1. The Notice of Motion dated April 22, 2025, primarily requests the following reliefs:
a) A stay of execution of the judgment and decree in Malindi MCELC Number E-011 of 2022, Manthura Mohamed v Mustafa Adamjee, be granted pending the hearing and determination of the intended appeal.
b) The Court be pleased to grant leave to file an appeal out of time against the Judgment and Decree of Honorable Ongondo, Senior Principal Magistrate, delivered on February 26, 2025.
2. The application is supported by the applicant's affidavit and is opposed through Grounds of Opposition dated April 29, 2025.
3. The application was thoroughly discussed through written submissions. I acknowledge the comprehensive submissions filed by both counsels for the parties, which meticulously outline the relevant law and precedents applicable to resolving the issues at hand.
4. The issues arising from the materials and submissions by the parties include whether to stay the execution of the impugned judgment and decree, whether to extend the time for appeal, and who should bear the costs of this litigation.
5. The criteria for granting a stay of execution pending appeal stipulate that the appeal must be arguable and not frivolous. Furthermore, it must be demonstrated that, in the absence of a stay order, the appeal would be rendered futile, particularly if the appeal has the potential to succeed. Refer to the decision of the Court of Appeal in Simon Kimani Mbitiru and 5 others v Joseph Kamau Mwangi and 11 others [2011] eKLR; Kenya Ports Authority v Cemtec Engineering Ltd [2023] KECA 1065 [KLR] 2nd September 2023 23 [Ruling]; and the Court of Appeal in Trust Bank Ltd and Another v Investech Bank Ltd and 3 others [2000] eKLR.
6. When deciding whether to grant a stay, the court exercises its broad and unrestricted discretion with utmost care. It considers factors such as the potential for significant harm to the applicant if the stay is denied. The timeliness of the application is crucial, as demonstrated by the High Court's decision in Kenya Wildlife Service v James Mutembei [2019] eKLR and the Court of Appeal's decision in Halai and Another v Thornton and Turpin (1963) Limited [1990] KLR.
7. The judgment or decree being a dismissal is a negative order incapable of execution in the ordinary sense and therefore cannot be the basis for ‘stay orders’ as sought. It is a ‘fait accompli’. The court has not ordered any ‘positive act’ capable of being stayed, and the applicant has not demonstrated any ‘loss’ she is likely to suffer if a stay is not granted, merely stating that she ‘intends to file an appeal’. It is well established that the execution of a lawful process is not a ground for granting a stay of execution. The applicant has failed to show how execution would irreparably affect her or alter the status quo to her detriment, thereby making the appeal nugatory. There is no positive order that can be executed, and the applicant remains in the same situation as before coming to court.
8. Consequently, the court declines to grant this prayer.
9. The extension of time to file an appeal is not an automatic right but an equitable remedy that is only available to a deserving party at the Court's discretion. When exercising this discretion, the Court considers various factors, as demonstrated in Paul Wanjohi Methane v Duncan Gichane Mathenge [2013] eKLR, where the Court stated that the discretion is unfettered:
“, but it has to be exercised judicially, not on whim sympathy or caprice. I take note that in exercising my discretion, I ought to be guided by consideration of the factors stated in the previous decisions of the courts including but not limited to ; the period of delay, the reasons for the delay, the degree of prejudice to the respondent if the application is granted…and whether the matter raises issues of public importance……’Supreme Court settled the Applicable principles in- Nicholas Kiptoo Korir Arap Salat v IEBC [2014]eKLR-‘extension of time is not a right to a party, it is an equitable remedy that is only available to a deserving party at the discretion of the Court. A party who seeks extension of time has the burden of laying a basis to the satisfaction of the Court, and consideration is made on case-by- case basis. A reasonable reason for the delay should be explained to the satisfaction of the Court, whether there will be any prejudice, absence of undue delay, and public interest…”
10. In Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] eKLR, the Court of Appeal stated that the law does not specify any minimum or maximum length of time for delay; it only requires that the delay be sufficiently justified. A reasonable and convincing explanation is the key factor that allows the court to exercise its discretion.
11. In this case, the applicant asserts that there was a delay of approximately 27 days in filing the appeal within the 30 days stipulated by Section 79G of the Civil Procedure Act. The applicant maintains that a communication breakdown occurred between the advocate and her, attributed to the observance of the Holy Month of Ramadhan. The respondent contends that a satisfactory explanation for the two-month delay has not been provided, as the judgment was delivered on February 26, 2025, and the Certificate of Urgency application was filed in court on April 28, 2025. According to her admission in the affidavit, the applicant was present in court at the time the judgment was issued. The applicant's advocate also confirms in paragraph 2 of the Certificate of Urgency that they were present in court during the judgment.
12. According to the respondent, the period and reasons provided for the delay are inconsistent, and the prevarication suggests dishonesty or bad faith, thereby disqualifying the entitlement to an equitable remedy in the form of enlargement of time within which to appeal.
13. I have considered the delay in this matter regarding the filing of the appeal within the required statutory timelines—whether 27 days as suggested by the applicant or 2 months as indicated by the respondent. I find the reasons provided to be relevant, as the applicant did not communicate her intention to appeal promptly to her advocate. Besides the delay, which I observe was approximately 2 months, it cannot be deemed an inordinate delay. Since no stay of execution has been granted, the applicant, who is eager to exercise the right of appeal, is hereby granted an extension of time to do so.
14. Consequently, the application dated April 22, 2025, partially succeeded in the grant of leave to appeal out of time.
15. Costs in the intended appeal.
Dated, signed, and delivered at Malindi virtually on this 24th day of July 2025.
E. K. MAKORI
JUDGE
In the Presence of:
Ms Kanyaha for the Applicant
Happy: Court Assistant
In the Absence of:
Ms. Chepkwony for the Respondent
a) A stay of execution of the judgment and decree in Malindi MCELC Number E-011 of 2022, Manthura Mohamed v Mustafa Adamjee, be granted pending the hearing and determination of the intended appeal.
b) The Court be pleased to grant leave to file an appeal out of time against the Judgment and Decree of Honorable Ongondo, Senior Principal Magistrate, delivered on February 26, 2025.
2. The application is supported by the applicant's affidavit and is opposed through Grounds of Opposition dated April 29, 2025.
3. The application was thoroughly discussed through written submissions. I acknowledge the comprehensive submissions filed by both counsels for the parties, which meticulously outline the relevant law and precedents applicable to resolving the issues at hand.
4. The issues arising from the materials and submissions by the parties include whether to stay the execution of the impugned judgment and decree, whether to extend the time for appeal, and who should bear the costs of this litigation.
5. The criteria for granting a stay of execution pending appeal stipulate that the appeal must be arguable and not frivolous. Furthermore, it must be demonstrated that, in the absence of a stay order, the appeal would be rendered futile, particularly if the appeal has the potential to succeed. Refer to the decision of the Court of Appeal in Simon Kimani Mbitiru and 5 others v Joseph Kamau Mwangi and 11 others [2011] eKLR; Kenya Ports Authority v Cemtec Engineering Ltd [2023] KECA 1065 [KLR] 2nd September 2023 23 [Ruling]; and the Court of Appeal in Trust Bank Ltd and Another v Investech Bank Ltd and 3 others [2000] eKLR.
6. When deciding whether to grant a stay, the court exercises its broad and unrestricted discretion with utmost care. It considers factors such as the potential for significant harm to the applicant if the stay is denied. The timeliness of the application is crucial, as demonstrated by the High Court's decision in Kenya Wildlife Service v James Mutembei [2019] eKLR and the Court of Appeal's decision in Halai and Another v Thornton and Turpin (1963) Limited [1990] KLR.
7. The judgment or decree being a dismissal is a negative order incapable of execution in the ordinary sense and therefore cannot be the basis for ‘stay orders’ as sought. It is a ‘fait accompli’. The court has not ordered any ‘positive act’ capable of being stayed, and the applicant has not demonstrated any ‘loss’ she is likely to suffer if a stay is not granted, merely stating that she ‘intends to file an appeal’. It is well established that the execution of a lawful process is not a ground for granting a stay of execution. The applicant has failed to show how execution would irreparably affect her or alter the status quo to her detriment, thereby making the appeal nugatory. There is no positive order that can be executed, and the applicant remains in the same situation as before coming to court.
8. Consequently, the court declines to grant this prayer.
9. The extension of time to file an appeal is not an automatic right but an equitable remedy that is only available to a deserving party at the Court's discretion. When exercising this discretion, the Court considers various factors, as demonstrated in Paul Wanjohi Methane v Duncan Gichane Mathenge [2013] eKLR, where the Court stated that the discretion is unfettered:
“, but it has to be exercised judicially, not on whim sympathy or caprice. I take note that in exercising my discretion, I ought to be guided by consideration of the factors stated in the previous decisions of the courts including but not limited to ; the period of delay, the reasons for the delay, the degree of prejudice to the respondent if the application is granted…and whether the matter raises issues of public importance……’Supreme Court settled the Applicable principles in- Nicholas Kiptoo Korir Arap Salat v IEBC [2014]eKLR-‘extension of time is not a right to a party, it is an equitable remedy that is only available to a deserving party at the discretion of the Court. A party who seeks extension of time has the burden of laying a basis to the satisfaction of the Court, and consideration is made on case-by- case basis. A reasonable reason for the delay should be explained to the satisfaction of the Court, whether there will be any prejudice, absence of undue delay, and public interest…”
10. In Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] eKLR, the Court of Appeal stated that the law does not specify any minimum or maximum length of time for delay; it only requires that the delay be sufficiently justified. A reasonable and convincing explanation is the key factor that allows the court to exercise its discretion.
11. In this case, the applicant asserts that there was a delay of approximately 27 days in filing the appeal within the 30 days stipulated by Section 79G of the Civil Procedure Act. The applicant maintains that a communication breakdown occurred between the advocate and her, attributed to the observance of the Holy Month of Ramadhan. The respondent contends that a satisfactory explanation for the two-month delay has not been provided, as the judgment was delivered on February 26, 2025, and the Certificate of Urgency application was filed in court on April 28, 2025. According to her admission in the affidavit, the applicant was present in court at the time the judgment was issued. The applicant's advocate also confirms in paragraph 2 of the Certificate of Urgency that they were present in court during the judgment.
12. According to the respondent, the period and reasons provided for the delay are inconsistent, and the prevarication suggests dishonesty or bad faith, thereby disqualifying the entitlement to an equitable remedy in the form of enlargement of time within which to appeal.
13. I have considered the delay in this matter regarding the filing of the appeal within the required statutory timelines—whether 27 days as suggested by the applicant or 2 months as indicated by the respondent. I find the reasons provided to be relevant, as the applicant did not communicate her intention to appeal promptly to her advocate. Besides the delay, which I observe was approximately 2 months, it cannot be deemed an inordinate delay. Since no stay of execution has been granted, the applicant, who is eager to exercise the right of appeal, is hereby granted an extension of time to do so.
14. Consequently, the application dated April 22, 2025, partially succeeded in the grant of leave to appeal out of time.
15. Costs in the intended appeal.
Dated, signed, and delivered at Malindi virtually on this 24th day of July 2025.
E. K. MAKORI
JUDGE
In the Presence of:
Ms Kanyaha for the Applicant
Happy: Court Assistant
In the Absence of:
Ms. Chepkwony for the Respondent