1. This ruling is in respect of the applicant’s notice of motion (application) dated 15th December, 2025. Through the application, the applicant seeks leave of this court to file an appeal against the judgment of Hon. Olengo (SPM) delivered in Busia MCELC Case No. 03 of 2018 on 3rd October 2018. The applicant also seeks an order of stay of execution of the judgment and the decree emanating therefrom.
2. The application is premised on the grounds on its face and supported by the affidavit of the applicant sworn on 15th December, 2025. In particular, the application is premised on the following grounds:-
i) That the judgment of the lower court was delivered in the absence of the parties and without notice to the parties as by law required;
ii) That the applicant was prevented by illness from getting to know about the judgment;
iii) That the applicant got to know about the judgment on 25th November 2025 when he visited the court to inquire about the status of the case;
iv) That being dissatisfied with the judgment of the trial court he is desirous of filing an appeal against it;
v) That the intended appeal raises triable and arguable issues hence has high chances of succeeding;
vi) That he has requested for a certified copy of the proceedings and judgment;
vii) That unless the respondents are restrained from executing the decree issued in their favour they may execute it thereby rendering his intended appeal nugatory;
viii) That if stay is not granted and execution issues he stands to suffer irreparable loss; and
ix) That the prejudice, if any, occasioned on the respondents is compensable by award of damages.
3. In reply and opposition to the application, the 2nd respondent filed the replying affidavit he swore on 14th January 2026 in which he contends that there has been inordinate delay of over 3 months in filing the application; that the delay has not been sufficiently accounted for; that the applicant has not provided security for costs and that he stands to suffer prejudice, loss of farming income and delay in accessing the fruits of his judgment, if the orders sought are granted.
4. In the event the Court is inclined to grant the orders sought the 2nd respondent urges the Court to deposit in court or in a joint account in the names of the advocates for the parties Kshs. 1,500,000/- as security for costs.
5. In a rejoinder the applicant filed a supplementary affidavit, sworn on 11th March 2026, in which he reiterates that he was prevented from filing appeal from sickness and the fact that the judgment was delivered in the absence of the parties to the suit and without requisite notice.
6. Concerning proof of sickness the applicant has annexed to the affidavit a bundle of claim receipts from jubilee health insurance.
7. Regarding provision of security for costs the applicant avers that there is no order for costs on which it can hinge.
8. Pursuant to direction given that the application be disposed of by way of written submissions, the applicant filed submissions, dated 10th March 2026, which I have read and considered.
9. At the time of writing this ruling, submissions by the 2nd respondent were not in the court file if he filed any.
10. I have read and considered the application by the applicant and the response thereto. I have also read and considered the law and guidelines espoused in the various decided cases cited by the applicant in his submissions. I find the sole issue for the Court’s determination to be whether the applicant has made up a case for being granted the orders sought.
11. As pointed out herein above, the applicant seeks leave of this court to file an appeal out of time. He acknowledges that he delayed for 38 days in seeking leave to appeal out of time but argues that the delay, in the circumstances of this case, is not inordinate and urges this court to exercise the discretion vested in it and allow him to file the intended appeal out of time.
12. I have considered the reasons given for delay in filing the appeal being that the judgment was delivered in the absence of the parties and without notice to the parties as by law required and that the applicant was sick at the time the judgment was delivered. Whereas the reasons given can suffice for the period upto 25th November 2025, when the applicant got to know about the judgment, there is still a delay of 20 days from 25th November 2025 to 15th December 2025 when the application was filed which I find not to be properly accounted for considering that the judgment intended to be appealed from could be accessed from the Court’s CTS. Be that as it may, I have perused the judgment intended to be appealed and the draft Memorandum of Appeal and in my view the judgment raises triable issues of law, which the applicant ought to be given an opportunity to challenge by way of appeal.
13. As to whether the applicant has made up a case for being granted stay of execution of the judgment and decree of the lower court pending the hearing and determination of the appeal, the subject matter of the intended appeal being land, I am satisfied that unless an order of stay of execution is granted pending the hearing and determination of the appeal, the respondents may deal with the suit property in a manner prejudicial to the applicant’s interest therein thereby occasioning him irreparable loss.
14. Although the applicant has neither offered security nor demonstrated willingness to provide security for due performance of such decree or order as may ultimately be binding on him , this court has power to make such orders as the justice of the situation demands. Security for due performance of such decree or order as may ultimately be binding on the applicant being a legal imperative, the applicant cannot run away from it by arguing that there is no order for costs upon which it can hinge.
15. The upshot of the foregoing is that I find the application dated 15th December 2025 to be merited and allow it in terms of prayer 2. I also allow prayer 4 on condition that the applicant shall within 21 days from the date of delivery of this ruling, deposit Kshs. 150,000/- in an interest earning account to be opened in the joint names of the applicant and the 2nd respondent’s advocate as security for costs. If the applicant does not comply with the order for security of costs within the time herein given, the prayer for stay shall be deemed to have been denied, at the lapse of that time.
16. Costs of the application shall abide the outcome of the intended appeal.
17. Orders accordingly.
Dated, signed and delivered Virtually at Busia this 22nd day of May, 2026.
ln the presence of;-
N/A for the Applicant
Mr Onyango h/b for Mr Bwire for the Respondent
Court Assistant: Tracy