REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CIVIL APPEAL NO OF 2025
LEONARD OUMA OCHURO............... INTENDED APPELLANT/APPLICANT
-VERSUS-
BERNARD MWAURA WATHOME ....................................RESPONDENT
(Arising from Judgement and Decree of in the Small Claims Court at Machakos in
SCCC/E1436/2024, delivered by Hon. B.A Luova on 11th April 2025)
RULING
1. This ruling is on the Applicant’s notice of motion application dated 1st July 2025 seeking for stay of execution of the judgement and/or the resultant decree issued on 11th April 2025 pending the hearing and determination of the intended appeal and for leave to file the appeal out of time and the Memorandum of Appeal attached to the application to be deemed as duly filed and properly on record. The application is supported by the supporting affidavit of the Applicant sworn on 1st July 2025.
2. The application is premised on the grounds that Judgment was delivered on 11th April 2025 against the Applicant for the aggregate sum comprising: repair costs (Kshs.176,971), assessment fee (Kshs.6,380), reinspection fee (Kshs.2,900), towing fee (Kshs.6,000), tracing fees (Kshs.30,010), plus costs and interest, all to be borne by the Applicant. The trial court granted a 30-day stay of execution, which has now lapsed, exposing the Applicant to the imminent and real risk of execution by the Respondent. The Applicant, being dissatisfied with both the assessment of liability and the manner in which the judgment was entered, has filed or intends to file an appeal to this Honourable Court, raising significant issues of law, including but not limited to: Whether the learned Magistrate properly and fully considered the evidence, statutory provisions and binding precedents; and whether procedural fairness and the rules of natural justice were accorded to the Applicant.
3. Unless the stay sought is granted, the Respondent will, without hesitation, proceed to execute for the decretal sum, leading to irreparable loss and rendering any appeal nugatory, as recovery would be practically impossible should the appeal succeed. The intended appeal raises serious arguable points of law with a high likelihood of success, and has not been lodged for the purpose of delaying settlement but for proper legal redress.
The urgency of this application has been further heightened by the fact that the Applicant has only on the 1st July 2025 received the Notice of Entry of Judgment from the Claimant/Respondent, placing the Applicant at imminent risk of execution at any moment.
The notification now puts the Applicant on notice that enforcement proceedings may be commenced immediately and without further warning, necessitating swift intervention by this Honourable Court to avert the imminent threat of attachment, distress, or other execution measures.
4. The application has been brought with due promptness and in utmost good faith. The Applicant is willing and ready to comply with any terms as to security that the Court may deem appropriate, including but not limited to, deposit of the decretal sum in a joint interest-earning account, or other security.
It is in the interests of justice and fairness that the orders sought be granted.
5. The application is opposed vide the replying affidavit sworn on 8th August 2025 by JOSEPH N. NGIGI, advocate for the Respondent.
The Respondent contends that the Applicant has not laid any basis or any sufficient basis to grant the orders sought.
6. That the Applicant has all along actively participated in the proceedings before the Small Claims Court being Machakos SCCC No. E1436 of 2024 including attending hearing, culminating in the Judgment delivered on 11th April, 2025.
7. The matter was mentioned on 19th February, 2025 for pre-trial directions and the Applicant’s Advocate sought leave to comply, which was granted and the matter was thus scheduled for hearing on 4th March, 2025.
8. The matter proceeded for hearing on 4th March, 2025 and was fixed for mention to confirm filing of submissions on 31st March, 2025, which date was issued in the presence of both Counsel for the parties. On 31st' March, 2025 the Court did not sit and the matter was thus fixed for further mention on 4th April, 2025. On this date, the matter was fixed for Judgment on 11th April, 2025. The Applicant's Advocate was duly served with a Judgement notice dated 10th April, 2025 through email address at collinsosewe@gmail.com.
9. On 11th April, 2025 the Court indicated that the Judgment was ready and that the same would be uploaded on the Court Tracking System. It is therefore clear that Applicant's Advocates had actual knowledge of the said proceedings and the Judgment date. The Applicant was granted a 30 days stay of execution from the date of the Judgment expiring on 11th May, 2025 within which the Applicant had sufficient time to take necessary steps if he was aggrieved by the Judgment. The Judgment was only uploaded on the Court Tracking System on 24th June, 2025
10. Consequently, the Notice of entry of judgment was duly served upon the Appellant's Advocate on 1st July, 2025. No justifiable reason has been provided by the Applicant for the delay in lodging the appeal.
11. The instant Application is brought with undue delay and no conceivable explanation has been availed for the said delay. In the premises, the instant application is not only an afterthought aimed at frustrating the lawful execution of a valid judgment but also it is made in bad faith and intended to delay the enjoyment of a valid judgment.
12. Further, no sufficient cause or arguable appeal has been demonstrated to warrant leave to appeal out of time and the allegations of irreplaceable loss are unsubstantiated and speculative.
13. It is therefore disingenuous for the Applicant to plead that the Judgment was not brought to their attention in good time when in fact they had knowledge of the claim, the proceedings and entry of Judgment but failed to act with due diligence. The Applicant was bound to follow up on the case if at all he was desirous of appealing the matter. It is belated for the Applicant to seek the Court's discretion when it is evident that he was indolent after delivery of Judgment and sat on his rights to appeal.
14. The Applicant being dissatisfied with the Judgment, opted to file the Appeal and later filed an application seeking leave to Appeal out of time, which is an abuse of Court process because the Appeal has already been filed out of time. The said actions are only aimed at delaying the fair conclusion of the matter.
15. The Respondent contends that if the Applicant is granted their prayers, there would be substantial injustice on the Respondent's part as the Respondent would be kept from enjoying the fruits of a valid judgment and invariably for an indefinite period of time. It is in the interest of justice and fairness that the Appellant's application be dismissed with costs to the Respondent.
Analysis and Determination
16. I have carefully considered the application, supporting affidavit, the replying affidavit and the parties’ submissions. The two issues that emerge for my determination is whether the Applicant has met the conditions necessary for the grant of leave to appeal out of time and for grant of stay of execution pending appeal.
Leave to appeal out of time
17. Section 79G of the Civil Procedure Act states: -
“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 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”.
18. It is clear from the wording of Section 79G of the Civil Procedure Act that before the court considers extension of time, the applicants must satisfy the court that that they have good and sufficient cause for filing the appeal out of time. This principle was enunciated in the case of Diplack Kenya Limited vs William Muthama Kitonyi [2018] eKLR that an applicant seeking enlargement of time to file an appeal or admission of an already filed appeal must show that he has a good cause for doing so.
19. The Supreme Court in the case of Nicholas Kiptoo Korir arap Salat vs IEBC and 7 Others [2014] eKLR enunciated the principles applicable in an application for leave to appeal out of time. The court stated inter alia that:-
“The underlying principles a court should consider in exercise of such discretion should include:-
a. Extension of time is not a right of any party. It is an equitable remedy that is only available to a deserving party at the discretion of the court;
b. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;
c. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case by case basis;
d. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;
e. Whether there will be any prejudice suffered by the respondent if the extension is granted;
f. Whether the application has been brought without undue delay.
20. Similarly in the case of Paul Musili Wambua vs Attorney General & 2 Others [2015] eKLR, the Court of Appeal in considering an application for extension of time and leave to file the Notice of Appeal out of time stated the following:-
“…….it is now settled by a long line of authorities by this court that the decision of whether or not to extend the time for filing an appeal the Judge exercises unfettered discretion. However, in the exercise of such discretion, the court must act upon reason(s) not based on whim or caprice. In general, the matters which a court takes into account in deciding whether or not to grant an extension of time are; the length of delay, the reason for the delay, the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the application is granted.”
21. Applying the above principles to the present case, the judgment herein was delivered on 11.04.2025 and the appeal ought to have been filed by 11.05.2025. The Applicant filed the current application together with the annexed Memorandum of Appeal on 01.07.2025. The instant application dated 01.07. 2025 was filed about three months after judgment and after the lapse of the appeal window. The Applicant has attributed the delay in filing its appeal to the fact that the Applicant did only on the 1st July 2025 receive the Notice of Entry of Judgment from the Claimant/Respondent, placing the Applicant at imminent risk of execution at any moment. The Respondent has challenged this reason for delay and averred that the matter proceeded for hearing on 4th March, 2025 and was fixed for mention to confirm filing of submissions on 31st March, 2025, which date was issued in the presence of both Counsel for the parties. On 31st' March, 2025 the Court did not sit and the matter was thus fixed for further mention on 4th April, 2025. On this date, the matter was fixed for Judgment on 11th April, 2025.
22. The Appellant's Advocate was duly served with a Judgement notice dated 10th April, 2025 through email address at collinsosewe@gmail.com. On 11th April, 2025 the Court indicated that the Judgment was ready and that the same would be uploaded on the Court Tracking System. It is therefore clear that Applicant's Advocates had actual knowledge of the said proceedings and the Judgment date. The Applicant was granted a 30 days stay of execution from the date of the Judgment expiring on 11th May, 2025 within which the Applicant had sufficient time to take necessary steps if he was aggrieved by the Judgment. The Judgment was only uploaded on the Court Tracking System on 24th June, 2025
23. It is therefore disingenuous for the Applicant to plead that the Judgment was not brought to their attention in good time when in fact they had knowledge of the claim, the proceedings and entry of Judgment but failed to act with due diligence. The Applicant was bound to follow up on the case if at all he was desirous of appealing the matter. Consequently, the Notice of entry of judgment was duly served upon the Applicant's Advocate on 1st July, 2025.
24. The Applicant has not disputed the above position as stated by the Respondent.
25. It is my position that nothing stopped the Applicant from following up on the case with his Advocate who would have then confirmed the outcome of the judgement from the CTS and thereafter filed a Memorandum of Appeal within the stipulated 30 days. In the circumstances, I consider the three months delay to be inordinate and the reasons for the delay not to have been satisfactorily explained and convincing to the court as required by the law. In Alibhhai Musajee vs. Shariff Mohammed Al-Bet Civil Appeal No. 283 of 1998, the Court of Appeal held that whereas the Civil Procedure Act allows for extension of time for filing appeal, if good and sufficient cause shown, failure to act does not constitute a good or sufficient cause.
In my view, the Applicant has not given any plausible reasons for the delay in filing the appeal.
Stay of execution pending appeal
26. It is trite law that an appeal does not operate as an automatic stay of execution. The conditions which a party must establish in order for the court to order stay of execution are provided for under Order 42 Rule 6(2) Civil Procedure Rules. Order 42 Rule 6 of the Civil Procedure Rules stipulates:-
1.“No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but the court appealed from may for sufficient cause order stay of execution of such decree or order and whether the application for such stay shall have been granted or refused by the court appealed from the court to which such appeal is preferred shall be at liberty on application being made to consider such application and to make such order thereon as may to it seem just and any person aggrieved by an order of stay made by the court from whose decision the Appeal is preferred may apply to the appellate court to have such orders set aside.
2. No order for stay of execution shall be made under sub rule 1 unless:-
a. The Court is satisfied that substantial loss may result to the 1st Applicant unless the order is made and that the application has been made without unreasonable delay; and
b. Such security as the Court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the Applicant.
27. Thus, under Order 42 Rule 6(2) of the Civil Procedure Rules, an applicant should satisfy the court that:
1. Substantial loss may result to him/her unless the order is made;
2. That the application has been made without unreasonable delay; and
3. The applicant has given such security as the court orders for the due performance of such decree or order as may ultimately be binding on him.
28. Substantial loss was clearly explained in the case of James Wangalwa & Another vs Agnes Naliaka Cheseto [2012] eKLR:-
“No doubt in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process. The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the applicant as the successful party in the appeal…the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory”
29. The Applicant contends that it is apprehensive that the Respondent will proceed with the execution of the said judgment if stay of execution of judgment is not granted. This will occasion irreparable damage and detriment to the Applicant as he considers his appeal to be a meritable appeal with high likelihood of success the outcome of which will be nugatory if determined way after execution has been undertaken.
30. It is trite law that execution is a lawful process and it is not a ground for granting stay of execution. The Applicant is required to show the manner in which execution will irreparably affect him or will alter the status quo to his detriment therefore rendering the appeal nugatory. The Applicant has failed to demonstrate substantial loss in my considered view.
31. On whether the application has been made without unreasonable delay. As already observed the delay was for three months, this period is inordinate and inexcusable.
32. On the issue of security for costs, the purpose of security was explained in the case of Arun C. Sharma vs Ashana Raikundalia t/a Raikundalia & Co. Advocates & 2 Others [2014] eKLR the court stated:-
“The purpose of the security needed under Order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the applicant. It is not to punish the judgment debtor…..Civil process is quite different because in civil process the judgment is like a debt hence the applicants become and are judgment debtors in relation to the respondent. That is why any security given under Order 42 Rule 6 of the Civil Procedure Rules acts as security for the due performance of such decree or order as may ultimately be binding on the applicants. I presume the security must be one which can serve that purpose.
33. Evidently, the issue of security is discretionary and it is upon the court to determine it and set its terms where necessary.
34. The Applicant opted to file the instant Appeal in the absence of a Memorandum of Appeal then later filed the instant application seeking leave to appeal out of time without doing so through a miscellaneous application, I find the application to be incompetent, misconceived and an abuse of court process.
35. The upshot is that it is obvious that this appeal has been file out of time and without leave of court contrary to provisions of Section 79G of the Civil Procedure Act. There is no proper appeal before this court the basis upon which proceedings of stay of execution may be considered.
36. The application as filed therefore has no basis and the same is dismissed with costs to the Respondent assessed at Kshs.15,000/=.
37. It is so ordered.
RULING WRITTEN, DATED & SIGNED AT MACHAKOS THIS 18TH JUNE 2026
NOEL I. ADAGI
JUDGE
DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 18TH JUNE 2026
IN THE HIGH COURT OF KENYA AT MACHAKOS
CIVIL APPEAL NO OF 2025
LEONARD OUMA OCHURO............... INTENDED APPELLANT/APPLICANT
-VERSUS-
BERNARD MWAURA WATHOME ....................................RESPONDENT
(Arising from Judgement and Decree of in the Small Claims Court at Machakos in
SCCC/E1436/2024, delivered by Hon. B.A Luova on 11th April 2025)
RULING
1. This ruling is on the Applicant’s notice of motion application dated 1st July 2025 seeking for stay of execution of the judgement and/or the resultant decree issued on 11th April 2025 pending the hearing and determination of the intended appeal and for leave to file the appeal out of time and the Memorandum of Appeal attached to the application to be deemed as duly filed and properly on record. The application is supported by the supporting affidavit of the Applicant sworn on 1st July 2025.
2. The application is premised on the grounds that Judgment was delivered on 11th April 2025 against the Applicant for the aggregate sum comprising: repair costs (Kshs.176,971), assessment fee (Kshs.6,380), reinspection fee (Kshs.2,900), towing fee (Kshs.6,000), tracing fees (Kshs.30,010), plus costs and interest, all to be borne by the Applicant. The trial court granted a 30-day stay of execution, which has now lapsed, exposing the Applicant to the imminent and real risk of execution by the Respondent. The Applicant, being dissatisfied with both the assessment of liability and the manner in which the judgment was entered, has filed or intends to file an appeal to this Honourable Court, raising significant issues of law, including but not limited to: Whether the learned Magistrate properly and fully considered the evidence, statutory provisions and binding precedents; and whether procedural fairness and the rules of natural justice were accorded to the Applicant.
3. Unless the stay sought is granted, the Respondent will, without hesitation, proceed to execute for the decretal sum, leading to irreparable loss and rendering any appeal nugatory, as recovery would be practically impossible should the appeal succeed. The intended appeal raises serious arguable points of law with a high likelihood of success, and has not been lodged for the purpose of delaying settlement but for proper legal redress.
The urgency of this application has been further heightened by the fact that the Applicant has only on the 1st July 2025 received the Notice of Entry of Judgment from the Claimant/Respondent, placing the Applicant at imminent risk of execution at any moment.
The notification now puts the Applicant on notice that enforcement proceedings may be commenced immediately and without further warning, necessitating swift intervention by this Honourable Court to avert the imminent threat of attachment, distress, or other execution measures.
4. The application has been brought with due promptness and in utmost good faith. The Applicant is willing and ready to comply with any terms as to security that the Court may deem appropriate, including but not limited to, deposit of the decretal sum in a joint interest-earning account, or other security.
It is in the interests of justice and fairness that the orders sought be granted.
5. The application is opposed vide the replying affidavit sworn on 8th August 2025 by JOSEPH N. NGIGI, advocate for the Respondent.
The Respondent contends that the Applicant has not laid any basis or any sufficient basis to grant the orders sought.
6. That the Applicant has all along actively participated in the proceedings before the Small Claims Court being Machakos SCCC No. E1436 of 2024 including attending hearing, culminating in the Judgment delivered on 11th April, 2025.
7. The matter was mentioned on 19th February, 2025 for pre-trial directions and the Applicant’s Advocate sought leave to comply, which was granted and the matter was thus scheduled for hearing on 4th March, 2025.
8. The matter proceeded for hearing on 4th March, 2025 and was fixed for mention to confirm filing of submissions on 31st March, 2025, which date was issued in the presence of both Counsel for the parties. On 31st' March, 2025 the Court did not sit and the matter was thus fixed for further mention on 4th April, 2025. On this date, the matter was fixed for Judgment on 11th April, 2025. The Applicant's Advocate was duly served with a Judgement notice dated 10th April, 2025 through email address at collinsosewe@gmail.com.
9. On 11th April, 2025 the Court indicated that the Judgment was ready and that the same would be uploaded on the Court Tracking System. It is therefore clear that Applicant's Advocates had actual knowledge of the said proceedings and the Judgment date. The Applicant was granted a 30 days stay of execution from the date of the Judgment expiring on 11th May, 2025 within which the Applicant had sufficient time to take necessary steps if he was aggrieved by the Judgment. The Judgment was only uploaded on the Court Tracking System on 24th June, 2025
10. Consequently, the Notice of entry of judgment was duly served upon the Appellant's Advocate on 1st July, 2025. No justifiable reason has been provided by the Applicant for the delay in lodging the appeal.
11. The instant Application is brought with undue delay and no conceivable explanation has been availed for the said delay. In the premises, the instant application is not only an afterthought aimed at frustrating the lawful execution of a valid judgment but also it is made in bad faith and intended to delay the enjoyment of a valid judgment.
12. Further, no sufficient cause or arguable appeal has been demonstrated to warrant leave to appeal out of time and the allegations of irreplaceable loss are unsubstantiated and speculative.
13. It is therefore disingenuous for the Applicant to plead that the Judgment was not brought to their attention in good time when in fact they had knowledge of the claim, the proceedings and entry of Judgment but failed to act with due diligence. The Applicant was bound to follow up on the case if at all he was desirous of appealing the matter. It is belated for the Applicant to seek the Court's discretion when it is evident that he was indolent after delivery of Judgment and sat on his rights to appeal.
14. The Applicant being dissatisfied with the Judgment, opted to file the Appeal and later filed an application seeking leave to Appeal out of time, which is an abuse of Court process because the Appeal has already been filed out of time. The said actions are only aimed at delaying the fair conclusion of the matter.
15. The Respondent contends that if the Applicant is granted their prayers, there would be substantial injustice on the Respondent's part as the Respondent would be kept from enjoying the fruits of a valid judgment and invariably for an indefinite period of time. It is in the interest of justice and fairness that the Appellant's application be dismissed with costs to the Respondent.
Analysis and Determination
16. I have carefully considered the application, supporting affidavit, the replying affidavit and the parties’ submissions. The two issues that emerge for my determination is whether the Applicant has met the conditions necessary for the grant of leave to appeal out of time and for grant of stay of execution pending appeal.
Leave to appeal out of time
17. Section 79G of the Civil Procedure Act states: -
“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 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”.
18. It is clear from the wording of Section 79G of the Civil Procedure Act that before the court considers extension of time, the applicants must satisfy the court that that they have good and sufficient cause for filing the appeal out of time. This principle was enunciated in the case of Diplack Kenya Limited vs William Muthama Kitonyi [2018] eKLR that an applicant seeking enlargement of time to file an appeal or admission of an already filed appeal must show that he has a good cause for doing so.
19. The Supreme Court in the case of Nicholas Kiptoo Korir arap Salat vs IEBC and 7 Others [2014] eKLR enunciated the principles applicable in an application for leave to appeal out of time. The court stated inter alia that:-
“The underlying principles a court should consider in exercise of such discretion should include:-
a. Extension of time is not a right of any party. It is an equitable remedy that is only available to a deserving party at the discretion of the court;
b. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;
c. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case by case basis;
d. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;
e. Whether there will be any prejudice suffered by the respondent if the extension is granted;
f. Whether the application has been brought without undue delay.
20. Similarly in the case of Paul Musili Wambua vs Attorney General & 2 Others [2015] eKLR, the Court of Appeal in considering an application for extension of time and leave to file the Notice of Appeal out of time stated the following:-
“…….it is now settled by a long line of authorities by this court that the decision of whether or not to extend the time for filing an appeal the Judge exercises unfettered discretion. However, in the exercise of such discretion, the court must act upon reason(s) not based on whim or caprice. In general, the matters which a court takes into account in deciding whether or not to grant an extension of time are; the length of delay, the reason for the delay, the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the application is granted.”
21. Applying the above principles to the present case, the judgment herein was delivered on 11.04.2025 and the appeal ought to have been filed by 11.05.2025. The Applicant filed the current application together with the annexed Memorandum of Appeal on 01.07.2025. The instant application dated 01.07. 2025 was filed about three months after judgment and after the lapse of the appeal window. The Applicant has attributed the delay in filing its appeal to the fact that the Applicant did only on the 1st July 2025 receive the Notice of Entry of Judgment from the Claimant/Respondent, placing the Applicant at imminent risk of execution at any moment. The Respondent has challenged this reason for delay and averred that the matter proceeded for hearing on 4th March, 2025 and was fixed for mention to confirm filing of submissions on 31st March, 2025, which date was issued in the presence of both Counsel for the parties. On 31st' March, 2025 the Court did not sit and the matter was thus fixed for further mention on 4th April, 2025. On this date, the matter was fixed for Judgment on 11th April, 2025.
22. The Appellant's Advocate was duly served with a Judgement notice dated 10th April, 2025 through email address at collinsosewe@gmail.com. On 11th April, 2025 the Court indicated that the Judgment was ready and that the same would be uploaded on the Court Tracking System. It is therefore clear that Applicant's Advocates had actual knowledge of the said proceedings and the Judgment date. The Applicant was granted a 30 days stay of execution from the date of the Judgment expiring on 11th May, 2025 within which the Applicant had sufficient time to take necessary steps if he was aggrieved by the Judgment. The Judgment was only uploaded on the Court Tracking System on 24th June, 2025
23. It is therefore disingenuous for the Applicant to plead that the Judgment was not brought to their attention in good time when in fact they had knowledge of the claim, the proceedings and entry of Judgment but failed to act with due diligence. The Applicant was bound to follow up on the case if at all he was desirous of appealing the matter. Consequently, the Notice of entry of judgment was duly served upon the Applicant's Advocate on 1st July, 2025.
24. The Applicant has not disputed the above position as stated by the Respondent.
25. It is my position that nothing stopped the Applicant from following up on the case with his Advocate who would have then confirmed the outcome of the judgement from the CTS and thereafter filed a Memorandum of Appeal within the stipulated 30 days. In the circumstances, I consider the three months delay to be inordinate and the reasons for the delay not to have been satisfactorily explained and convincing to the court as required by the law. In Alibhhai Musajee vs. Shariff Mohammed Al-Bet Civil Appeal No. 283 of 1998, the Court of Appeal held that whereas the Civil Procedure Act allows for extension of time for filing appeal, if good and sufficient cause shown, failure to act does not constitute a good or sufficient cause.
In my view, the Applicant has not given any plausible reasons for the delay in filing the appeal.
Stay of execution pending appeal
26. It is trite law that an appeal does not operate as an automatic stay of execution. The conditions which a party must establish in order for the court to order stay of execution are provided for under Order 42 Rule 6(2) Civil Procedure Rules. Order 42 Rule 6 of the Civil Procedure Rules stipulates:-
1.“No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but the court appealed from may for sufficient cause order stay of execution of such decree or order and whether the application for such stay shall have been granted or refused by the court appealed from the court to which such appeal is preferred shall be at liberty on application being made to consider such application and to make such order thereon as may to it seem just and any person aggrieved by an order of stay made by the court from whose decision the Appeal is preferred may apply to the appellate court to have such orders set aside.
2. No order for stay of execution shall be made under sub rule 1 unless:-
a. The Court is satisfied that substantial loss may result to the 1st Applicant unless the order is made and that the application has been made without unreasonable delay; and
b. Such security as the Court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the Applicant.
27. Thus, under Order 42 Rule 6(2) of the Civil Procedure Rules, an applicant should satisfy the court that:
1. Substantial loss may result to him/her unless the order is made;
2. That the application has been made without unreasonable delay; and
3. The applicant has given such security as the court orders for the due performance of such decree or order as may ultimately be binding on him.
28. Substantial loss was clearly explained in the case of James Wangalwa & Another vs Agnes Naliaka Cheseto [2012] eKLR:-
“No doubt in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process. The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the applicant as the successful party in the appeal…the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory”
29. The Applicant contends that it is apprehensive that the Respondent will proceed with the execution of the said judgment if stay of execution of judgment is not granted. This will occasion irreparable damage and detriment to the Applicant as he considers his appeal to be a meritable appeal with high likelihood of success the outcome of which will be nugatory if determined way after execution has been undertaken.
30. It is trite law that execution is a lawful process and it is not a ground for granting stay of execution. The Applicant is required to show the manner in which execution will irreparably affect him or will alter the status quo to his detriment therefore rendering the appeal nugatory. The Applicant has failed to demonstrate substantial loss in my considered view.
31. On whether the application has been made without unreasonable delay. As already observed the delay was for three months, this period is inordinate and inexcusable.
32. On the issue of security for costs, the purpose of security was explained in the case of Arun C. Sharma vs Ashana Raikundalia t/a Raikundalia & Co. Advocates & 2 Others [2014] eKLR the court stated:-
“The purpose of the security needed under Order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the applicant. It is not to punish the judgment debtor…..Civil process is quite different because in civil process the judgment is like a debt hence the applicants become and are judgment debtors in relation to the respondent. That is why any security given under Order 42 Rule 6 of the Civil Procedure Rules acts as security for the due performance of such decree or order as may ultimately be binding on the applicants. I presume the security must be one which can serve that purpose.
33. Evidently, the issue of security is discretionary and it is upon the court to determine it and set its terms where necessary.
34. The Applicant opted to file the instant Appeal in the absence of a Memorandum of Appeal then later filed the instant application seeking leave to appeal out of time without doing so through a miscellaneous application, I find the application to be incompetent, misconceived and an abuse of court process.
35. The upshot is that it is obvious that this appeal has been file out of time and without leave of court contrary to provisions of Section 79G of the Civil Procedure Act. There is no proper appeal before this court the basis upon which proceedings of stay of execution may be considered.
36. The application as filed therefore has no basis and the same is dismissed with costs to the Respondent assessed at Kshs.15,000/=.
37. It is so ordered.
RULING WRITTEN, DATED & SIGNED AT MACHAKOS THIS 18TH JUNE 2026
NOEL I. ADAGI
JUDGE
DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 18TH JUNE 2026