period that is in fact even greater than the period within which these courts are mandated to hear and determine the cases therein filed amounts to a delay that is in all aspects and respects inordinate.
21. It is also worthy of note that the Applicant only moved the court upon realization of the fact that the lease consideration had doubled and further there is an admission that that the debt is admitted as owed. For these reasons, I find that the Application seeking for stay of execution and leave to file the Appeal out of time that the Applicant seeks lacks merit. The Application is therefore dismissed in its entirety with costs to the Respondent and the interim orders herein issued are now hereby vacated.
Read dated and Signed at ITEN on 2nd October 2025
'