REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MAKUENI
CIVIL MISC. APPLICATION NO. E039 OF 2025
GOLDEN BOY HAULIERS ……………..…………..….. APPLICANT
VERSUS
DAVID ORINA …………………………………..…..…1 ST RESPONDENT
SAMWEL MOMANYI BENECHA …………………..2 ND RESPONDENT
RULING
1. Before me is the Notice of Motion dated 22/5/2025 brought under order 51 Rule 1, order 42 Rule 6 of the Civil Procedure Rules and Section 3 A and 79G of the Civil Procedure Act .
2. The applicant seeks orders of enlargement of time for the applicant to file appeal out of time; and stay of execution pending the hearing of the appeal and he be allowed to file the memorandum of appeal whose draft is annexed to the application.
3. The ground for the application are on its face and in the affidavit of Sylvester Dede, mainly that the judgment in Makindu MCCC 223/2017 was scheduled for delivery on 28/9/2024 – but was deferred to a different date and delivered in the absence of the applicant who came to learn of it in the first week of March when the time for appeal had already lapsed. That the judgment against the applicant was liability at 80% and general damage at 1,772,920. The applicant proposes that pending the hearing and determination of the appeal ½ the decretal sum be paid unto the 1 st respondent’s/ client account and the other ½ be deposited in a joint interest earning account of the 2 counsel (for the applicant and 1 st respondent/ or into court.
4. The 1 st respondent filed a replying affidavit arguing that the applicant had not given any good reason for the delay/any security and proposes that if orders are granted then 50% of the decretal sum – Kshs. 1,232,012 be paid to the respondent and the balance – Kshs. 541,908 be deposited in joint interest earning account; That the 2 nd respondent has already paid their 20% which is 487,717 and need not be dragged back to court.
8. was aware of the judgment from the date of delivery – that judgment was delivered on 6/2/2025 arguing also that
9. The 2 nd Respondent filed ground of opposition on the grounds that the application has been filed over 3 months since judgment was delivered; That the 1 st respondent informed the applicant of the terms of the judgment since 21/2/2025. That the 2 nd respondent has settled their part of the decretal sum.
10. The parties i.e applicant and 1 st respondent filed written submissions which I have considered.
11. For the applicant 2 issues are set out for determination :-
1. Whether the application has merit
2. Who bears costs?
12. For the respondent it is submitted that the applicant was aware of the judgment long before the time to appeal lapsed;That the applicant has not sought any stay of execution pending the hearing of the appeal hence no orders should be made to that effect- any such orders should be on condition of the payment as deponed in the replying affidavit.
13. On whether the application has merit, the applicant relies on Dilpack Kenya Limited Vs William Muthama Kitonyi [2018] eKLR KEHC 4858 (KLR) as cited in first American Bank of Kenya Ltd Vs Gulab P Shah and 2 others(Milimani) HCCC No. 2255 of 2000 [2002] IEA 65 on the principles applicable when determining the extension/enlargement of time. The applicant must explain the delay if any, the merits - if any of the appeal; whether the respondent can be adequately compensated by way of costs for any prejudice it may suffer.
14. It is submitted that documents alleged to have been sent to their email never got there because counsel for 1 st respondent used the email kkiariekariuki@yahoo.com yet the applicant’s official email is kkiariekariuki99@yahoo.com
15. The applicant further relies on Manyara Vs Teachers Service Commission [2022] KECA 878 KLR where application for similar prayers was allowed 5 years after the trial court and judgment.
16. On the merits of the appeal, the applicant submits, that should be left for the appeal – that the applicant has already deposited Kshs. 500,000 to the advocate/client account of 1 st respondent as per the court order of 25/5/2025.
17. On costs, the applicant argues that costs follow the event as per section 27(1) of the Civil Procedure Act however it would be fair for each party to bear its costs.
18. Having carefully considered the evidence before me – and the issues which were set out by the parties – the issue is; Does the application have merit?
19. This is an application for enlargement of time to file appeal. I note that it is not clear when the judgment was delivered – the copy attached by applicant does not bear a date/signature of the trial court – it simply states delivered in open court on ……… of ………... 2025 .
20. The letter dated 11/2/2025 it addressed to K. Honga & Co. Advocates saying that judgment was delivered on 6/2/2025. It is copied to Kiarie Kariuki & Associates but no evidence of receipt – and the email is written to kkiariekariuki@yahoo.com which address is denied by counsel for the applicant - saying their address is different.
21. Evidently – it is clear, judgment was to be delivered on 26/9/2024. It was delivered on 6/2/2025 according to Respondents - there is no notice of the delivery, no evidence that the applicant was present or aware – and it is clear that if the email was sent to wrong address the applicant did not receive the same.
22. In the circumstances I am of the view that the applicant’s explanation of the delay - is good and sufficient to warrant enlargement of time. There is no application for stay of execution pending appeal.
23. The applicant and the respondent are in agreement that should the court allow the application there should be a condition regarding the decretal sum.
24. Having found that the application has merit – it is allowed on condition that ;
1) The applicant Deposits ½ of the 80% decretal sum in the 1 st respondent client/Advocate’s Account and the other ½ in a joint interest earning account within 30 days hereof
2) Appeal be lodged within 15 days hereof.
3) Costs to abide the outcome of the appeal.
Dated, signed and delivered this 6 th February 2026
Mumbua T. Matheka
Judge
Court Assistant – Mwiwa/Daniel
Counsel for Applicant: Mr. Dede
Counsel for Respondent : Mr. Mboga for 1 st Respondent
Ruling HC Misc. E039 of 2025 Page 2 of 2
IN THE HIGH COURT OF KENYA AT MAKUENI
CIVIL MISC. APPLICATION NO. E039 OF 2025
GOLDEN BOY HAULIERS ……………..…………..….. APPLICANT
VERSUS
DAVID ORINA …………………………………..…..…1 ST RESPONDENT
SAMWEL MOMANYI BENECHA …………………..2 ND RESPONDENT
RULING
1. Before me is the Notice of Motion dated 22/5/2025 brought under order 51 Rule 1, order 42 Rule 6 of the Civil Procedure Rules and Section 3 A and 79G of the Civil Procedure Act .
2. The applicant seeks orders of enlargement of time for the applicant to file appeal out of time; and stay of execution pending the hearing of the appeal and he be allowed to file the memorandum of appeal whose draft is annexed to the application.
3. The ground for the application are on its face and in the affidavit of Sylvester Dede, mainly that the judgment in Makindu MCCC 223/2017 was scheduled for delivery on 28/9/2024 – but was deferred to a different date and delivered in the absence of the applicant who came to learn of it in the first week of March when the time for appeal had already lapsed. That the judgment against the applicant was liability at 80% and general damage at 1,772,920. The applicant proposes that pending the hearing and determination of the appeal ½ the decretal sum be paid unto the 1 st respondent’s/ client account and the other ½ be deposited in a joint interest earning account of the 2 counsel (for the applicant and 1 st respondent/ or into court.
4. The 1 st respondent filed a replying affidavit arguing that the applicant had not given any good reason for the delay/any security and proposes that if orders are granted then 50% of the decretal sum – Kshs. 1,232,012 be paid to the respondent and the balance – Kshs. 541,908 be deposited in joint interest earning account; That the 2 nd respondent has already paid their 20% which is 487,717 and need not be dragged back to court.
8. was aware of the judgment from the date of delivery – that judgment was delivered on 6/2/2025 arguing also that
9. The 2 nd Respondent filed ground of opposition on the grounds that the application has been filed over 3 months since judgment was delivered; That the 1 st respondent informed the applicant of the terms of the judgment since 21/2/2025. That the 2 nd respondent has settled their part of the decretal sum.
10. The parties i.e applicant and 1 st respondent filed written submissions which I have considered.
11. For the applicant 2 issues are set out for determination :-
1. Whether the application has merit
2. Who bears costs?
12. For the respondent it is submitted that the applicant was aware of the judgment long before the time to appeal lapsed;That the applicant has not sought any stay of execution pending the hearing of the appeal hence no orders should be made to that effect- any such orders should be on condition of the payment as deponed in the replying affidavit.
13. On whether the application has merit, the applicant relies on Dilpack Kenya Limited Vs William Muthama Kitonyi [2018] eKLR KEHC 4858 (KLR) as cited in first American Bank of Kenya Ltd Vs Gulab P Shah and 2 others(Milimani) HCCC No. 2255 of 2000 [2002] IEA 65 on the principles applicable when determining the extension/enlargement of time. The applicant must explain the delay if any, the merits - if any of the appeal; whether the respondent can be adequately compensated by way of costs for any prejudice it may suffer.
14. It is submitted that documents alleged to have been sent to their email never got there because counsel for 1 st respondent used the email kkiariekariuki@yahoo.com yet the applicant’s official email is kkiariekariuki99@yahoo.com
15. The applicant further relies on Manyara Vs Teachers Service Commission [2022] KECA 878 KLR where application for similar prayers was allowed 5 years after the trial court and judgment.
16. On the merits of the appeal, the applicant submits, that should be left for the appeal – that the applicant has already deposited Kshs. 500,000 to the advocate/client account of 1 st respondent as per the court order of 25/5/2025.
17. On costs, the applicant argues that costs follow the event as per section 27(1) of the Civil Procedure Act however it would be fair for each party to bear its costs.
18. Having carefully considered the evidence before me – and the issues which were set out by the parties – the issue is; Does the application have merit?
19. This is an application for enlargement of time to file appeal. I note that it is not clear when the judgment was delivered – the copy attached by applicant does not bear a date/signature of the trial court – it simply states delivered in open court on ……… of ………... 2025 .
20. The letter dated 11/2/2025 it addressed to K. Honga & Co. Advocates saying that judgment was delivered on 6/2/2025. It is copied to Kiarie Kariuki & Associates but no evidence of receipt – and the email is written to kkiariekariuki@yahoo.com which address is denied by counsel for the applicant - saying their address is different.
21. Evidently – it is clear, judgment was to be delivered on 26/9/2024. It was delivered on 6/2/2025 according to Respondents - there is no notice of the delivery, no evidence that the applicant was present or aware – and it is clear that if the email was sent to wrong address the applicant did not receive the same.
22. In the circumstances I am of the view that the applicant’s explanation of the delay - is good and sufficient to warrant enlargement of time. There is no application for stay of execution pending appeal.
23. The applicant and the respondent are in agreement that should the court allow the application there should be a condition regarding the decretal sum.
24. Having found that the application has merit – it is allowed on condition that ;
1) The applicant Deposits ½ of the 80% decretal sum in the 1 st respondent client/Advocate’s Account and the other ½ in a joint interest earning account within 30 days hereof
2) Appeal be lodged within 15 days hereof.
3) Costs to abide the outcome of the appeal.
Dated, signed and delivered this 6 th February 2026
Mumbua T. Matheka
Judge
Court Assistant – Mwiwa/Daniel
Counsel for Applicant: Mr. Dede
Counsel for Respondent : Mr. Mboga for 1 st Respondent
Ruling HC Misc. E039 of 2025 Page 2 of 2