.REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
HCC MISC NO. E011 OF 2025
JOHN KIPLAGAT KALUM…………………..……………APPLICANT
VERSUS
STANLEY KARANJA GICHINGA………….……..1ST RESPONDENT
AMM ENGINEERING……………………………..2ND RESPONDENT
CAR HOUSE LTD……………………………………3RD RESPONDENT
RULING
1. Vide a notice of motion dated 12.1.2025 supported by the affidavit sworn on even date by Mary Ongong’a the Applicant and brought under the provisions of section 79 9, 1A and 3 A of the Civil Procedure Act Cap 21 Laws of Kenya and orders 42 Rule 6, Order 51 Rule 1, Order 22 Rule 22, Section 5 (b) of the Insurance (Motor Vehicle Third Party Risks) Act CAP 405 Laws of Kenya and article 159 of the Constitution of Kenya, the Applicant John Kiplagat Kalvar approached this court craving for the following orders:-
i. Spent
ii. THAT this Honourable court be pleased to grant leave to the Applicant to file an appeal out of time from the judgement and decree of the Honourable court delivered on 4/10/2024.
iii. Spent
iv. THAT this Honourable Court be pleased to grant an order for stay of execution of the judgement and decree dated 4/10/2024 for Kshs. 370,550/- together with costs and interests in Bungoma CMCC No. E292 of 2022 pending the hearing and determination of the intended appeal.
2. It is instructive to note that the supporting affidavit was sworn by an Advocate from the law firm of Kimondo Gachoka & Co Advocates and not the Applicant himself. It is deposed by Mary Ongong’a that upon delivery of Judgement by the trial court in Bungoma CMCC No. E 292 of 2022 on 4.10.2024, the law firm wrote a letter dated 8.10.2024 to the Director of Claims of Messr Directline Assurance Company Limited, the Applicant’s Insurer informing it of the Judgement and that it was not until the 20.11.2024 the law firm got a response which instructed it to lodge an appeal.
3. Ms Mary Ngong’a further deposes that the delay in communication was due to leadership wrangles among the directors of Messr Directline Assurance Company Limited and that the law firm of Kimondo Gachoka only resumed operations after a ruling in Milimani HCA E328 of 2024 and that at that time the limitation period of 30 days for lodging an appeal had lapsed.
4. It is deponed that the intended appeal has a high probability of success and that execution is imminent and that unless stay orders are granted the Applicant and Messr Directline Assurance Company Ltd stand the risk of suffering substantial loss and irrecoverable loss.
5. It is further deposed that MS Directline Assurance Co Ltd is ready and willing to deposit a bank guarantee from Family Bank as security and that a grant of orders of stay of execution will prejudice the Respondent.
6. The Respondents opposed the application vide a Replying Affidavit sworn by Stanley Karanja Gichinga on 3.3.2025 wherein he deposes that the applicant’s application is frivolous, vexatious, scandalous and filed after inordinate delay, with the sole purpose of denying the 1st Respondent the opportunity to enjoy the fruits of a favourable Judgement, and to generally delay the execution process.
7. The 1st Respondent deposed that the applicant has failed to tender a plausible reason for the delay. Further that his supposed impecunity is no ground for denying him his right of enjoyment of the fruits of Judgement.
8. The 1st Respondent challenges this application on ground that the applicant has not sworn any affidavit in support of the claim that he stands to suffer any loss if stay orders are declined. Further that it is untrue that the firm of Kimondo Gachoka had ever closed it’s operations. It is the 1st Respondent’s position that the Applicant has been oscillating from Kimondo Gachoka Advocate to Kairu Mc Court Advocates and there is no anticipated end to litigation given his said conduct.
9. The 1st Respondent deposes that the Applicant has not offered to pay at least ½ of the Judgement sum. Further, that the Applicant is guilty of laches.
10. This application was canvassed by way of oral submissions.
11. Ms Mary Ongong’a submitted in line with her position as disclosed in the supporting affidavit while Mr Wamalwa R for the 1st Respondent submitted in concomitant with his client’s position as per his replying affidavit and grounds of opposition.
ANALYSIS AND DETERMINATION
12. The Locus classica on enlargement of time is then Nicholas Kiptoo Kariri Salat vs IEBC (2014) eKLR where the court set out the principles to be considered in such an application as being the following.
a. Extension of time was not a right of a party. It was an equitable remedy that was only available to a deserving party at the discretion of the court;
b. A party who sought extension of time had the burden of laying a basis for it to the satisfaction of the court;
c. Whether the court ought to exercise the discretion to extend time, was a consideration to be made on a case-to-case basis;
d. Whether there was a reasonable reason for the delay, which ought to be explained to the satisfaction of the court;
e. Whether there would be any prejudice suffered by the respondents if the extension was granted;
f. Whether the application had been brought without undue delay; and;
g. Whether in certain cases, like election petitions, public interest ought to be a consideration for extending time.
13. As earlier on observed, the Applicant did not swear the affidavit in support of this application. No authority was annexed to demonstrate that he had authorized MS Mary Ongong’a to swear the supporting affidavit. The case belongs to the litigant and as such an advocate has to obtain his/her instruction from the client. I cannot belabour that point that Ms Ongong’a seems to have been acting on instructions of Ms Directline Assurance Company Limited and not that of Applicant. It is not known whether the Applicant is even aware of the existence of this application. No evidence of risk of suffering any loss has been adduced by the applicant as Ms Ongong’a cannot speak for the appellant in that regard. Further the Applicant has not offered any security and the delay in moving this court expeditiously has not been satisfactorily explained. I agree with the respondent that this suit is not a declatory one and the leadership wrangles within Messr Directline Assurance Company Limited have no nexus with the Applicant’s indolence in lodging an appeal within the limitation period or with making this application at the earliest opportunity.
14. It is also noteworthy that this application is vitiated by material falsehood; that the firm of Kimondo Gachoka had ceased its operation. The averments made by Ms Mary Ongong’a to that effect clearly demonstrated that there is a thin line or none at all save for the corporate identities between Messr Directline Assurance Co. Ltd and the law firm of Kimondo Gachoka Advocates. The Respondent who has a Judgement in his favour ought not suffer prejudice due to the inhouse wrangles of Messr Directline Assurance Co. Ltd and its apparent twin law firm of Kimondo Gachoka & Co. Advocates.
15. I have perused the draft memorandum of appeal and it cannot be said that the intended appeal is hopeless although at this stage it is not open for me to interrogate its viability.
16. Upon analyzing the facts obtained herein, I am not inclined to grant leave. This application is thus dismissed with costs to the respondent assess at Ksh 15,000/-.
17. This file is marked as closed.
Delivered, signed, and dated at Bungoma this 17th day of December, 2025.
MWANAISHA S. SHARIFF
JUDGE
IN THE HIGH COURT OF KENYA AT BUNGOMA
HCC MISC NO. E011 OF 2025
JOHN KIPLAGAT KALUM…………………..……………APPLICANT
VERSUS
STANLEY KARANJA GICHINGA………….……..1ST RESPONDENT
AMM ENGINEERING……………………………..2ND RESPONDENT
CAR HOUSE LTD……………………………………3RD RESPONDENT
RULING
1. Vide a notice of motion dated 12.1.2025 supported by the affidavit sworn on even date by Mary Ongong’a the Applicant and brought under the provisions of section 79 9, 1A and 3 A of the Civil Procedure Act Cap 21 Laws of Kenya and orders 42 Rule 6, Order 51 Rule 1, Order 22 Rule 22, Section 5 (b) of the Insurance (Motor Vehicle Third Party Risks) Act CAP 405 Laws of Kenya and article 159 of the Constitution of Kenya, the Applicant John Kiplagat Kalvar approached this court craving for the following orders:-
i. Spent
ii. THAT this Honourable court be pleased to grant leave to the Applicant to file an appeal out of time from the judgement and decree of the Honourable court delivered on 4/10/2024.
iii. Spent
iv. THAT this Honourable Court be pleased to grant an order for stay of execution of the judgement and decree dated 4/10/2024 for Kshs. 370,550/- together with costs and interests in Bungoma CMCC No. E292 of 2022 pending the hearing and determination of the intended appeal.
2. It is instructive to note that the supporting affidavit was sworn by an Advocate from the law firm of Kimondo Gachoka & Co Advocates and not the Applicant himself. It is deposed by Mary Ongong’a that upon delivery of Judgement by the trial court in Bungoma CMCC No. E 292 of 2022 on 4.10.2024, the law firm wrote a letter dated 8.10.2024 to the Director of Claims of Messr Directline Assurance Company Limited, the Applicant’s Insurer informing it of the Judgement and that it was not until the 20.11.2024 the law firm got a response which instructed it to lodge an appeal.
3. Ms Mary Ngong’a further deposes that the delay in communication was due to leadership wrangles among the directors of Messr Directline Assurance Company Limited and that the law firm of Kimondo Gachoka only resumed operations after a ruling in Milimani HCA E328 of 2024 and that at that time the limitation period of 30 days for lodging an appeal had lapsed.
4. It is deponed that the intended appeal has a high probability of success and that execution is imminent and that unless stay orders are granted the Applicant and Messr Directline Assurance Company Ltd stand the risk of suffering substantial loss and irrecoverable loss.
5. It is further deposed that MS Directline Assurance Co Ltd is ready and willing to deposit a bank guarantee from Family Bank as security and that a grant of orders of stay of execution will prejudice the Respondent.
6. The Respondents opposed the application vide a Replying Affidavit sworn by Stanley Karanja Gichinga on 3.3.2025 wherein he deposes that the applicant’s application is frivolous, vexatious, scandalous and filed after inordinate delay, with the sole purpose of denying the 1st Respondent the opportunity to enjoy the fruits of a favourable Judgement, and to generally delay the execution process.
7. The 1st Respondent deposed that the applicant has failed to tender a plausible reason for the delay. Further that his supposed impecunity is no ground for denying him his right of enjoyment of the fruits of Judgement.
8. The 1st Respondent challenges this application on ground that the applicant has not sworn any affidavit in support of the claim that he stands to suffer any loss if stay orders are declined. Further that it is untrue that the firm of Kimondo Gachoka had ever closed it’s operations. It is the 1st Respondent’s position that the Applicant has been oscillating from Kimondo Gachoka Advocate to Kairu Mc Court Advocates and there is no anticipated end to litigation given his said conduct.
9. The 1st Respondent deposes that the Applicant has not offered to pay at least ½ of the Judgement sum. Further, that the Applicant is guilty of laches.
10. This application was canvassed by way of oral submissions.
11. Ms Mary Ongong’a submitted in line with her position as disclosed in the supporting affidavit while Mr Wamalwa R for the 1st Respondent submitted in concomitant with his client’s position as per his replying affidavit and grounds of opposition.
ANALYSIS AND DETERMINATION
12. The Locus classica on enlargement of time is then Nicholas Kiptoo Kariri Salat vs IEBC (2014) eKLR where the court set out the principles to be considered in such an application as being the following.
a. Extension of time was not a right of a party. It was an equitable remedy that was only available to a deserving party at the discretion of the court;
b. A party who sought extension of time had the burden of laying a basis for it to the satisfaction of the court;
c. Whether the court ought to exercise the discretion to extend time, was a consideration to be made on a case-to-case basis;
d. Whether there was a reasonable reason for the delay, which ought to be explained to the satisfaction of the court;
e. Whether there would be any prejudice suffered by the respondents if the extension was granted;
f. Whether the application had been brought without undue delay; and;
g. Whether in certain cases, like election petitions, public interest ought to be a consideration for extending time.
13. As earlier on observed, the Applicant did not swear the affidavit in support of this application. No authority was annexed to demonstrate that he had authorized MS Mary Ongong’a to swear the supporting affidavit. The case belongs to the litigant and as such an advocate has to obtain his/her instruction from the client. I cannot belabour that point that Ms Ongong’a seems to have been acting on instructions of Ms Directline Assurance Company Limited and not that of Applicant. It is not known whether the Applicant is even aware of the existence of this application. No evidence of risk of suffering any loss has been adduced by the applicant as Ms Ongong’a cannot speak for the appellant in that regard. Further the Applicant has not offered any security and the delay in moving this court expeditiously has not been satisfactorily explained. I agree with the respondent that this suit is not a declatory one and the leadership wrangles within Messr Directline Assurance Company Limited have no nexus with the Applicant’s indolence in lodging an appeal within the limitation period or with making this application at the earliest opportunity.
14. It is also noteworthy that this application is vitiated by material falsehood; that the firm of Kimondo Gachoka had ceased its operation. The averments made by Ms Mary Ongong’a to that effect clearly demonstrated that there is a thin line or none at all save for the corporate identities between Messr Directline Assurance Co. Ltd and the law firm of Kimondo Gachoka Advocates. The Respondent who has a Judgement in his favour ought not suffer prejudice due to the inhouse wrangles of Messr Directline Assurance Co. Ltd and its apparent twin law firm of Kimondo Gachoka & Co. Advocates.
15. I have perused the draft memorandum of appeal and it cannot be said that the intended appeal is hopeless although at this stage it is not open for me to interrogate its viability.
16. Upon analyzing the facts obtained herein, I am not inclined to grant leave. This application is thus dismissed with costs to the respondent assess at Ksh 15,000/-.
17. This file is marked as closed.
Delivered, signed, and dated at Bungoma this 17th day of December, 2025.
MWANAISHA S. SHARIFF
JUDGE