1. The Appellant filed a Notice of Motion dated 17/9/2025 seeking orders for stay of execution of the judgment delivered on 4/8/2025 by Honourable A. Nyoike in Nairobi MCCOMMSU E381 of 2023 pending the hearing and determination of this appeal.
2. The application was brought under Sections 3, 3A and 3B of the Appellate Jurisdiction Act and Order 42 of the Civil Procedure Rules.
3. The basis of the application was that the impugned judgment had been entered in favour of the Respondent awarding it Kshs. 1,898,438 together with interest at court rates from 23/8/2018 and costs of the suit. The Appellant contended that it was dissatisfied with the entire judgment and had lodged an appeal with high chances of success. It averred that the trial magistrate erred in law and fact by finding that the Respondent had fully met its contractual obligations to warrant release of the retention amount, treating the Completion Certificate as sufficient proof of compliance with the warranty provisions, and failing to determine that the Respondent was in breach of the contract thereby warranting forfeiture of the retention amount.
4. The Appellant averred that unless stay orders were granted, the intended appeal would be rendered nugatory as the Respondent had already initiated steps towards extraction of the decree and commencement of execution proceedings. It further stated that it would suffer substantial loss because it had no knowledge of the Respondent’s fixed place of abode, assets or source of income and therefore had no assurance of recovering the decretal sum in the event the appeal succeeded.
5. The Appellant maintained that the application had been filed timeously and without unreasonable delay and that it was in the interests of justice and fairness that the Court grant the orders sought pending hearing and determination of the appeal. The application was supported by the affidavit of Nyaduwa N. Odongo, its Chief Legal Officer.
Respondent’s Preliminary Objection (PO) and Replying Affidavit
6. The Respondent raised a P.O dated 21/10/2025 against the instant application and Memorandum of Appeal dated 11/9/2025 on the following grounds;
“ 1.There exists no competent appeal filed against the judgement dated 4th August 2025 delivered in Nairobi MCCOMMSU No. E381 of 2024 for reason that the purported Memorandum of Appeal was filed on the 11th September 2025 which was past the 30 days statutory period of filing appeal under Section 79G of the Civil Procedure Act, whereas the last day for filing the appeal was 4th September 2025, hence the purported Memorandum of Appeal was time barred.
2.That an application for stay of execution pending appeal requires that as a condition precedent there is a competent appeal filed and without any competent appeal existing herein, then the application dated 17th September 2025 is fatally defective rendering the entire proceedings herein null and void ab initio which ought to be dismissed.”
7. Based on the foregoing grounds, the Respondent prayed to have the instant application dismissed and the appeal struck off for being null and void ab initio.
8. The Respondent also filed a Replying Affidavit sworn on 21/10/2025 by Samuel Kangethe Mburu, its Chief Executive Officer, in opposition to the instant application.
9. The Respondent contended that the Appellant’s application was bad in law and devoid of merit as there was no competent appeal filed against the judgment delivered on 4/8/2025 in Nairobi MCCOMMSU No. E381 of 2024. It was averred that the Memorandum of Appeal had been filed on 11/9/2025 outside the statutory 30-day period for filing appeals, the deadline having lapsed on 4/9/2025. The Respondent therefore maintained that in the absence of a competent appeal, the application for stay of execution was fatally defective and liable to dismissal.
10. The Respondent also averred that the Appellant had failed to demonstrate any sufficient basis to deny it the fruits of its judgment and that mere apprehension regarding recovery of the decretal sum did not constitute proof that the Respondent would be unable to refund the amount in the event the appeal succeeded. It was further deponed that the Appellant had concealed the fact that it already owed the Respondent Kshs. 3,199,782.20 together with an additional Kshs. 24,498,993 arising from another Judgment delivered on 20/5/2025 in Nairobi HCCC No. E390 of 2020, which the Appellant had not appealed against. The Respondent asserted that the outstanding sums demonstrated its financial ability to refund the decretal amount if required.
11. The Respondent maintained that it was capable of refunding the decretal sum in the unlikely event the appeal succeeded and urged the Court to dismiss the Appellant’s application with costs for being incompetent, lacking merit and being bad in law.
Appellant’s Supplementary Affidavit
12. The Appellant filed a Supplementary Affidavit sworn by Nyaduwa N. Odongo, the Ag. Chief Legal Officer (Litigation & Compliance), in response to the Respondent’s Replying Affidavit.
13. The deponent averred that the appeal had been filed within the timelines prescribed under the law as the 30-day period for filing an appeal runs from the date of issuance of the decree and not the date of judgment. It was deponed that the decree from the subordinate court was issued on 24/10/2025 whereas the appeal had been filed on 11/9/2025, which was within the statutory timelines. A copy of the decree was annexed in support thereof.
14. The Appellant further disputed the averments made by the Respondent regarding the judgment in HCC E390 of 2020. It was averred that the issue relating to payments arising from the said judgment had not crystallised since the Respondent had not complied with paragraph 67(b) of the impugned judgment. The Appellant stated that the matter had been scheduled for mention on 3/12/2025 for directions regarding compliance with the judgment.
15. The deponent further denied that the Appellant owed the Respondent an additional sum of Kshs. 24,498,993 arising from HCC E390 of 2020, contending that no such order or direction existed in the said judgment.
16. The Appellant also averred that pursuant to the orders of the Court issued on 21/10/2025, it was willing to deposit the entire decretal sum in Court and therefore no prejudice would be occasioned to the Respondent if the application for stay was allowed.
Analysis and determination
17. The Appellant filed written submissions dated 5/11/2025, while the Respondent filed submissions dated 26/1/2026. The court has considered the same together with the pleadings and evidence filed by the parties.
18. The first issue for determination is whether the instant appeal was filed within the statutory timelines.
Section 79G of the Civil Procedure Act provides:
“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 good and sufficient cause for not filing the appeal in time.”
19. In this case, the impugned judgment was delivered on 4/8/2025, and the decree thereto was issued on 24/10/2025. The decree was produced as annexure ‘NN01’ in the Supplementary Affidavit of Nyaduwa N.Odongo. The instant appeal was lodged vide a Memorandum of Appeal dated 11/9/2025.
20. The Appellant contended that time for filing the appeal ought to run from 24/10/2025, being the date when the decree was issued.
21. Section 2 of the Civil Procedure Act provides that:
“Provided that, for the purposes of appeal, ‘decree’ includes judgment, and a judgment shall be appealable notwithstanding the fact that a formal decree in pursuance of such judgment may not have been drawn up or may not be capable of being drawn up.”
22. Section 2 of the Civil Procedure Rules makes it clear that a ‘decree’ includes a judgement and that a judgement is appealable even before a decree is issued. It follows that for purposes of an appeal; the operative date is the date of judgment and not the subsequent date when a formal decree is extracted or issued.
23. The Appellant was therefore required to lodge an appeal 30 days from the date of the lower court’s judgment, which was delivered on 4/8/2025. However, the Memorandum of Appeal was filed on 11/9/2025 outside of the 30-day window, thereby rendering the appeal incompetent.
24. It would have been prudent for the Appellant to file a formal application for enlargement of time to file the appeal, but it did not do so.
25. The Court of Appeal in Abubaker Mohamed Al-Amin v Firdaus Siwa Somo held:
“However, the learned Judge was correct in holding that in the absence of the appeal there was nothing upon which the stay orders sought under Order 42 of the Civil Procedure Rules could be anchored.”
26. In the circumstances, the Memorandum of Appeal having been filed out of time without leave of the court, there is no competent appeal before the court capable of sustaining the application for stay of execution.
27. The application is therefore fatally defective and suffers the fate of being struck out with costs granted to the respondent.
28. It is so ordered.
DATED, SIGNED, AND DELIVERED AT NAIROBI
THIS 21ST DAY OF MAY 2026
HON. MR. JUSTICE MOSES ADO
Judge of the High Court
In the Presence of:
Moses C/A
Odongo………………for the Applicant
Thuo……………for the Respondent
2. The application was brought under Sections 3, 3A and 3B of the Appellate Jurisdiction Act and Order 42 of the Civil Procedure Rules.
3. The basis of the application was that the impugned judgment had been entered in favour of the Respondent awarding it Kshs. 1,898,438 together with interest at court rates from 23/8/2018 and costs of the suit. The Appellant contended that it was dissatisfied with the entire judgment and had lodged an appeal with high chances of success. It averred that the trial magistrate erred in law and fact by finding that the Respondent had fully met its contractual obligations to warrant release of the retention amount, treating the Completion Certificate as sufficient proof of compliance with the warranty provisions, and failing to determine that the Respondent was in breach of the contract thereby warranting forfeiture of the retention amount.
4. The Appellant averred that unless stay orders were granted, the intended appeal would be rendered nugatory as the Respondent had already initiated steps towards extraction of the decree and commencement of execution proceedings. It further stated that it would suffer substantial loss because it had no knowledge of the Respondent’s fixed place of abode, assets or source of income and therefore had no assurance of recovering the decretal sum in the event the appeal succeeded.
5. The Appellant maintained that the application had been filed timeously and without unreasonable delay and that it was in the interests of justice and fairness that the Court grant the orders sought pending hearing and determination of the appeal. The application was supported by the affidavit of Nyaduwa N. Odongo, its Chief Legal Officer.
Respondent’s Preliminary Objection (PO) and Replying Affidavit
6. The Respondent raised a P.O dated 21/10/2025 against the instant application and Memorandum of Appeal dated 11/9/2025 on the following grounds;
“ 1.There exists no competent appeal filed against the judgement dated 4th August 2025 delivered in Nairobi MCCOMMSU No. E381 of 2024 for reason that the purported Memorandum of Appeal was filed on the 11th September 2025 which was past the 30 days statutory period of filing appeal under Section 79G of the Civil Procedure Act, whereas the last day for filing the appeal was 4th September 2025, hence the purported Memorandum of Appeal was time barred.
2.That an application for stay of execution pending appeal requires that as a condition precedent there is a competent appeal filed and without any competent appeal existing herein, then the application dated 17th September 2025 is fatally defective rendering the entire proceedings herein null and void ab initio which ought to be dismissed.”
7. Based on the foregoing grounds, the Respondent prayed to have the instant application dismissed and the appeal struck off for being null and void ab initio.
8. The Respondent also filed a Replying Affidavit sworn on 21/10/2025 by Samuel Kangethe Mburu, its Chief Executive Officer, in opposition to the instant application.
9. The Respondent contended that the Appellant’s application was bad in law and devoid of merit as there was no competent appeal filed against the judgment delivered on 4/8/2025 in Nairobi MCCOMMSU No. E381 of 2024. It was averred that the Memorandum of Appeal had been filed on 11/9/2025 outside the statutory 30-day period for filing appeals, the deadline having lapsed on 4/9/2025. The Respondent therefore maintained that in the absence of a competent appeal, the application for stay of execution was fatally defective and liable to dismissal.
10. The Respondent also averred that the Appellant had failed to demonstrate any sufficient basis to deny it the fruits of its judgment and that mere apprehension regarding recovery of the decretal sum did not constitute proof that the Respondent would be unable to refund the amount in the event the appeal succeeded. It was further deponed that the Appellant had concealed the fact that it already owed the Respondent Kshs. 3,199,782.20 together with an additional Kshs. 24,498,993 arising from another Judgment delivered on 20/5/2025 in Nairobi HCCC No. E390 of 2020, which the Appellant had not appealed against. The Respondent asserted that the outstanding sums demonstrated its financial ability to refund the decretal amount if required.
11. The Respondent maintained that it was capable of refunding the decretal sum in the unlikely event the appeal succeeded and urged the Court to dismiss the Appellant’s application with costs for being incompetent, lacking merit and being bad in law.
Appellant’s Supplementary Affidavit
12. The Appellant filed a Supplementary Affidavit sworn by Nyaduwa N. Odongo, the Ag. Chief Legal Officer (Litigation & Compliance), in response to the Respondent’s Replying Affidavit.
13. The deponent averred that the appeal had been filed within the timelines prescribed under the law as the 30-day period for filing an appeal runs from the date of issuance of the decree and not the date of judgment. It was deponed that the decree from the subordinate court was issued on 24/10/2025 whereas the appeal had been filed on 11/9/2025, which was within the statutory timelines. A copy of the decree was annexed in support thereof.
14. The Appellant further disputed the averments made by the Respondent regarding the judgment in HCC E390 of 2020. It was averred that the issue relating to payments arising from the said judgment had not crystallised since the Respondent had not complied with paragraph 67(b) of the impugned judgment. The Appellant stated that the matter had been scheduled for mention on 3/12/2025 for directions regarding compliance with the judgment.
15. The deponent further denied that the Appellant owed the Respondent an additional sum of Kshs. 24,498,993 arising from HCC E390 of 2020, contending that no such order or direction existed in the said judgment.
16. The Appellant also averred that pursuant to the orders of the Court issued on 21/10/2025, it was willing to deposit the entire decretal sum in Court and therefore no prejudice would be occasioned to the Respondent if the application for stay was allowed.
Analysis and determination
17. The Appellant filed written submissions dated 5/11/2025, while the Respondent filed submissions dated 26/1/2026. The court has considered the same together with the pleadings and evidence filed by the parties.
18. The first issue for determination is whether the instant appeal was filed within the statutory timelines.
Section 79G of the Civil Procedure Act provides:
“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 good and sufficient cause for not filing the appeal in time.”
19. In this case, the impugned judgment was delivered on 4/8/2025, and the decree thereto was issued on 24/10/2025. The decree was produced as annexure ‘NN01’ in the Supplementary Affidavit of Nyaduwa N.Odongo. The instant appeal was lodged vide a Memorandum of Appeal dated 11/9/2025.
20. The Appellant contended that time for filing the appeal ought to run from 24/10/2025, being the date when the decree was issued.
21. Section 2 of the Civil Procedure Act provides that:
“Provided that, for the purposes of appeal, ‘decree’ includes judgment, and a judgment shall be appealable notwithstanding the fact that a formal decree in pursuance of such judgment may not have been drawn up or may not be capable of being drawn up.”
22. Section 2 of the Civil Procedure Rules makes it clear that a ‘decree’ includes a judgement and that a judgement is appealable even before a decree is issued. It follows that for purposes of an appeal; the operative date is the date of judgment and not the subsequent date when a formal decree is extracted or issued.
23. The Appellant was therefore required to lodge an appeal 30 days from the date of the lower court’s judgment, which was delivered on 4/8/2025. However, the Memorandum of Appeal was filed on 11/9/2025 outside of the 30-day window, thereby rendering the appeal incompetent.
24. It would have been prudent for the Appellant to file a formal application for enlargement of time to file the appeal, but it did not do so.
25. The Court of Appeal in Abubaker Mohamed Al-Amin v Firdaus Siwa Somo held:
“However, the learned Judge was correct in holding that in the absence of the appeal there was nothing upon which the stay orders sought under Order 42 of the Civil Procedure Rules could be anchored.”
26. In the circumstances, the Memorandum of Appeal having been filed out of time without leave of the court, there is no competent appeal before the court capable of sustaining the application for stay of execution.
27. The application is therefore fatally defective and suffers the fate of being struck out with costs granted to the respondent.
28. It is so ordered.
DATED, SIGNED, AND DELIVERED AT NAIROBI
THIS 21ST DAY OF MAY 2026
HON. MR. JUSTICE MOSES ADO
Judge of the High Court
In the Presence of:
Moses C/A
Odongo………………for the Applicant
Thuo……………for the Respondent