1. The Notice of Motion dated 28th March 2024 is brought under sections 3A, 75, 78 and 79G of the Civil Procedure Act, Order 50 Rule 6 of the Civil Procedure Rules, sections 1A, 1B and 3A of the Civil Procedure Act and Article 159(2)(d) of the Constitution. The Applicant seeks leave to file an appeal out of time against the judgment delivered in Civil Case No. E196 of 2021 at the Kericho Law Courts. She further seeks an order of stay of execution of the said judgment pending the hearing and determination of the intended appeal.
2. The Application is supported by the grounds set out on its face and the supporting affidavit sworn by Dorothy A. Odhiambo. The Applicant depones that although she was desirous of appealing against the judgment, she was unable to file the Memorandum of Appeal within the statutory period because she did not receive instructions from her client in good time. By the time the requisite instructions were received, the period prescribed for filing an appeal had already lapsed. She contends that the delay was neither deliberate nor inordinate and urges the Court to exercise its discretion in the interests of justice.
3. The Respondent opposed the Application through a replying affidavit sworn on 29th April 2024. It is contended that the Applicant has not advanced sufficient grounds to warrant the exercise of this Court's discretion, that the delay has not been satisfactorily explained and that the Application is merely intended to delay the enjoyment of the fruits of the judgment.
4. I have carefully considered the Application, the affidavits filed by the parties, the written submissions and the applicable law.
Analysis and Determination
5. The Application raises two issues for determination:
a. Whether the Applicant has established sufficient cause to warrant extension of time to lodge an appeal out of time.
b. Whether the Applicant has satisfied the conditions for grant of stay of execution pending appeal.
(a) Leave to Appeal Out of Time
6. The jurisdiction of this Court to admit an appeal out of time is donated by section 79G of the Civil Procedure Act, which provides that an appeal from a subordinate court shall be filed within thirty days from the date of the decree or order appealed against, provided that an appeal may be admitted out of time if the appellant satisfies the Court that there was good and sufficient cause for not filing the appeal within the prescribed period.
7. The discretion conferred by section 79G is judicial and must be exercised on sound legal principles. In Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR, the Supreme Court held that extension of time is not a right but an equitable remedy available only to a deserving party. The Court identified, among the relevant considerations, the length of the delay, the reason for the delay, the degree of prejudice to the respondent and whether the application has been brought without undue delay.
8. Similarly, in Paul Wanjohi Mathenge v Duncan Gichane Mathenge [2013] eKLR, the Court emphasized that in exercising its discretion, the Court should consider the explanation for the delay, the arguability of the intended appeal and the prejudice likely to be occasioned to the respondent.
9. The judgment sought to be appealed against was delivered on 24th January 2024. The statutory period for filing the appeal expired on 23rd February 2024. The present Application was filed on 28th March 2024, approximately thirty-three (33) days after the expiry of the statutory period.
10. In my view, a delay of approximately one month cannot, in the circumstances of this case, be said to be inordinate. The explanation offered is that counsel had not received instructions from the Applicant within the prescribed period. While litigants are generally expected to act diligently in safeguarding their rights, I am satisfied that the explanation tendered is reasonable and plausible. There is no evidence that the delay was deliberate or intended to obstruct the course of justice.
11. I have also considered the draft Memorandum of Appeal annexed to the Application. Without making definitive findings on its merits, I am satisfied that it raises arguable issues deserving consideration by the appellate court. The Respondent has not demonstrated any prejudice that cannot adequately be compensated by an award of costs should leave be granted.
12. I am therefore persuaded that this is an appropriate case for the exercise of the Court's discretion in favour of the Applicant.
(b) Stay of Execution Pending Appeal
13. The Applicant has also sought an order of stay of execution pending the hearing and determination of the appeal.
14. Under Order 42 Rule 6 of the Civil Procedure Rules, an applicant must demonstrate that substantial loss may result unless the order is granted, that the application has been made without unreasonable delay, and that such security as the Court may order has been provided.
15. I have already found that the present Application was brought without unreasonable delay. In the circumstances of this case, if execution proceeds before the intended appeal is heard, the appeal may be rendered nugatory. On the other hand, the Respondent is entitled to enjoy the fruits of the judgment. The competing interests of the parties can be balanced by granting stay on appropriate terms.
Orders
16. Accordingly, I make the following orders:
i. Leave is hereby granted to the Applicant to file and serve the Memorandum of Appeal out of time.
ii. The Memorandum of Appeal shall be filed and served within twenty-one (21) days from the date of this ruling, failing which the leave hereby granted shall automatically lapse.
iii. There shall be a stay of execution of the judgment and decree in Civil Case No. E196 of 2021 pending the hearing and determination of the intended appeal.
iv. There shall be no order as to costs.
Ruling delivered at Kericho on 22nd July 2026
In the presence of Achieng for the Applicant
Songok for the Respondent
C/A Irene Chelang’at.
2. The Application is supported by the grounds set out on its face and the supporting affidavit sworn by Dorothy A. Odhiambo. The Applicant depones that although she was desirous of appealing against the judgment, she was unable to file the Memorandum of Appeal within the statutory period because she did not receive instructions from her client in good time. By the time the requisite instructions were received, the period prescribed for filing an appeal had already lapsed. She contends that the delay was neither deliberate nor inordinate and urges the Court to exercise its discretion in the interests of justice.
3. The Respondent opposed the Application through a replying affidavit sworn on 29th April 2024. It is contended that the Applicant has not advanced sufficient grounds to warrant the exercise of this Court's discretion, that the delay has not been satisfactorily explained and that the Application is merely intended to delay the enjoyment of the fruits of the judgment.
4. I have carefully considered the Application, the affidavits filed by the parties, the written submissions and the applicable law.
Analysis and Determination
5. The Application raises two issues for determination:
a. Whether the Applicant has established sufficient cause to warrant extension of time to lodge an appeal out of time.
b. Whether the Applicant has satisfied the conditions for grant of stay of execution pending appeal.
(a) Leave to Appeal Out of Time
6. The jurisdiction of this Court to admit an appeal out of time is donated by section 79G of the Civil Procedure Act, which provides that an appeal from a subordinate court shall be filed within thirty days from the date of the decree or order appealed against, provided that an appeal may be admitted out of time if the appellant satisfies the Court that there was good and sufficient cause for not filing the appeal within the prescribed period.
7. The discretion conferred by section 79G is judicial and must be exercised on sound legal principles. In Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR, the Supreme Court held that extension of time is not a right but an equitable remedy available only to a deserving party. The Court identified, among the relevant considerations, the length of the delay, the reason for the delay, the degree of prejudice to the respondent and whether the application has been brought without undue delay.
8. Similarly, in Paul Wanjohi Mathenge v Duncan Gichane Mathenge [2013] eKLR, the Court emphasized that in exercising its discretion, the Court should consider the explanation for the delay, the arguability of the intended appeal and the prejudice likely to be occasioned to the respondent.
9. The judgment sought to be appealed against was delivered on 24th January 2024. The statutory period for filing the appeal expired on 23rd February 2024. The present Application was filed on 28th March 2024, approximately thirty-three (33) days after the expiry of the statutory period.
10. In my view, a delay of approximately one month cannot, in the circumstances of this case, be said to be inordinate. The explanation offered is that counsel had not received instructions from the Applicant within the prescribed period. While litigants are generally expected to act diligently in safeguarding their rights, I am satisfied that the explanation tendered is reasonable and plausible. There is no evidence that the delay was deliberate or intended to obstruct the course of justice.
11. I have also considered the draft Memorandum of Appeal annexed to the Application. Without making definitive findings on its merits, I am satisfied that it raises arguable issues deserving consideration by the appellate court. The Respondent has not demonstrated any prejudice that cannot adequately be compensated by an award of costs should leave be granted.
12. I am therefore persuaded that this is an appropriate case for the exercise of the Court's discretion in favour of the Applicant.
(b) Stay of Execution Pending Appeal
13. The Applicant has also sought an order of stay of execution pending the hearing and determination of the appeal.
14. Under Order 42 Rule 6 of the Civil Procedure Rules, an applicant must demonstrate that substantial loss may result unless the order is granted, that the application has been made without unreasonable delay, and that such security as the Court may order has been provided.
15. I have already found that the present Application was brought without unreasonable delay. In the circumstances of this case, if execution proceeds before the intended appeal is heard, the appeal may be rendered nugatory. On the other hand, the Respondent is entitled to enjoy the fruits of the judgment. The competing interests of the parties can be balanced by granting stay on appropriate terms.
Orders
16. Accordingly, I make the following orders:
i. Leave is hereby granted to the Applicant to file and serve the Memorandum of Appeal out of time.
ii. The Memorandum of Appeal shall be filed and served within twenty-one (21) days from the date of this ruling, failing which the leave hereby granted shall automatically lapse.
iii. There shall be a stay of execution of the judgment and decree in Civil Case No. E196 of 2021 pending the hearing and determination of the intended appeal.
iv. There shall be no order as to costs.
Ruling delivered at Kericho on 22nd July 2026
In the presence of Achieng for the Applicant
Songok for the Respondent
C/A Irene Chelang’at.