[1] The Notice of Motion dated 9 TH January 2025 was filed herein by the applicant, Jared Akoth Ngoya, pursuant to the provisions of Sections 3A, 79G and 95 of the Civil Procedure Act, Chapter 21 of the Laws of Kenya; as well as Order 22 Rule 22(1), 42 Rule 6 and Order 50 Rule 6 of the Civil Procedure Rules , 2010, for the following orders:
[a] Spent
[b] Spent
[c] That the Court be pleased to grant leave to the applicant to appeal out of time against the judgment of Hon. Cynthia Chepkoech Cheruiyot, Resident Magistrate, in Oyugis CMCC No. E138 of 2022: Emmanuel Kiboko Aoko v Jared Akoth Ngoya delivered on the 24 th November 2024.
[d] That the Court be pleased to order a stay of execution of the Judgment, costs and interest in Oyugis CMCC No. E138 of 2022: Emmanuel Kiboko Aoko v Jared Akoth Ngoya delivered by the trial court on 14 th November 2024 for Kshs. 113,525 pending the hearing and determination of the intended appeal.
[e] Upon prayers [c] and [d] being granted, the Court be pleased to order the decretal sum of Kshs. 113,525 be secured by way of a bank guarantee pending the hearing and determination of the intended appeal.
[f] Costs of the application abide the outcome of the intended appeal.
[2] The application was premised on the grounds that judgment in Oyugis CMCC No. E138 of 2022: Emmanuel Kiboko Aoko v Jared Akoth Ngoya was delivered on 14 th November 2024; and that upon delivery of the judgment, counsel tried tracing the applicant in vain. It was averred that it was only in early January 2025 that the applicant was traced and notified of the outcome of his case; and therefore the instructions to file an appeal was given after the 30 days’ appeal period had lapsed.
[3] In the Supporting affidavit sworn by the applicant, he deposed that judgment was delivered while he was out of the country for medical purposes and therefore could not be reached by his advocates. He explained that he inadvertently omitted to inform his advocates that he was going out of the country on a medical emergency; and that upon return, he got to learn from them that judgment had been passed against him.
[4] The applicant further deposed that he is dissatisfied with the decision of the lower court and is desirous of filing an appeal but cannot do so out of time without leave. He posited that his intended appeal is arguable and raises pertinent issues of law and therefore has overwhelming chances of success. The applicant further averred that his insurers are willing and able to provide a bank guarantee from Family Bank equal to the due performance of the decree as security pending the hearing and determination of the appeal; and therefore the respondent will not suffer any prejudice that is not capable of being compensated by way of costs.
[5] The application was opposed by the respondent. He filed a Replying Affidavit sworn on 23 rd January 2025 and averred that the applicant has failed to provide a satisfactory explanation for the delay in filing the appeal. According to the respondent, the applicant is merely seeking to delay the course of justice. He urged for the dismissal of the application with costs, contending that it amounts to an abuse of the court process.
[6] The application was canvassed by way of written submissions. The applicant relied on his written submissions dated 8 th February 2025. He reiterated the factual background of his application and the applicable law, namely Section 79G of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules. He also relied on Edith Gichungu Koine v Stephen Njagi Thoiti [2014] eKLR and Julius Kamau Kithaka v Waruguru Kithaka Nyaga & 2 others, Civil Appeal No. 14 of 2013 in which the principles for consideration in an application for leave to appeal out of time were discussed, namely: the period of delay, the reasons for delay and the degree of prejudice to the respondent if the application is granted.
[7] Accordingly, the applicant proposed the following issues for determination:
[a] Whether there was unreasonable delay; and the reasons for the delay;
[b] Whether the respondent will be prejudiced if the application is granted;
[c] Whether the appeal has chances of success.
[8] The applicant submitted that, since his application to appeal out of time is dated 9 th January 2025, it means there was a delay of only one week. He therefore submitted that the delay was not inordinate. He relied on Veronica Gathoni Mwangi & another v Samuel Kagwi Ngure & another [2016] eKLR in which a delay of 3 months was excused.
[9] The applicant also urged the Court to find that the explanation offered by him for the delay, namely, that he was out of the country for medical reasons, is plausible. He submitted that failure to file an appeal within time was due to unforeseen event that led to communication breakdown between him and his counsel.
[10] On whether the respondent stands to suffer any prejudice if his application is granted, the applicant urged the Court to note that the respondent did not show how he will be adversely affected or prejudiced if the application to appeal out of time is allowed. He pointed out that he is willing to furnish security by way of a bank guarantee to cushion the interests of the respondent. In this regard, the applicant relied on Samuel Mwaura Muthumbi v Josephine Wanjiru Ngugi & another [2018] eKLR and Selestical Limited v Global Rock Development [2015] eKLR.
[11] On the merits of the intended appeal, the applicant submitted that he intends to challenge the lower court’s finding on liability and was of the conviction that there was no evidence upon which the lower court’s decision on liability or quantum can be defended because this was not a self-involving accident, but an accident involving a motor vehicle and a motor cycle in which the pillion passenger jumped from the said motor cycle. The applicant placed reliance on Athuman Nusura Juma v Afwa Mohamed Ramadhan , CA No. 14 of 2013 and Julius Kamau Kithaka v Waruguru Kithaka Nyaga (supra) for the proposition that, at this stage, the Court need not make a definitive finding on the merits of the appeal.
[12] The respondent relied on his written submissions dated 24 th February 2025 in which he proposed a single issue for determination, namely, whether or not the application to appeal out of time is merited. He submitted that the application is misconceived, vexatious, frivolous and an abuse of the court process. In the respondent’s submission, the applicant’s Advocates have not tendered evidence to prove that they were diligent in following up on communication with their client; nor was it demonstrated by way of evidence such as treatment notes or travel documents, that the applicant was out of the country during the period in question.
[13] The respondent further submitted that, from the wording of Section 79G of the Civil Procedure Act, an applicant must satisfy the court that he/she has a good and sufficient cause for the delay before the court can consider extension of time; which in his view was not demonstrated. He relied on Diplack Kenya Limited v William Muthama Kitonyi [2018] eKLR, Nicholas Kiptoo Korir arap Salat v IEBC & 7 others [2014] eKLR and Paul Musili Wambua v Attorney General & 2 others [2015] eKLR in urging for the dismissal of the instant application.
[14] In the premises, the only issue for determination in respect of the subject application is whether sufficient cause has been shown by the applicant for leave to file an appeal out of time from the Judgment of the lower court in Oyugis CMCC No. 138 of 2022 . The key enabling provision relied on by the applicant is Section 79G of the Civil Procedure Act, which stipulates that:
"Every appeal from a subordinate court to the High Court shall be filed within a period of 30 days from the date of the decree or order appealed against excluding from such period any time which the lower court may certify as having been requisite for preparation and delivery to the appellant of a copy of the decree or order:
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."
[15] One of the provisions that must always be borne in mind while dispensing justice is Article 159(2)(d) of the Constitution ; in respect of which, the Supreme Court held thus in Raila Odinga v Independent Electoral and Boundaries Commission & 4 Others [2013] eKLR:
“The essence of that provision is that a court of law should not allow the prescriptions of procedure and form to trump the primary object of dispensing substantive justice to the parties. This principle of merit, however, in our opinion, bears no meaning cast in stone and which suits all situations of dispute resolution. On the contrary, the court as an agency of the processes of justice, is called upon to appreciate all the relevant circumstances and requirements of a particular case, and conscientiously determine the best outcome.”
[16] It is plain therefore that the Court, when considering an application such as the instant one, has unfettered discretion; and therefore need only concern itself with whether justifiable cause has been shown to warrant such exercise of discretion. For this reason, the principles laid down by the Supreme Court in Nicholas Kiptoo Korir arap Salat v IEBC & 7 Others [2014] eKLR are pertinent; namely:
“(T)he underlying principles a court should consider in exercise of such discretion include:
1. Extension of time is not a right of any party. It is an equitable remedy that is only available to a deserving party at the discretion of the court;
2. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;
3. Whether the court should exercise the discretion to extend time, is a consideration to be made a case to case basis;
4. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;
5. whether there will be any prejudice suffered by the Respondent if the extension is granted;
6. Whether the application has been brought without undue delay.
...”
[17] The same principles were enunciated in Civil Application No.255 of 1999 : Leo Sila Mutiso v Rose Hellen Wangari Mwangi, in which the Court of Appeal held that:
“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters which this court takes into account in deciding whether to grant an extension of time are: first, the length of the delay; secondly, the reason for the delay; thirdly (possibly), the chances of the appeal succeeding if the application is granted; and fourthly, the degree of prejudice to the respondent if the application is granted.”
[18] Accordingly, for purposes of determining whether the applicant is entitled to the discretion of this Court, I have considered the application for extension of time to appeal under the following parameters:
[a] whether there is a good and reasonable explanation for the delay;
[b] whether the application has been brought without undue delay;
[c] whether the proposed appeal is arguable, and
[d] whether any prejudice will be suffered by respondent.
[19] The applicant explained that he had travelled out of the country for medical purposes and that due to the urgent nature of the travel he inadvertently omitted to notify his counsel thereby occasioning communication break-down during the period he was away. Although no documents were presented by the applicant to demonstrate that he travelled out of the country, his earnestness is manifest in that, as soon as he was made aware of the impugned judgment he filed the instant application, such that the delay in effect amounted to only one week.
[20] I am further satisfied that the delay was not inordinate, granted that the application was filed on 9 th January 2025 in respect of a decision delivered on 14 th November 2024, bearing in mind the stipulation in Order 50 Rule 4 of the Civil Procedure Rules that:
Except where otherwise directed by a judge for reasons to be recorded in writing, the period between the twenty-first day of December in any year and the thirteenth day of January in the year next following, both days included, shall be omitted from any computation of time (whether under these Rules or any order of the court) for the amending, delivering or filing of any pleading or the doing of any other act:
Provided that this rule shall not apply to any application in respect of a temporary injunction.
[21] I am in agreement with the submission of the appellant that the period of delay ought to be reckoned from the last of the 30 days provided for in Section 79G of the Civil Procedure Act (see Veronica Gathoni Mwangi & another v Samuel Kagwi Ngure & another ).
[22] As to whether the appeal is arguable, the applicant submitted that he intends to challenge the lower court’s finding on liability. His posturing was that there was no evidence upon which the lower court’s decision on liability or quantum can be defended, since this was not a self-involving accident, but an accident involving a motor vehicle and a motor cycle in which the pillion passenger jumped from the said motor cycle. That is a valid ground of appeal, considering that at this stage such issues as to the merit of the appeal need not be determined with finality (see Athman Nusura Juma v Afwa Mohamed Ramadhan , CA No. 14 of 2013 and Julius Kamau Kithaka v Waruguru Kithaka Nyaga (supra)).
[23] I note that the applicant is ready to furnish such security as the Court may require and went ahead and proposed that his insurers are willing to provide a bank guarantee from Family Bank Ltd to cover the decretal sum. It is noteworthy however that the bank guarantee annexed to the Supporting Affidavit was issued on 6 th July 2023 and was to lapse after a period of 12 months. The Court is therefore at liberty to issue such a condition for stay as it deems fit in the circumstances.
[24] It is imperative that the respondent’s rights be balanced with the applicant’s right of appeal and therefore taking into consideration all the facts presented before the Court it is my finding that the applicant has shown that he ought to be given an opportunity to exercise his right of appeal. Indeed, in Banco Arabe vs. Bank of Uganda [1999] 1 EA 22, it was held that:
"The administration of justice should normally require that the substance of all disputes should be investigated and decided on their merits and that errors, lapses should not necessarily debar a litigant from the pursuance of his rights and unless lack of adherence to rules renders the appeal process difficult and inoperative. It should seem that the main purpose of litigation, namely, the hearing and determination of disputes should be fostered rather than hindered."
[25] In the result, I find merit in the application dated 9 th January 2025. The same is hereby allowed and orders granted as follows:
[a] That leave be and is hereby granted to the applicant to appeal out of time against the judgment of Hon. Cynthia Chepkoech Cheruiyot, Resident Magistrate, in Oyugis CMCC No. E138 of 2022: Emmanuel Kiboko Aoko v Jared Akoth Ngoya delivered on the 24 th November 2024. The intended appeal be filed within 30 days from the date hereof.
[b] That an order of stay of execution of the Judgment, costs and interest in Oyugis CMCC No. E138 of 2022: Emmanuel Kiboko Aoko v Jared Akoth Ngoya delivered by the trial court on 14 th November 2024 for Kshs. 112,525 be and is hereby granted pending the hearing and determination of the intended appeal.
[c] That by way of security, the decretal sum of Kshs. 113,525 be deposited in an interest earning account in the joint names of counsel on record herein for the parties within 30 days from the date hereof, pending the hearing and determination of the intended appeal.
[d] Costs of the application to be borne by the applicant.
It is so ordered.
DATED, SIGNED AND DELIVERED AT HOMA BAY THIS 29 TH DAY OF MAY 2025
[a] Spent
[b] Spent
[c] That the Court be pleased to grant leave to the applicant to appeal out of time against the judgment of Hon. Cynthia Chepkoech Cheruiyot, Resident Magistrate, in Oyugis CMCC No. E138 of 2022: Emmanuel Kiboko Aoko v Jared Akoth Ngoya delivered on the 24 th November 2024.
[d] That the Court be pleased to order a stay of execution of the Judgment, costs and interest in Oyugis CMCC No. E138 of 2022: Emmanuel Kiboko Aoko v Jared Akoth Ngoya delivered by the trial court on 14 th November 2024 for Kshs. 113,525 pending the hearing and determination of the intended appeal.
[e] Upon prayers [c] and [d] being granted, the Court be pleased to order the decretal sum of Kshs. 113,525 be secured by way of a bank guarantee pending the hearing and determination of the intended appeal.
[f] Costs of the application abide the outcome of the intended appeal.
[2] The application was premised on the grounds that judgment in Oyugis CMCC No. E138 of 2022: Emmanuel Kiboko Aoko v Jared Akoth Ngoya was delivered on 14 th November 2024; and that upon delivery of the judgment, counsel tried tracing the applicant in vain. It was averred that it was only in early January 2025 that the applicant was traced and notified of the outcome of his case; and therefore the instructions to file an appeal was given after the 30 days’ appeal period had lapsed.
[3] In the Supporting affidavit sworn by the applicant, he deposed that judgment was delivered while he was out of the country for medical purposes and therefore could not be reached by his advocates. He explained that he inadvertently omitted to inform his advocates that he was going out of the country on a medical emergency; and that upon return, he got to learn from them that judgment had been passed against him.
[4] The applicant further deposed that he is dissatisfied with the decision of the lower court and is desirous of filing an appeal but cannot do so out of time without leave. He posited that his intended appeal is arguable and raises pertinent issues of law and therefore has overwhelming chances of success. The applicant further averred that his insurers are willing and able to provide a bank guarantee from Family Bank equal to the due performance of the decree as security pending the hearing and determination of the appeal; and therefore the respondent will not suffer any prejudice that is not capable of being compensated by way of costs.
[5] The application was opposed by the respondent. He filed a Replying Affidavit sworn on 23 rd January 2025 and averred that the applicant has failed to provide a satisfactory explanation for the delay in filing the appeal. According to the respondent, the applicant is merely seeking to delay the course of justice. He urged for the dismissal of the application with costs, contending that it amounts to an abuse of the court process.
[6] The application was canvassed by way of written submissions. The applicant relied on his written submissions dated 8 th February 2025. He reiterated the factual background of his application and the applicable law, namely Section 79G of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules. He also relied on Edith Gichungu Koine v Stephen Njagi Thoiti [2014] eKLR and Julius Kamau Kithaka v Waruguru Kithaka Nyaga & 2 others, Civil Appeal No. 14 of 2013 in which the principles for consideration in an application for leave to appeal out of time were discussed, namely: the period of delay, the reasons for delay and the degree of prejudice to the respondent if the application is granted.
[7] Accordingly, the applicant proposed the following issues for determination:
[a] Whether there was unreasonable delay; and the reasons for the delay;
[b] Whether the respondent will be prejudiced if the application is granted;
[c] Whether the appeal has chances of success.
[8] The applicant submitted that, since his application to appeal out of time is dated 9 th January 2025, it means there was a delay of only one week. He therefore submitted that the delay was not inordinate. He relied on Veronica Gathoni Mwangi & another v Samuel Kagwi Ngure & another [2016] eKLR in which a delay of 3 months was excused.
[9] The applicant also urged the Court to find that the explanation offered by him for the delay, namely, that he was out of the country for medical reasons, is plausible. He submitted that failure to file an appeal within time was due to unforeseen event that led to communication breakdown between him and his counsel.
[10] On whether the respondent stands to suffer any prejudice if his application is granted, the applicant urged the Court to note that the respondent did not show how he will be adversely affected or prejudiced if the application to appeal out of time is allowed. He pointed out that he is willing to furnish security by way of a bank guarantee to cushion the interests of the respondent. In this regard, the applicant relied on Samuel Mwaura Muthumbi v Josephine Wanjiru Ngugi & another [2018] eKLR and Selestical Limited v Global Rock Development [2015] eKLR.
[11] On the merits of the intended appeal, the applicant submitted that he intends to challenge the lower court’s finding on liability and was of the conviction that there was no evidence upon which the lower court’s decision on liability or quantum can be defended because this was not a self-involving accident, but an accident involving a motor vehicle and a motor cycle in which the pillion passenger jumped from the said motor cycle. The applicant placed reliance on Athuman Nusura Juma v Afwa Mohamed Ramadhan , CA No. 14 of 2013 and Julius Kamau Kithaka v Waruguru Kithaka Nyaga (supra) for the proposition that, at this stage, the Court need not make a definitive finding on the merits of the appeal.
[12] The respondent relied on his written submissions dated 24 th February 2025 in which he proposed a single issue for determination, namely, whether or not the application to appeal out of time is merited. He submitted that the application is misconceived, vexatious, frivolous and an abuse of the court process. In the respondent’s submission, the applicant’s Advocates have not tendered evidence to prove that they were diligent in following up on communication with their client; nor was it demonstrated by way of evidence such as treatment notes or travel documents, that the applicant was out of the country during the period in question.
[13] The respondent further submitted that, from the wording of Section 79G of the Civil Procedure Act, an applicant must satisfy the court that he/she has a good and sufficient cause for the delay before the court can consider extension of time; which in his view was not demonstrated. He relied on Diplack Kenya Limited v William Muthama Kitonyi [2018] eKLR, Nicholas Kiptoo Korir arap Salat v IEBC & 7 others [2014] eKLR and Paul Musili Wambua v Attorney General & 2 others [2015] eKLR in urging for the dismissal of the instant application.
[14] In the premises, the only issue for determination in respect of the subject application is whether sufficient cause has been shown by the applicant for leave to file an appeal out of time from the Judgment of the lower court in Oyugis CMCC No. 138 of 2022 . The key enabling provision relied on by the applicant is Section 79G of the Civil Procedure Act, which stipulates that:
"Every appeal from a subordinate court to the High Court shall be filed within a period of 30 days from the date of the decree or order appealed against excluding from such period any time which the lower court may certify as having been requisite for preparation and delivery to the appellant of a copy of the decree or order:
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."
[15] One of the provisions that must always be borne in mind while dispensing justice is Article 159(2)(d) of the Constitution ; in respect of which, the Supreme Court held thus in Raila Odinga v Independent Electoral and Boundaries Commission & 4 Others [2013] eKLR:
“The essence of that provision is that a court of law should not allow the prescriptions of procedure and form to trump the primary object of dispensing substantive justice to the parties. This principle of merit, however, in our opinion, bears no meaning cast in stone and which suits all situations of dispute resolution. On the contrary, the court as an agency of the processes of justice, is called upon to appreciate all the relevant circumstances and requirements of a particular case, and conscientiously determine the best outcome.”
[16] It is plain therefore that the Court, when considering an application such as the instant one, has unfettered discretion; and therefore need only concern itself with whether justifiable cause has been shown to warrant such exercise of discretion. For this reason, the principles laid down by the Supreme Court in Nicholas Kiptoo Korir arap Salat v IEBC & 7 Others [2014] eKLR are pertinent; namely:
“(T)he underlying principles a court should consider in exercise of such discretion include:
1. Extension of time is not a right of any party. It is an equitable remedy that is only available to a deserving party at the discretion of the court;
2. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;
3. Whether the court should exercise the discretion to extend time, is a consideration to be made a case to case basis;
4. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;
5. whether there will be any prejudice suffered by the Respondent if the extension is granted;
6. Whether the application has been brought without undue delay.
...”
[17] The same principles were enunciated in Civil Application No.255 of 1999 : Leo Sila Mutiso v Rose Hellen Wangari Mwangi, in which the Court of Appeal held that:
“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters which this court takes into account in deciding whether to grant an extension of time are: first, the length of the delay; secondly, the reason for the delay; thirdly (possibly), the chances of the appeal succeeding if the application is granted; and fourthly, the degree of prejudice to the respondent if the application is granted.”
[18] Accordingly, for purposes of determining whether the applicant is entitled to the discretion of this Court, I have considered the application for extension of time to appeal under the following parameters:
[a] whether there is a good and reasonable explanation for the delay;
[b] whether the application has been brought without undue delay;
[c] whether the proposed appeal is arguable, and
[d] whether any prejudice will be suffered by respondent.
[19] The applicant explained that he had travelled out of the country for medical purposes and that due to the urgent nature of the travel he inadvertently omitted to notify his counsel thereby occasioning communication break-down during the period he was away. Although no documents were presented by the applicant to demonstrate that he travelled out of the country, his earnestness is manifest in that, as soon as he was made aware of the impugned judgment he filed the instant application, such that the delay in effect amounted to only one week.
[20] I am further satisfied that the delay was not inordinate, granted that the application was filed on 9 th January 2025 in respect of a decision delivered on 14 th November 2024, bearing in mind the stipulation in Order 50 Rule 4 of the Civil Procedure Rules that:
Except where otherwise directed by a judge for reasons to be recorded in writing, the period between the twenty-first day of December in any year and the thirteenth day of January in the year next following, both days included, shall be omitted from any computation of time (whether under these Rules or any order of the court) for the amending, delivering or filing of any pleading or the doing of any other act:
Provided that this rule shall not apply to any application in respect of a temporary injunction.
[21] I am in agreement with the submission of the appellant that the period of delay ought to be reckoned from the last of the 30 days provided for in Section 79G of the Civil Procedure Act (see Veronica Gathoni Mwangi & another v Samuel Kagwi Ngure & another ).
[22] As to whether the appeal is arguable, the applicant submitted that he intends to challenge the lower court’s finding on liability. His posturing was that there was no evidence upon which the lower court’s decision on liability or quantum can be defended, since this was not a self-involving accident, but an accident involving a motor vehicle and a motor cycle in which the pillion passenger jumped from the said motor cycle. That is a valid ground of appeal, considering that at this stage such issues as to the merit of the appeal need not be determined with finality (see Athman Nusura Juma v Afwa Mohamed Ramadhan , CA No. 14 of 2013 and Julius Kamau Kithaka v Waruguru Kithaka Nyaga (supra)).
[23] I note that the applicant is ready to furnish such security as the Court may require and went ahead and proposed that his insurers are willing to provide a bank guarantee from Family Bank Ltd to cover the decretal sum. It is noteworthy however that the bank guarantee annexed to the Supporting Affidavit was issued on 6 th July 2023 and was to lapse after a period of 12 months. The Court is therefore at liberty to issue such a condition for stay as it deems fit in the circumstances.
[24] It is imperative that the respondent’s rights be balanced with the applicant’s right of appeal and therefore taking into consideration all the facts presented before the Court it is my finding that the applicant has shown that he ought to be given an opportunity to exercise his right of appeal. Indeed, in Banco Arabe vs. Bank of Uganda [1999] 1 EA 22, it was held that:
"The administration of justice should normally require that the substance of all disputes should be investigated and decided on their merits and that errors, lapses should not necessarily debar a litigant from the pursuance of his rights and unless lack of adherence to rules renders the appeal process difficult and inoperative. It should seem that the main purpose of litigation, namely, the hearing and determination of disputes should be fostered rather than hindered."
[25] In the result, I find merit in the application dated 9 th January 2025. The same is hereby allowed and orders granted as follows:
[a] That leave be and is hereby granted to the applicant to appeal out of time against the judgment of Hon. Cynthia Chepkoech Cheruiyot, Resident Magistrate, in Oyugis CMCC No. E138 of 2022: Emmanuel Kiboko Aoko v Jared Akoth Ngoya delivered on the 24 th November 2024. The intended appeal be filed within 30 days from the date hereof.
[b] That an order of stay of execution of the Judgment, costs and interest in Oyugis CMCC No. E138 of 2022: Emmanuel Kiboko Aoko v Jared Akoth Ngoya delivered by the trial court on 14 th November 2024 for Kshs. 112,525 be and is hereby granted pending the hearing and determination of the intended appeal.
[c] That by way of security, the decretal sum of Kshs. 113,525 be deposited in an interest earning account in the joint names of counsel on record herein for the parties within 30 days from the date hereof, pending the hearing and determination of the intended appeal.
[d] Costs of the application to be borne by the applicant.
It is so ordered.
DATED, SIGNED AND DELIVERED AT HOMA BAY THIS 29 TH DAY OF MAY 2025