1. The Applicant filed Notice of Motion dated 24th February 2025 seeking the following orders:
1) Spent.
2) THAT the firm of Karanja Maina & Co. Advocates be granted leave to come on record for the Appellants.
3) THAT the Appellants be granted leave to file a Memorandum of Appeal out of time and the attached draft Memorandum of Appeal be deemed as properly filed.
4) THAT the Honourable Court be pleased to grant a stay of execution of the Decree dated 13th September 2023 issued in Nyeri Chief Magistrate's Court, Environment and Land Case No. E008 of 2023, pending the hearing and determination of this application.
5) THAT costs of this Application are to be borne by the Respondent.
2. The 6th Applicant swore an affidavit in support of the application with the authority to swear the affidavit on behalf of the other applicants. The Applicants are apprehensive of the risk of eviction at any moment, as they were served with a Decree dated 13th September 2023, while never having participated in the proceedings before the trial court.
3. The Applicants contend that it is against the tenets of natural justice for one to be condemned unheard. They claim that they were never served with either the stipulated eviction notice, the summons to enter appearance or the pleadings in the trial court. They state that the proposed eviction is in contravention of Section 152E of the Land Act No.6 of 2012.
4. The Applicants also contend that they were never served with the formal proof notice or the Judgment Notice in contravention of Order 10 of the Civil Procedure Rules. It is thus their prayers that the orders sought therein be allowed in the interest of justice.
The Respondent’s replying affidavit.
5. The Respondent swore an affidavit in response to the instant application on 18th July 2025. She deposed that the application is aimed at forestalling execution of the Decree issued by the trial Court and that the application is an afterthought, frivolous, mischievous and inconsistent with the rules of procedure.
6. The Respondent claims that the Applicants were properly served with the pleadings, and they were aware of the proceedings before the trial court, as well as the delivery of the judgment on 13th September 2023. The Respondent annexed a copy of the Memorandum of Appearance filed by the Applicants on 3rd April 2023.
7. Further, the Respondent highlighted that 1 year and 5 months lapsed between the delivery of the trial court judgment on 13th September 2023 and filing the current application. The delay is inordinate, and the reasons the Applicants have given for the delay are insufficient.
8. In addition to this, the Respondent feels that the Applicants have not demonstrated any substantial loss that they will suffer if execution is not stayed and that the Applicants are trespassers with no predictable rights to the suit properties.
9. Further, the Applicants have not demonstrated readiness to deposit security for due performance of the Decree, nor demonstrated how execution of the Decree will render the appeal nugatory. She states that the annexed draft Memorandum of Appeal does not raise any arguable grounds of appeal.
10. The Respondent stated that she stands to be greatly prejudiced if the orders sought are granted, as she will not only be denied the fruits of her favourable judgment, but also her rights as the proprietor of the suit parcels of land are threatened by the Applicant's continued occupation of the land thereon.
Applicants’ written submissions
11. Counsel for the Applicants filed written submissions reiterating the contents of the application and the supporting affidavit. Counsel relied on Sections 79G and 95 of the Civil Procedure Act on the provisions to admit an appeal out of time. They submit that the order for eviction issued by the Trial Court to remove the Applicants from the suit land would render them homeless, considering that it is a place they have developed and brought up their children.
12. They submitted that the Decree was served upon the Applicants on 20th February 2025, after a delay of one and a half years, stating that the Respondent should have served them earlier if indeed they wanted the Appellants out of the suit property.
13. Counsel submits that from the proceedings and the replying affidavit of the Respondent, the request for interlocutory judgment dated 22nd May 2023 was never served upon the Applicants. The cases of County Executive of Kisumu v. County Government of Kisumu & 8 others Civil Application Number 3 of 2016 and the case of Glory Outreach Ministry(Suing through its Trustees Besnon Ekeno Erkkuwan) v. Lojuk & 4 others(2023)eKLR were cited and relied upon by Counsel for the Applicants.
14. Counsel submits that the Applicants were not aware that a suit wasfiled against them. They claim that the application is made in good faith by instructing their advocate to file this application as soon as they were served with the Decree, unlike the Respondent, who sat on the same for a period of more than one year before serving it on them. Counsel relied on the authority of Maclean & another v. Kiago & another(2025)KEHC 3572(KLR) in urging the court to exercise discretion in favour of the Applicants.
15. They submit that the Respondent will not suffer substantial loss if the application herein is allowed, and that it is in fact the Applicants who will suffer substantial loss if a stay is not granted, as they will have nowhere to call home and relied on the case of Mukuma vs. Abuoga(1988)KLR 645 and James Wangalwa & Another vs. Agnes Naliaka Cheseto(2012)eKLR on this issue.
16. Submitting on the discretionary power to grant stay of execution, Counsel quoted Order 42 rule 6(1)and (2) of the Civil Procedure Rules and the case of Muchiri vs. Rutere(2023)KEELC 22377 KLR. It is the Applicant's submission that granting a stay of execution would not cause substantial loss to the Respondent, relying on the case of Ena Investment Limited vs. Bernard Ochau Mose & 2 others(2022)eKLR and RWW vs. EKW(2019) eKLR.
17. They submit that they are ready to abide by any conditions the Court may impose as security for grant of the orders sought.
The Respondent’s written submissions
18. Counsel for the Respondent submits that the grant of leave to file a Memorandum of Appeal out of time is not a right, but an exercise of the Court’s discretion. The principles that guide the exercise of this discretion were outlined in the case of Leo Sila Mutiso v. Rose Hellen Wangari Mwangi, which was cited with approval by the Court of Appeal in the case of Joseph Kaberia Arimba vs. Douglas Bundi Kirimi(2020)KECA363(KLR) in summary as the length of the delay, the reason for the delay, the chances of the appeal succeeding if the application and the degree of prejudice to the respondent if the application is granted.
19. Counsel submitted that there was undue delay in filing the present application of approximately 17 months between the delivery of the judgment and the institution of the present application. They rely on the authority of Emily Mosonik v. Johnstone Mariandany(2024)KECA 264(KLR).
20. The Respondent submitted that the Applicants were not candid with their claim that they were unaware of the proceedings before the Trial Court, as they instructed an advocate to enter an appearance on their behalf, but did not do anything more. Counsel cited the case of Mwaniki Gachuba Advocates v. Hatari Security Guards Ltd(2024)KECA 680(KLR).
21. It was further submitted that the Appeal is not arguable, as the Memorandum of Appeal sets out four out of five grounds of appeal, which relate to their lack of participation in the trial. With regard to the remaining ground of appeal on the eviction being non-compliant with Section 152E of the Land Registration Act, they submit that the said provision does not exist in the Act.
22. The Respondent submits that she stands to suffer prejudice if the extension is granted, as she will be denied the fruits of her judgment.
23. Counsel cited Order 42 rule 6 of the Civil Procedure Rules on the prayer for stay of execution, expounding on the three principles for the grant of stay. It was submitted that no substantial loss would be suffered if stay was denied since execution would not remove the substratum of the intended appeal, as there is no risk of disposition or alienation of the parcel of land upon the defendants’ eviction.
24. Regarding security for the due performance of the decree, it is submitted that the Applicants have not proposed to give security for the performance of the Decree nor expressed their willingness to abide by the conditions that this Court would set for stay. They cited the case of Jonathan Tuitoek v. Simon Kipsang Kiberut(2025)KEELC 1235(KLR).
25. The Respondent’s submission is that since all three conditions for the grant of stay of execution have yet to be satisfied by the applicants, they urged the Court to decline to exercise its discretion in the Applicant’s favour and prayed that the Court dismiss the instant application.
Analysis and Determination
26. Having considered the instant application dated 28th August 2024, the replying affidavit and the rival submissions, the Court is of the view that the following issues arise for determination;
1) Whether the Court ought to grant the Applicants extension of time to file a Memorandum of Appeal.
2) Whether the Court ought to grant the Applicant a stay of the Trial Court decision delivered on 13th September 2024 pending hearing of the intended appeal.
Whether the Court ought to grant the Applicants extension of time to file a Memorandum of Appeal.
27. The Trial Court judgment was delivered on 13th September 2023 in favour of the Plaintiff, who is the Respondent herein. The Decree was issued on the 26th of September 2023. The Applicants state that they were only served with the Decree on 20th February 2025 and that they were unaware of the Court proceedings before the Trial Court.
28. On the other hand, the Respondent contended that the Applicants were well aware of the ongoing proceedings before the Magistrates’ Court and instructed Advocates to enter an appearance on their behalf. The Respondent annexed the Memorandum of Appearance entered on behalf of the Defendants by the firm of Chege Kibathi & Company Advocates LLP, dated 31st March 2023. The matter, however, proceeded as an undefended matter and judgment was rendered in the Applicants' absence.
29. Section 79G of the Civil Procedure Act, CAP 21, Laws of Kenya, provides that the period allowed for filing an appeal from a subordinate court to the High Court is 30 days. The provision states as follows:
“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, excluding from such period any time which the lower court may certify as having been requisite for the 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 a good and sufficient cause for not filing the appeal in time”
30. Section 95 of the Civil Procedure Act provides that:
“Where any period is fixed or granted by the court for the doing of any act prescribed or allowed by this Act, the court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired.”
31. The Court of Appeal in the case of Leo Sila Mutiso v Hellen Wangari Mwangi [1999] 2 EA 231 held as follows:
“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.”
32. In the case of Aviation Cargo Support Limited v St. Mark Freight Services Limited [2014] eKLR, the Court of Appeal held that:
“The order whether or not to grant extension of time or leave to file and serve record of appeal out of time is discretionary. Such discretion is exercised judicially with a view to doing justice. Each case depends on its own merit. For the Court to exercise its discretion in favour of an applicant, the latter must demonstrate to the Court that the delay in lodging the record of appeal is not inordinate and where it is inordinate the applicant must give plausible explanation to the satisfaction of the Court why it occurred and what steps the applicant took to ensure that it came to Court as soon as was practicable. In the normal vicissitudes of life, deadlines will be missed even by those who are knowledgeable and zealous. The Courts are not blind to this fact. When this happens, the reason why it occurred should be explained satisfactorily, including the steps taken to ensure compliance with the law by coming to Court to seek extension of time or leave to file out of time."
33. The Court has considered the above-cited provisions of the law and the court decisions. In an application for extension of time to file an appeal, the court ought to take into account several factors. In the present case, the length of delay in filing the application for extension of time was around 1 year and 5 months. The reason given by the Applicants for the delay in filing the application is that they were unaware of the proceedings. However, as evidenced by the Respondent, the Applicants instructed the firm of Chege Kibathis Advocates who entered appearance on their behalf; they were aware of the suit, but did not participate for reason not explained to the Court. The reason given for not participating in the proceedings is in the Court’s view untrue.
34. The Court of Appeal, on a reference from the ruling of a single Judge in Aviation Cargo Support Group Ltd v St. Mark Freight Services Limited [2015] KECA 688 (KLR), confirmed dismissal of an application for extension of time where a delay of six months was found to be inordinate where no explanation was given. The Court stated that;
“ The learned Judge was of the view that even where the intended appeal may be meritorious, if the delay is too inordinate and has not been explained, leave ought not to be granted. The learned Judge appreciated that the court in interpreting its rules should lean in favour of determining appeals on merit and “thus facilitate access to justice by ensuring that deserving litigants are not shut out.” The learned Judge was also alive to the overriding objective of the Appellate Jurisdiction Act, Cap 9 Laws of Kenya, as codified in Section 3B(1) of the said Act.
Having considered all those principles, the learned Judge still came to the conclusion that he would not exercise his discretion in favour of the applicant.”
35. Lady Justice Okwany in International Air Transport Association & Another Vs. Roskar Travel Limited & 3 Others (Civil Case E457 of 2020) (2022)KEHC 200 (KLR) (Commercial and Tax) (17th March 2022) (Ruling) stated as follows on the duty of a litigant when he has an advocate:-
“In Savings and Loans Limited Vs. Susan Wanjiru Muritu, Nairobi (Milimani) HCCS No.397 of 2002, Kimaru, J expressed himself as follows: “A litigant has a duty to pursue the prosecution of his or her case. The court cannot set aside dismissal of a suit on the sole ground of a mistake by counsel of the litigant on account of such advocate’s failure to attend court. It is the duty of the litigant to constantly check with her advocate the progress of her case. In the present case, it is apparent that if the defendant had been a diligent litigant, she would have been aware of the dismissal of her previous application for want of prosecution soon after the said dismissal. For the defendant to be prompted to action by the plaintiff’s determination to execute the decree issued in its favour is an indictment on the defendant. She had been indolent, and taking into account her last conduct in the prosecution of the application to set aside the default judgment that was dismissed by the court, it would be a travesty of justice for the Court to exercise its discretion in favour of such a litigant (emphasis added)”.
36. The Court agrees with the above observations. First, the Court notes that the Applicants were not candid with the Court. They did not admit being aware of the suit and having an advocate on record. Instead, they statedT without batting an eyelid that they were unaware of the suit and that they only became aware of it on 20th February 2025, while the Memorandum of Appearance by their Advocate, Chege Kibathi Advocate, is dated 31st March 2023. The argument by Counsel for the Applicant concerning this issue is quite interesting since they do not categorically deny their clients instructing the said Advocates; instead, they call upon the Respondent to substantiate that issue. This is notwithstanding the fact that the Memorandum of Appearance was attached to the Replying affidavit. Counsel for the Applicants further argues that if the said advocates were
acting on their clients' behalf, they would have filed all necessary documents in defence of the suit. In the Court's view, the Applicants are the ones who should be explaining to the Court why, having instructed the Advocates, the said Advocates did not file any documents in defence and did not attend court on their behalf. The Applicants should also explain why they did not follow up to ensure that they were being properly represented. It was the duty of the Applicants to constantly check with her advocate the progress of their case. In the present case, it is apparent that if the Applicants had been diligent litigants they would have known that their Advocates did not take action to defend the suit on their behalf.
37. From the foregoing, the Court is satisfied that the delay in filing the application for extension of time is inordinate, taking into account the circumstances of this case and the fact that the Applicants were represented by Counsel. The Court further finds that the Applicants have not shown that they had a good and sufficient cause for not filing the appeal in time. The Court declines to exercise its discretion in favour of the Applicants, and they are not deserving of an order of extension of time to file the Memorandum of Appeal.
38. Having found as above, the Court finds no reason to delve into, and decide on the 2nd issue of whether to grant an order of stay of execution of the Trial Court decision pending.
39. The upshot of the above is that the Notice of Motion dated 24th February 2025 lacks merit and it is dismissed with costs to the Respondent.
Dated, Signed and Delivered via Microsoft Teams at Nairobi, this 27th Dayof January 2026
In the presence of
Janice Kendi: Court Assistant
Karanja for the Applicants
M/s Wangechi for the Respondent