'RULING
1. The applicant filed the application dated 19.9.24 under Section IA, 1B, 3 and 3A of the Civil Procedure Act Cap 21 Laws of Kenya, Order 42 Rule 6. Order 51 rules I and 15 of the Civil Procedure Rules 2010 and all enabling provisions ofthe Law seeking the following orders :
TIIAT that this Honourable Court be pleased to order :
a.SPENT ,
b. SPENT.
c. this Court be pleased to extend the time within which the Respondent should lodge its Notice of Appeal to signify its intention to appeal from the judgment of this I Honourable Court delivered on 20th March 2024.
d. costs be provided for .
2. The application is supported by the annexed AfT1davit of GEOFFREY MAKANA ASANYO and grounds that :
i. On 8th December 2023 this Honourable court delivered a ruling dismissing the Respondent''s preliminary objection and application dated 7th November 2022.
ii. TIIAT upon delivery of the ruling the court directed the Appellants to file and serve their written submissions within 28 days and the Respondent to file and serve its submissions within 28 days and reserved the Judgment for 27th March 2024.
iii. THAT the judgment was not delivered on 27th March 2024 as scheduled.
iv. ''I''llAT on Tuesday the 17th day of September 2024, the Respondent''s advocates received a message indicating that this case had been updated to judgment delivered and case closed.
v. TIIAT the Respondent''s advocate then visited the Kenya Law reports website and retrieved a judgement that was delivered on 20th March 2024 without notice to the parties.
vi. ''I''HAT the summary of the Judgement is as follows: -
a. ‘’The appeal is allowed in its entirety costs of Ksh. 350,000 to the Appellants.
b. For the avoidance of doubt the application dated 7/10/2022 in the lower Court is dismissed with costs.
2. GEOFFREY MA KANA ASANYO the managing director of the Respondent Company is the deponent of the supporting affidavit in which he told this court that it is within my own knowledge that on 8th December 2023 this honourable court delivered a ruling dismissing the Respondent''s preliminary objection and application dated 7th November 2022.Further it is within my own knowledge that upon delivery of the ruling the court directed the Appellants to file the Judgment herein was scheduled for 27.3.24 but was delivered without notice and their advocate on record Mr Konosi learnt of the same on 17.9.24 when he received as message that the court had updated the Judgment in the System. He annexed a screen shot message of the system ‘’GMA 2’’Also that their said counsel later visited the Kenya Law report website and retrieved a judgement that was delivered on 20th March 2024 without notice to the parties.( Annexed copy of Judgment "GMA3" ).
3. He also told the court that they were aggrieved by the said Judgment and wish to appeal and hence they are seeking leave herein to file the same out of time as the appeal window has expired (as per Annexture "GMA4" . He said he believed that the applicant has an arguable appeal and that it is willing to offer any security which the court may order for the satisfaction of the decree that may ultimately be binding upon it. He said that Appellants have threatened to execute the decree herein to the detriment of the Respondent/Applicant who is likely to suffer substantial loss as on 18th September 2024, officers of the 1 st Appellant visited the suit premises and threated to disconnect power to the entire building purportedly on the strength of the said judgment. He said that the building houses several tenants among them Banks, Law firms and Savings and Cooperative Societies who stand to suffer substantial loss if the I st appellant disconnects power to the said building.
4. The respondent deponed that the applicant has not explained the delay of 6 months in filing the application.. Also that this court lacks jurisdiction to deal will Application ought to have been filed in the Court of Appeal and not in the trial court since the trial Court became functus officio upon delivery of its judgment on 20.03.2024. Also that application is an afterthought, an abuse and misuse of the judicial process; and that the Appellants will suffer great prejudice if an extension of filing of the appeal is granted or the application is allowed. Further that the the Applicant has not illustrated any chances of success of the intended Appeal as no draft of the Applicant has not illustrated any chances of success of the intended Appeal. The Applicant has not annexed any Draft Memorandum of Appeal and Notice of Appeal have been annexed an so an arguable intended appeal has not been established . He deponed that if the order for stay is allowed, it would in turn result in loss of profits to the Appellant as the power bills in the land parcels situated in Kisii Municipality block 1 1 1/195 will continue to accrue and the Appellants being a state organization and public officers, will be unable to be unable to effectively effect service delivery. He stated that he advised that the application does not meet the threshold for stay pending appeal under Order 41 rule 6 of the civil procedure rules has not been met . Also that the application is a tactic to delay the execution proceedings in the lower court; and that the appeal is mischievous, contemptuous and an abuse of and misuse of the judicial process. The respondent also deponed that the applicant has not demonstrated that it is ready and willingness to offer security'' for the performance of the decre.. the applicant filed further affidavit dated 2.7.25 in which Mr Asanyo denied all the allegations in the replying affidavit and said that they met the threshold for grant stay pending appeal
I have considered the application the response and the submissions . In the case of Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999] 2 EA 231, the Court of Appeal set out the foundational principles for granting an extension of time to appeal. The court held that such an application is not a right, but rather a matter of judicial discretion, to be exercised reasonably, not whimsically or out of sympathy. In exercising this discretion, the court must consider;
(i) the length of the delay.
(ii) the reason for the delay
(iii) whether the appeal has arguable merit, and
(iv) (the degree of prejudice to the opposing party.
5. On the length of delay it is not disputed that the application was mounted six months after the impugned Judgment.
6. On the reason for the delay, the applicants case is that he was not informed of the judgment date , while the respondent said the Judgment was delivered in the presence of both counsel and thus the delay has not been explained . I have perused the judgment herein and indicates it was delivered in the presence of both firms of advocates representing the parties herein parties . The application was filed 6 months after Judgment and thus the applicant’s argument that the judgment was delivered in their absence it not true . The applicant is seeking equitable orders but he is guilty of lachees . I find that the delay of 6 months is inordinate .
7. On whether the intended appeal is arguable, the applicant said it has a an arguable appeal but the respondent said that neither a notice of appeal not a draft memorandum of appeal was filed . I agree with the submissions of the respondents as no notice of appeal or memorandum of appeal have been filed herein. I find that the applicant has not shown that they have an arguable intended appeal or even that they intend to file any appeal .
8. On whether the respondent will be prejudiced if the orders sought are granted ,since the prolonged delay as not been explained . I find that the respondent will be prejudiced is the orders sought are granted as litigation must come to an end .
9. In the upshot, the application is devoid of merit and an abuse of the process of this court and a tactic to delay execution as rightly submitted by the respondent . I proceeded to dismiss it with costs to the respondent .
T.A ODERA
JUDGE
31.10.25
DELIVERED VIRTUAWLLY VIA TEAMS PLATFORM IN THE PRESENCE OF MIS NTHENGE FOR THE APPLICANT. & MR ORINA HOLDING BRIEF FOR MR KONOSI FOR THE RESPONDENT& CA KIPCHIRCHIR
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1. The applicant filed the application dated 19.9.24 under Section IA, 1B, 3 and 3A of the Civil Procedure Act Cap 21 Laws of Kenya, Order 42 Rule 6. Order 51 rules I and 15 of the Civil Procedure Rules 2010 and all enabling provisions ofthe Law seeking the following orders :
TIIAT that this Honourable Court be pleased to order :
a.SPENT ,
b. SPENT.
c. this Court be pleased to extend the time within which the Respondent should lodge its Notice of Appeal to signify its intention to appeal from the judgment of this I Honourable Court delivered on 20th March 2024.
d. costs be provided for .
2. The application is supported by the annexed AfT1davit of GEOFFREY MAKANA ASANYO and grounds that :
i. On 8th December 2023 this Honourable court delivered a ruling dismissing the Respondent''s preliminary objection and application dated 7th November 2022.
ii. TIIAT upon delivery of the ruling the court directed the Appellants to file and serve their written submissions within 28 days and the Respondent to file and serve its submissions within 28 days and reserved the Judgment for 27th March 2024.
iii. THAT the judgment was not delivered on 27th March 2024 as scheduled.
iv. ''I''llAT on Tuesday the 17th day of September 2024, the Respondent''s advocates received a message indicating that this case had been updated to judgment delivered and case closed.
v. TIIAT the Respondent''s advocate then visited the Kenya Law reports website and retrieved a judgement that was delivered on 20th March 2024 without notice to the parties.
vi. ''I''HAT the summary of the Judgement is as follows: -
a. ‘’The appeal is allowed in its entirety costs of Ksh. 350,000 to the Appellants.
b. For the avoidance of doubt the application dated 7/10/2022 in the lower Court is dismissed with costs.
2. GEOFFREY MA KANA ASANYO the managing director of the Respondent Company is the deponent of the supporting affidavit in which he told this court that it is within my own knowledge that on 8th December 2023 this honourable court delivered a ruling dismissing the Respondent''s preliminary objection and application dated 7th November 2022.Further it is within my own knowledge that upon delivery of the ruling the court directed the Appellants to file the Judgment herein was scheduled for 27.3.24 but was delivered without notice and their advocate on record Mr Konosi learnt of the same on 17.9.24 when he received as message that the court had updated the Judgment in the System. He annexed a screen shot message of the system ‘’GMA 2’’Also that their said counsel later visited the Kenya Law report website and retrieved a judgement that was delivered on 20th March 2024 without notice to the parties.( Annexed copy of Judgment "GMA3" ).
3. He also told the court that they were aggrieved by the said Judgment and wish to appeal and hence they are seeking leave herein to file the same out of time as the appeal window has expired (as per Annexture "GMA4" . He said he believed that the applicant has an arguable appeal and that it is willing to offer any security which the court may order for the satisfaction of the decree that may ultimately be binding upon it. He said that Appellants have threatened to execute the decree herein to the detriment of the Respondent/Applicant who is likely to suffer substantial loss as on 18th September 2024, officers of the 1 st Appellant visited the suit premises and threated to disconnect power to the entire building purportedly on the strength of the said judgment. He said that the building houses several tenants among them Banks, Law firms and Savings and Cooperative Societies who stand to suffer substantial loss if the I st appellant disconnects power to the said building.
4. The respondent deponed that the applicant has not explained the delay of 6 months in filing the application.. Also that this court lacks jurisdiction to deal will Application ought to have been filed in the Court of Appeal and not in the trial court since the trial Court became functus officio upon delivery of its judgment on 20.03.2024. Also that application is an afterthought, an abuse and misuse of the judicial process; and that the Appellants will suffer great prejudice if an extension of filing of the appeal is granted or the application is allowed. Further that the the Applicant has not illustrated any chances of success of the intended Appeal as no draft of the Applicant has not illustrated any chances of success of the intended Appeal. The Applicant has not annexed any Draft Memorandum of Appeal and Notice of Appeal have been annexed an so an arguable intended appeal has not been established . He deponed that if the order for stay is allowed, it would in turn result in loss of profits to the Appellant as the power bills in the land parcels situated in Kisii Municipality block 1 1 1/195 will continue to accrue and the Appellants being a state organization and public officers, will be unable to be unable to effectively effect service delivery. He stated that he advised that the application does not meet the threshold for stay pending appeal under Order 41 rule 6 of the civil procedure rules has not been met . Also that the application is a tactic to delay the execution proceedings in the lower court; and that the appeal is mischievous, contemptuous and an abuse of and misuse of the judicial process. The respondent also deponed that the applicant has not demonstrated that it is ready and willingness to offer security'' for the performance of the decre.. the applicant filed further affidavit dated 2.7.25 in which Mr Asanyo denied all the allegations in the replying affidavit and said that they met the threshold for grant stay pending appeal
I have considered the application the response and the submissions . In the case of Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999] 2 EA 231, the Court of Appeal set out the foundational principles for granting an extension of time to appeal. The court held that such an application is not a right, but rather a matter of judicial discretion, to be exercised reasonably, not whimsically or out of sympathy. In exercising this discretion, the court must consider;
(i) the length of the delay.
(ii) the reason for the delay
(iii) whether the appeal has arguable merit, and
(iv) (the degree of prejudice to the opposing party.
5. On the length of delay it is not disputed that the application was mounted six months after the impugned Judgment.
6. On the reason for the delay, the applicants case is that he was not informed of the judgment date , while the respondent said the Judgment was delivered in the presence of both counsel and thus the delay has not been explained . I have perused the judgment herein and indicates it was delivered in the presence of both firms of advocates representing the parties herein parties . The application was filed 6 months after Judgment and thus the applicant’s argument that the judgment was delivered in their absence it not true . The applicant is seeking equitable orders but he is guilty of lachees . I find that the delay of 6 months is inordinate .
7. On whether the intended appeal is arguable, the applicant said it has a an arguable appeal but the respondent said that neither a notice of appeal not a draft memorandum of appeal was filed . I agree with the submissions of the respondents as no notice of appeal or memorandum of appeal have been filed herein. I find that the applicant has not shown that they have an arguable intended appeal or even that they intend to file any appeal .
8. On whether the respondent will be prejudiced if the orders sought are granted ,since the prolonged delay as not been explained . I find that the respondent will be prejudiced is the orders sought are granted as litigation must come to an end .
9. In the upshot, the application is devoid of merit and an abuse of the process of this court and a tactic to delay execution as rightly submitted by the respondent . I proceeded to dismiss it with costs to the respondent .
T.A ODERA
JUDGE
31.10.25
DELIVERED VIRTUAWLLY VIA TEAMS PLATFORM IN THE PRESENCE OF MIS NTHENGE FOR THE APPLICANT. & MR ORINA HOLDING BRIEF FOR MR KONOSI FOR THE RESPONDENT& CA KIPCHIRCHIR
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