1. The Applicant moved this Court by a Notice of Motion dated 19 January 2024, later amended on 15 February 2024, seeking principally: (i) leave to appeal out of time against the judgment of 3 July 2023 in CMCC No. 9449 of 2019; (ii) stay of proceedings in the said suit; and (iii) that the Memorandum of Appeal filed with the application be deemed duly filed.
2. The Respondent opposed the Motion vide the Replying Affidavit dated 5 March 2024, sworn by Mr. Bullent Bulbahar, a director of the Respondent. The Respondent also raised a Preliminary Objection (PO) dated 11 March 2024 impugning the competence of the supporting affidavit and exhibits. It further filed Grounds of Objection dated 01 March 2024, opposing the application on grounds largely similar to those in the Preliminary Objection and the Replying Affidavit.
3. The gist of the Respondent’s response is that the Motion is fatally defective, the delay is inordinate and unexplained, the default judgment remains unchallenged, and the intended appeal is hopeless.
4. Following the filing of the responses by the Respondent, the Applicant filed Grounds of Opposition dated 25 March 2024 and an affidavit of even date, opposing the Respondents Preliminary Objection (PO) urging that the PO be dismissed for failing the Mukisa Biscuit threshold; that the Section 79G test is met; that the intended appeal is arguable (jurisdiction, service, arbitrator immunity, multiplicity); and that stay is warranted under Order 42 Rule 6.
5. Both the application and the Preliminary Objection were heard together. The Applicant filed its submissions dated 25 March 2024, in support of the application and also in opposition to the Respondent’s Preliminary Objection.
6. The Respondent filed two sets of submissions. One, dated 06 July 2025, in opposition to the Amended Notice of Motion dated 15 February 2024, and the other dated 04 July 2025 in support of its Preliminary Objection dated 11 March 2024.
Analysis and determination
7. Having duly considered the pleadings filed and the parties’ respective submissions, I find that the following issues arise for determination: -
i. Whether the Preliminary Objection dated 11 March 2024 is competent and merited.
ii. Whether the Applicant has met the threshold for granting leave to appeal out of time under Section 79G of the Civil Procedure Act.
iii. Whether to grant a stay of proceedings and on what terms.
Whether the Preliminary Objection dated 11 March 2024 is merited
8. The law on Preliminary Objection is settled. The principles to be met are set out in Mukisa Biscuits Manufacturing Co. Ltd v. West End Distributors [1969] EA 696, and as restated by the Supreme Court of Kenya in the case of Joho & another v Shahbal & 2 others [2014] KESC 34 (KLR), where the apex Court stated at Paragraph 31 thereof that:
“a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.....a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”
9. From the above, it is clear that a preliminary objection cannot be founded on contested facts. Where facts are disputed, or where evidence must be tendered to establish the point raised, the objection ceases to be preliminary. The principle was reiterated in Oraro v Mbaja [2005] KEHC 3182 (KLR), where the Court, in upholding the Mukisa Biscuit principle, stated that a preliminary objection cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.
10. In the present case, the Respondent’s Preliminary Objection dated 11 March 2024 challenges the competency of the Applicant’s supporting affidavit and the annexed exhibits EL 1 to EL 6. In particular, the Respondent alleges that EL 2 to EL 6 bear commissioning dates of 19 January 2024, whereas the supporting affidavit was commissioned later, 15 February 2024, making it a legal impossibility for a commissioner to seal exhibits a month before the affidavit existed. This, according to the Respondent, violated, among others, Rule 9 of the Oaths and Statutory Declarations Rules, which requires that exhibits must be sealed and marked at the time of commissioning the affidavit.
11. It was further the Respondent’s argument that annex EL -1 was not sealed at all and that Exhibits EL-1 to EL-6 are fabrications and forgeries because they were allegedly commissioned on 19th January 2024, whereas the supporting affidavit itself was commissioned on 15th February 2024.
12. Finally, the Respondent contended that the affidavit in support of the Amended Notice of Motion was incompetent and liable to be struck out for having been sworn by the Applicant’s Counsel (Ms. Eunice Lumallas) on contested matters contrary to Order 19 Rule 3(1). The Respondent referred this Court to the decision of 4 April 2025 (Hon. Prof. Dr. Sifuna, J), which had already remarked that such conduct is improper and such an affidavit is at risk of being struck out.
13. The Applicant, on its part, argued that the preliminary objection by the Respondent involves contested facts and therefore fails to meet the Mukisa Biscuit threshold. According to the Applicant, the question of whether the annexures were properly commissioned, whether the stamp imagery on the exhibits reflects the correct date, or whether the deponent had personal knowledge of the facts deponed to in the supporting affidavit, are factual questions, requiring inquiry beyond the record, including possibly cross-examination.
14. It was further the Applicant’s argument that the PO does not arise properly from the pleadings. The Applicant urged the Court to dismiss the objection and proceed to hear the application on merits in line with Article 159(2)(d) of the Constitution, which warns courts against placing undue regard to procedural technicalities.
15. I have duly weighed the parties’ respective submissions. I note that the Respondent alleges that the annexures are fabricated or forged; that the stamps and seals are not authentic; and that the commissioning process is a “legal impossibility.”
16. From the pleadings and submissions, it is clear that the Respondent’s objection requires the Court to investigate whether annexures were properly commissioned, whether stamps on the exhibits were genuine, and whether counsel swore on contested facts. These, in the view of the Court, are factual matters requiring inquiry and possibly cross-examination, which cannot be determined summarily.
17. The Court notes that the discrepancy between when exhibits EL2 to EL6 were stamped (19 January 2024) and when the supporting affidavit was commissioned (15 February 2024) most likely arose when the initial Notice of Motion dated 19 January 2024 was amended on 15th February 2014.
18. In law, an amendment does not create a new or distinct proceeding. It merely perfects, clarifies, or corrects the existing application. Once leave to amend is granted, the amended motion relates back to the date of the original filing, and the application continues as one uninterrupted process.
19. It therefore follows that the affidavit of 19 January 2024 and its annextures remained part of the court record, and may properly be relied upon in support of the amended Motion, to the extent that they are relevant and not inconsistent with the amended prayers, especially in a case like this, where there is no is no evidence that the affidavit had been withdrawn.
20. Additionally, the Court notes that Annexure EL 1, which the Respondent contends was not commissioned, is an order issued by this Court on 24 January 2024, and this Court, being the author, has custody of the original, which naturally forms part of the record of these proceedings, even if none was to be produced/exhibited by the Applicant.
21. The Court is cognisant that Article 159(2)(d) of the Constitution obliges courts to administer justice without undue regard to procedural technicalities. Even assuming the allegations on the defects in the affidavits were to be upheld, the Court, in the circumstances of this case, would still have been guided by that provision of the Constitution.
22. To strike out the application on the basis of a commissioning date error, thereby insulating a potentially jurisdictional nullity from appellate review, would, in my view, be a disproportionate remedy.
23. In the premises, the Court finds that the interests of justice favor hearing the application on its merits.
Whether the Applicant has met the threshold for granting leave to appeal out of time under Section 79G of the Civil Procedure Act
24. Section 79G, Civil Procedure Act, empowers the Court to admit an appeal out of time where the appellant satisfies the Court that there is good and sufficient cause for not filing the appeal in time. The provision states in part 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… 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.”
25. The Supreme Court’s guidance in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others (2014) eKLR remains the touchstone in this area. The guiding principles are that extension of time is discretionary, equitable, and available only to deserving parties; delay must be explained satisfactorily; prejudice to the respondent must be considered.
26. The Court made it clear that extension of time is discretionary, not a right; it is equitably granted; the delay must be explained to the Court’s satisfaction; the Court considers prejudice, promptitude once the applicant became aware, and overall justice.
27. In Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999] 2 EA 156, it was stated that the Court must consider the length of the delay, the reason for the delay, the degree of prejudice to the Respondent if leave is granted, and the importance of the issues raised in the intended appeal.
28. In the present case, it is the Applicant’s position that it filed the application promptly and that any delay in filing the appeal (if any) was neither deliberate nor inordinate and therefore excusable. It was further contended that the Applicant being a foreign national resident outside the jurisdiction (Paris), was unaware of the existence and progression of the lower court proceedings until execution steps were taken. That upon becoming aware of the judgment, the Applicant moved this Court with promptitude. The explanation offered is reasonable and sufficient in the circumstances.
29. The Court notes that the judgment sought to be appealed against was delivered on 3 July 2023. The Applicant thereafter first approached the Court on 19 January 2024, a delay of approximately 6½ months. The Applicant says he is a foreign resident, disputes valid service out of jurisdiction, and emphasizes the transnational arbitration context (Helsinki seat, ICC rules, tribunal action), which, according to him, complicated instructions taking, document collation, and strategic assessment.
30. While foreign residence of the Applicant is not in itself a complete excuse, the Court, in the totality of circumstances, accepts that explanation for the limited purpose of Section 79G of the Civil Procedure Act, particularly in the face of the allegation by the Applicant that no of leave of the Court to effect summons out of jurisdiction was obtained prior to the alleged service, an allegation which the Respondent has not materially disputed.
31. On the arguability of the intended appeal, the Applicant contends that the intended appeal is arguable since it raises the question of jurisdiction, that is, whether the magistrate’s court had territorial and subject-matter jurisdiction over a foreign arbitrator, contrary to the arbitration agreement seated in Helsinki under the ICC Rules. There are also issues of alleged forum Shopping (whether the Respondent abused process by filing parallel suits in France, Helsinki, and Kenya).
32. Jurisdictional questions are never frivolous; they go to the root of the matter. In Owners of Motor Vessel “Lilian S” v Caltex Oil (Kenya) Ltd [1989] eKLR: Nyarangi JA stated:
“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”
33. Further, it is settled law that an arguable appeal is not one that must succeed, but one that raises bona fide issues deserving judicial consideration. The Court of Appeal in Kenafric Matches Ltd v Match Masters Limited & another [2021] KECA 188 (KLR), stated that:
“On the first principle, as to whether the appeal is arguable, we have to consider whether there is a single bona fide arguable ground that has been raised by the applicant in order to warrant ventilation before this Court. In Stanley Kang’ethe Kinyanjui v Tony Ketter & 5 Others [2013] eKLR , this Court described an arguable appeal in the following terms: “vii). An arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the court; one which is not frivolous. viii). In considering an application brought under Rule 5 (2) (b) the court must not make definitive or final findings of either fact or law at that stage as doing so may embarrass the ultimate hearing of the main appeal.”
34. From the draft Memorandum of Appeal, the Court notes that the Applicant raises, inter alia:
i. whether the lower court had jurisdiction in light of the arbitration agreement and seat of arbitration;
ii. whether service outside jurisdiction was lawfully effected; and
iii. whether the proceedings and judgment offended the right to be heard.
35. The above issues are weighty questions of law, which cannot be described as frivolous. The Court is therefore satisfied that the intended appeal is arguable, and therefore ought to be ventilated on merits.
Whether to grant a stay of proceedings and on what terms
36. The Applicant moved this Court for an order of stay of proceedings in Civil Case No.9449 in the lower court. The application is based on Order 51 Rule 1, Order 8 Rule 7 of the Civil Procedure Rules; Sections 1A, 1B, 3A, 79G and 95 of the Civil Procedure Act, Articles 50 & 159 of the Constitution of Kenya 2010.
37. As a preliminary issue, it is critical to point out that the Court notes that the Applicant seeks an order of stay of proceedings and not stay of execution pending appeal. This distinction, however, does not constrain the Court’s jurisdiction to grant appropriate relief in the circumstances of this case.
38. The statutory framework under Order 42 Rule 6(1) of the Civil Procedure Rules expressly provides that an appeal does not operate as a stay of either execution or proceedings, except as ordered by the Court. The Rule places “execution” and “proceedings” side by side, thereby recognizing that a stay may operate on either or both dimensions depending on the circumstances.
39. Existing jurisprudence confirms that a stay of proceedings is, in fact, the wider and more intrusive of the two remedies. In Waweru v Bor & Another [2024] KEHC 6325, the Court considered an application expressly grounded on “stay of proceedings pending appeal” and acknowledged that, where necessary to preserve the substratum of the appeal, stay of proceedings may restrain all further steps in the suit, including steps that would otherwise culminate in execution.
40. It therefore follows that the Court finds unmeritorious the Respondent’s argument that a “stay of execution” cannot be granted in a case where an applicant has only prayed for “stay of proceedings.” As pointed out above, the term “proceedings” is much wider and extends to the execution proceedings in respect of a particular case.
41. In this case, the Applicant contended that unless a stay of proceedings is granted, the intended appeal will be rendered nugatory, as execution and consequential proceedings in the lower court will continue.
42. The Respondent, on the other hand, fears further delay and dissipation of the value of its judgment. The Respondent further argued that the judgment is monetary and that the Respondent is capable of refunding.
43. It is a well-settled principle of law that the discretion to grant a stay of execution/proceedings is a judicial one and is discretionary. In the case of William Odhiambo Ramogi & 2 others v the Honourable Attorney General & 3 others [2019] eKLR, a 5-judge Bench of the High Court laid down the principles our Courts have established for the grant of stay of proceedings pending the hearing and determination of an appeal. The principles to consider are: -
(a) If there is a pending appeal in the higher court.
(b) The Applicant should explain why a stay has not been sought in the higher court since the policy is to move to the said court, which is better placed to calibrate its orders.
(c) There must be a demonstration that the appeal raises substantial questions to be determined or is otherwise arguable.
(d) There must be a demonstration of the appeal being rendered nugatory.
(e) Exceptional circumstances must be demonstrated which make the stay of proceedings warranted as opposed to hearing the case concluded safely and all arising grievances taken up on a single appeal.
(f) The Applicant must demonstrate that the application was filed expeditiously and without delay.
44. In the present case, the Court having established in the preceding paragraphs that the application was, in the circumstances, made timeously and that the intended appeal is arguable, I find that the principles espoused under William Odhiambo Ramogi & 2 others (supra) have been met.
45. It must, however, be remembered that an application for stay pending appeal is an equitable remedy and is always granted at the discretion of the court. In Butt v Rent Restriction Tribunal [1982] KLR 417, the Court of Appeal held that the power to grant a stay is discretionary and must be exercised in such a way as not to prevent an appeal, if successful, from being rendered nugatory.
46. Similarly, in Lloyd Masika Limited v Stanbic Bank Limited [2024] KECA 72 reaffirmed that even where an appeal is arguable, stay pending appeal cannot issue in the absence of, among others, security for the due performance of such decree or order. The Court underscored that the power to grant stay is not intended to disadvantage a decree holder who has obtained a lawful judgment, and that security serves as an essential safeguard during the pendency of the appeal.
47. Order 42 Rule 6 (2) of the Civil Procedure Rules provides that:
“No order for stay of execution shall be made under subrule (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.”
48. Accordingly, in the circumstances of this suit, and taking into account that the Applicant is a foreign national, the Court is of the view that a conditional order of stay would be the more appropriate remedy.
Disposition
49. In the result, the Court finds that the Amended Notice of Motion dated 15 February 2024 is merited, while the Respondent’s Preliminary Objection dated 11 March 2024 is found to be without merit. Accordingly, the Court issues the following final orders:
i. The Preliminary Objection dated 11 March 2024 is dismissed.
ii. The Amended Notice of Motion dated 15 February 2024 is allowed.
iii. The Applicant is hereby granted leave to appeal out of time against the judgment delivered on 3 July 2023 in CMCC No. 9449 of 2019.
iv. The Memorandum of Appeal filed herein is deemed as properly filed and served.
v. There shall be a stay of proceedings (including execution) in CMCC No. 9449 of 2019 pending the hearing and determination of the appeal.
vi. The stay is conditional upon the Applicant depositing the sum of Kshs. 7,000,000/= in a joint interest-earning account in the names of the parties' advocates within thirty (30) days of this ruling.
vii. In default of compliance with the condition in (vi) above, the order of stay issued herein shall stand automatically vacated, and the Respondent shall be at liberty to proceed with execution
50. Costs of the Application shall abide by the outcome of the appeal.
51. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
05 FEBRUARY 2026
ADO MOSES
JUDGE
In the presence of: -
C/A – Moses
Nyakundi h/b for Lumallas……………..for the Applicant/Plaintiff
Bullent…………….for the Respondent/Defendant
2. The Respondent opposed the Motion vide the Replying Affidavit dated 5 March 2024, sworn by Mr. Bullent Bulbahar, a director of the Respondent. The Respondent also raised a Preliminary Objection (PO) dated 11 March 2024 impugning the competence of the supporting affidavit and exhibits. It further filed Grounds of Objection dated 01 March 2024, opposing the application on grounds largely similar to those in the Preliminary Objection and the Replying Affidavit.
3. The gist of the Respondent’s response is that the Motion is fatally defective, the delay is inordinate and unexplained, the default judgment remains unchallenged, and the intended appeal is hopeless.
4. Following the filing of the responses by the Respondent, the Applicant filed Grounds of Opposition dated 25 March 2024 and an affidavit of even date, opposing the Respondents Preliminary Objection (PO) urging that the PO be dismissed for failing the Mukisa Biscuit threshold; that the Section 79G test is met; that the intended appeal is arguable (jurisdiction, service, arbitrator immunity, multiplicity); and that stay is warranted under Order 42 Rule 6.
5. Both the application and the Preliminary Objection were heard together. The Applicant filed its submissions dated 25 March 2024, in support of the application and also in opposition to the Respondent’s Preliminary Objection.
6. The Respondent filed two sets of submissions. One, dated 06 July 2025, in opposition to the Amended Notice of Motion dated 15 February 2024, and the other dated 04 July 2025 in support of its Preliminary Objection dated 11 March 2024.
Analysis and determination
7. Having duly considered the pleadings filed and the parties’ respective submissions, I find that the following issues arise for determination: -
i. Whether the Preliminary Objection dated 11 March 2024 is competent and merited.
ii. Whether the Applicant has met the threshold for granting leave to appeal out of time under Section 79G of the Civil Procedure Act.
iii. Whether to grant a stay of proceedings and on what terms.
Whether the Preliminary Objection dated 11 March 2024 is merited
8. The law on Preliminary Objection is settled. The principles to be met are set out in Mukisa Biscuits Manufacturing Co. Ltd v. West End Distributors [1969] EA 696, and as restated by the Supreme Court of Kenya in the case of Joho & another v Shahbal & 2 others [2014] KESC 34 (KLR), where the apex Court stated at Paragraph 31 thereof that:
“a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.....a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”
9. From the above, it is clear that a preliminary objection cannot be founded on contested facts. Where facts are disputed, or where evidence must be tendered to establish the point raised, the objection ceases to be preliminary. The principle was reiterated in Oraro v Mbaja [2005] KEHC 3182 (KLR), where the Court, in upholding the Mukisa Biscuit principle, stated that a preliminary objection cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.
10. In the present case, the Respondent’s Preliminary Objection dated 11 March 2024 challenges the competency of the Applicant’s supporting affidavit and the annexed exhibits EL 1 to EL 6. In particular, the Respondent alleges that EL 2 to EL 6 bear commissioning dates of 19 January 2024, whereas the supporting affidavit was commissioned later, 15 February 2024, making it a legal impossibility for a commissioner to seal exhibits a month before the affidavit existed. This, according to the Respondent, violated, among others, Rule 9 of the Oaths and Statutory Declarations Rules, which requires that exhibits must be sealed and marked at the time of commissioning the affidavit.
11. It was further the Respondent’s argument that annex EL -1 was not sealed at all and that Exhibits EL-1 to EL-6 are fabrications and forgeries because they were allegedly commissioned on 19th January 2024, whereas the supporting affidavit itself was commissioned on 15th February 2024.
12. Finally, the Respondent contended that the affidavit in support of the Amended Notice of Motion was incompetent and liable to be struck out for having been sworn by the Applicant’s Counsel (Ms. Eunice Lumallas) on contested matters contrary to Order 19 Rule 3(1). The Respondent referred this Court to the decision of 4 April 2025 (Hon. Prof. Dr. Sifuna, J), which had already remarked that such conduct is improper and such an affidavit is at risk of being struck out.
13. The Applicant, on its part, argued that the preliminary objection by the Respondent involves contested facts and therefore fails to meet the Mukisa Biscuit threshold. According to the Applicant, the question of whether the annexures were properly commissioned, whether the stamp imagery on the exhibits reflects the correct date, or whether the deponent had personal knowledge of the facts deponed to in the supporting affidavit, are factual questions, requiring inquiry beyond the record, including possibly cross-examination.
14. It was further the Applicant’s argument that the PO does not arise properly from the pleadings. The Applicant urged the Court to dismiss the objection and proceed to hear the application on merits in line with Article 159(2)(d) of the Constitution, which warns courts against placing undue regard to procedural technicalities.
15. I have duly weighed the parties’ respective submissions. I note that the Respondent alleges that the annexures are fabricated or forged; that the stamps and seals are not authentic; and that the commissioning process is a “legal impossibility.”
16. From the pleadings and submissions, it is clear that the Respondent’s objection requires the Court to investigate whether annexures were properly commissioned, whether stamps on the exhibits were genuine, and whether counsel swore on contested facts. These, in the view of the Court, are factual matters requiring inquiry and possibly cross-examination, which cannot be determined summarily.
17. The Court notes that the discrepancy between when exhibits EL2 to EL6 were stamped (19 January 2024) and when the supporting affidavit was commissioned (15 February 2024) most likely arose when the initial Notice of Motion dated 19 January 2024 was amended on 15th February 2014.
18. In law, an amendment does not create a new or distinct proceeding. It merely perfects, clarifies, or corrects the existing application. Once leave to amend is granted, the amended motion relates back to the date of the original filing, and the application continues as one uninterrupted process.
19. It therefore follows that the affidavit of 19 January 2024 and its annextures remained part of the court record, and may properly be relied upon in support of the amended Motion, to the extent that they are relevant and not inconsistent with the amended prayers, especially in a case like this, where there is no is no evidence that the affidavit had been withdrawn.
20. Additionally, the Court notes that Annexure EL 1, which the Respondent contends was not commissioned, is an order issued by this Court on 24 January 2024, and this Court, being the author, has custody of the original, which naturally forms part of the record of these proceedings, even if none was to be produced/exhibited by the Applicant.
21. The Court is cognisant that Article 159(2)(d) of the Constitution obliges courts to administer justice without undue regard to procedural technicalities. Even assuming the allegations on the defects in the affidavits were to be upheld, the Court, in the circumstances of this case, would still have been guided by that provision of the Constitution.
22. To strike out the application on the basis of a commissioning date error, thereby insulating a potentially jurisdictional nullity from appellate review, would, in my view, be a disproportionate remedy.
23. In the premises, the Court finds that the interests of justice favor hearing the application on its merits.
Whether the Applicant has met the threshold for granting leave to appeal out of time under Section 79G of the Civil Procedure Act
24. Section 79G, Civil Procedure Act, empowers the Court to admit an appeal out of time where the appellant satisfies the Court that there is good and sufficient cause for not filing the appeal in time. The provision states in part 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… 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.”
25. The Supreme Court’s guidance in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others (2014) eKLR remains the touchstone in this area. The guiding principles are that extension of time is discretionary, equitable, and available only to deserving parties; delay must be explained satisfactorily; prejudice to the respondent must be considered.
26. The Court made it clear that extension of time is discretionary, not a right; it is equitably granted; the delay must be explained to the Court’s satisfaction; the Court considers prejudice, promptitude once the applicant became aware, and overall justice.
27. In Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999] 2 EA 156, it was stated that the Court must consider the length of the delay, the reason for the delay, the degree of prejudice to the Respondent if leave is granted, and the importance of the issues raised in the intended appeal.
28. In the present case, it is the Applicant’s position that it filed the application promptly and that any delay in filing the appeal (if any) was neither deliberate nor inordinate and therefore excusable. It was further contended that the Applicant being a foreign national resident outside the jurisdiction (Paris), was unaware of the existence and progression of the lower court proceedings until execution steps were taken. That upon becoming aware of the judgment, the Applicant moved this Court with promptitude. The explanation offered is reasonable and sufficient in the circumstances.
29. The Court notes that the judgment sought to be appealed against was delivered on 3 July 2023. The Applicant thereafter first approached the Court on 19 January 2024, a delay of approximately 6½ months. The Applicant says he is a foreign resident, disputes valid service out of jurisdiction, and emphasizes the transnational arbitration context (Helsinki seat, ICC rules, tribunal action), which, according to him, complicated instructions taking, document collation, and strategic assessment.
30. While foreign residence of the Applicant is not in itself a complete excuse, the Court, in the totality of circumstances, accepts that explanation for the limited purpose of Section 79G of the Civil Procedure Act, particularly in the face of the allegation by the Applicant that no of leave of the Court to effect summons out of jurisdiction was obtained prior to the alleged service, an allegation which the Respondent has not materially disputed.
31. On the arguability of the intended appeal, the Applicant contends that the intended appeal is arguable since it raises the question of jurisdiction, that is, whether the magistrate’s court had territorial and subject-matter jurisdiction over a foreign arbitrator, contrary to the arbitration agreement seated in Helsinki under the ICC Rules. There are also issues of alleged forum Shopping (whether the Respondent abused process by filing parallel suits in France, Helsinki, and Kenya).
32. Jurisdictional questions are never frivolous; they go to the root of the matter. In Owners of Motor Vessel “Lilian S” v Caltex Oil (Kenya) Ltd [1989] eKLR: Nyarangi JA stated:
“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”
33. Further, it is settled law that an arguable appeal is not one that must succeed, but one that raises bona fide issues deserving judicial consideration. The Court of Appeal in Kenafric Matches Ltd v Match Masters Limited & another [2021] KECA 188 (KLR), stated that:
“On the first principle, as to whether the appeal is arguable, we have to consider whether there is a single bona fide arguable ground that has been raised by the applicant in order to warrant ventilation before this Court. In Stanley Kang’ethe Kinyanjui v Tony Ketter & 5 Others [2013] eKLR , this Court described an arguable appeal in the following terms: “vii). An arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the court; one which is not frivolous. viii). In considering an application brought under Rule 5 (2) (b) the court must not make definitive or final findings of either fact or law at that stage as doing so may embarrass the ultimate hearing of the main appeal.”
34. From the draft Memorandum of Appeal, the Court notes that the Applicant raises, inter alia:
i. whether the lower court had jurisdiction in light of the arbitration agreement and seat of arbitration;
ii. whether service outside jurisdiction was lawfully effected; and
iii. whether the proceedings and judgment offended the right to be heard.
35. The above issues are weighty questions of law, which cannot be described as frivolous. The Court is therefore satisfied that the intended appeal is arguable, and therefore ought to be ventilated on merits.
Whether to grant a stay of proceedings and on what terms
36. The Applicant moved this Court for an order of stay of proceedings in Civil Case No.9449 in the lower court. The application is based on Order 51 Rule 1, Order 8 Rule 7 of the Civil Procedure Rules; Sections 1A, 1B, 3A, 79G and 95 of the Civil Procedure Act, Articles 50 & 159 of the Constitution of Kenya 2010.
37. As a preliminary issue, it is critical to point out that the Court notes that the Applicant seeks an order of stay of proceedings and not stay of execution pending appeal. This distinction, however, does not constrain the Court’s jurisdiction to grant appropriate relief in the circumstances of this case.
38. The statutory framework under Order 42 Rule 6(1) of the Civil Procedure Rules expressly provides that an appeal does not operate as a stay of either execution or proceedings, except as ordered by the Court. The Rule places “execution” and “proceedings” side by side, thereby recognizing that a stay may operate on either or both dimensions depending on the circumstances.
39. Existing jurisprudence confirms that a stay of proceedings is, in fact, the wider and more intrusive of the two remedies. In Waweru v Bor & Another [2024] KEHC 6325, the Court considered an application expressly grounded on “stay of proceedings pending appeal” and acknowledged that, where necessary to preserve the substratum of the appeal, stay of proceedings may restrain all further steps in the suit, including steps that would otherwise culminate in execution.
40. It therefore follows that the Court finds unmeritorious the Respondent’s argument that a “stay of execution” cannot be granted in a case where an applicant has only prayed for “stay of proceedings.” As pointed out above, the term “proceedings” is much wider and extends to the execution proceedings in respect of a particular case.
41. In this case, the Applicant contended that unless a stay of proceedings is granted, the intended appeal will be rendered nugatory, as execution and consequential proceedings in the lower court will continue.
42. The Respondent, on the other hand, fears further delay and dissipation of the value of its judgment. The Respondent further argued that the judgment is monetary and that the Respondent is capable of refunding.
43. It is a well-settled principle of law that the discretion to grant a stay of execution/proceedings is a judicial one and is discretionary. In the case of William Odhiambo Ramogi & 2 others v the Honourable Attorney General & 3 others [2019] eKLR, a 5-judge Bench of the High Court laid down the principles our Courts have established for the grant of stay of proceedings pending the hearing and determination of an appeal. The principles to consider are: -
(a) If there is a pending appeal in the higher court.
(b) The Applicant should explain why a stay has not been sought in the higher court since the policy is to move to the said court, which is better placed to calibrate its orders.
(c) There must be a demonstration that the appeal raises substantial questions to be determined or is otherwise arguable.
(d) There must be a demonstration of the appeal being rendered nugatory.
(e) Exceptional circumstances must be demonstrated which make the stay of proceedings warranted as opposed to hearing the case concluded safely and all arising grievances taken up on a single appeal.
(f) The Applicant must demonstrate that the application was filed expeditiously and without delay.
44. In the present case, the Court having established in the preceding paragraphs that the application was, in the circumstances, made timeously and that the intended appeal is arguable, I find that the principles espoused under William Odhiambo Ramogi & 2 others (supra) have been met.
45. It must, however, be remembered that an application for stay pending appeal is an equitable remedy and is always granted at the discretion of the court. In Butt v Rent Restriction Tribunal [1982] KLR 417, the Court of Appeal held that the power to grant a stay is discretionary and must be exercised in such a way as not to prevent an appeal, if successful, from being rendered nugatory.
46. Similarly, in Lloyd Masika Limited v Stanbic Bank Limited [2024] KECA 72 reaffirmed that even where an appeal is arguable, stay pending appeal cannot issue in the absence of, among others, security for the due performance of such decree or order. The Court underscored that the power to grant stay is not intended to disadvantage a decree holder who has obtained a lawful judgment, and that security serves as an essential safeguard during the pendency of the appeal.
47. Order 42 Rule 6 (2) of the Civil Procedure Rules provides that:
“No order for stay of execution shall be made under subrule (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.”
48. Accordingly, in the circumstances of this suit, and taking into account that the Applicant is a foreign national, the Court is of the view that a conditional order of stay would be the more appropriate remedy.
Disposition
49. In the result, the Court finds that the Amended Notice of Motion dated 15 February 2024 is merited, while the Respondent’s Preliminary Objection dated 11 March 2024 is found to be without merit. Accordingly, the Court issues the following final orders:
i. The Preliminary Objection dated 11 March 2024 is dismissed.
ii. The Amended Notice of Motion dated 15 February 2024 is allowed.
iii. The Applicant is hereby granted leave to appeal out of time against the judgment delivered on 3 July 2023 in CMCC No. 9449 of 2019.
iv. The Memorandum of Appeal filed herein is deemed as properly filed and served.
v. There shall be a stay of proceedings (including execution) in CMCC No. 9449 of 2019 pending the hearing and determination of the appeal.
vi. The stay is conditional upon the Applicant depositing the sum of Kshs. 7,000,000/= in a joint interest-earning account in the names of the parties' advocates within thirty (30) days of this ruling.
vii. In default of compliance with the condition in (vi) above, the order of stay issued herein shall stand automatically vacated, and the Respondent shall be at liberty to proceed with execution
50. Costs of the Application shall abide by the outcome of the appeal.
51. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
05 FEBRUARY 2026
ADO MOSES
JUDGE
In the presence of: -
C/A – Moses
Nyakundi h/b for Lumallas……………..for the Applicant/Plaintiff
Bullent…………….for the Respondent/Defendant