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1. Before me is the amended Notice of Motion dated 12/6/2025 brought under sections 1A, 1B, 3A, 99 of the Civil Procedure Act order 22 Rule 22, order 51 Rule 1 of the Civil Procedure Rule. Article 140 & 159 of the Constitution.
2. The applicant seeks stay of execution of the judgement entered by Tawa Court in Civil Suit No. E049/2023 on 2/11/2023 against the appellant and 2 others to pay Kshs. 1,305,900.
The court is also requested to grant leave to file appeal out of time by the same applicant.
3. The main ground for the application is that the applicant was never served with any court document including STEA in the lower court matter and that the proceedings were held without his participation, a violation of his right to fair hearing as per Article 50 of the Katiba. The application is supported by his affidavit sworn on 12/6/2025.
4. The applicant also sought that the motor vehicle registration No. KDD 891Z be released pending the hearing and determination of the application.
5. The application is opposed vide the replying affidavit of Muendo Kalii Mbula (Respondent) sworn on 8/7/2025 on the ground that judgement was entered on 23/11/2024 and the application was filed on 11/3/2025 and no explanation is given for the inordinate delay . That the applicant was served with summons to enter appearance, that no memorandum of appeal is attached.
6. That the applicant has not established substantial loss, no security has been deposited from the performance of the decree ; that the motor vehicle cannot be released as there is no other asset ; and in any event – the motor vehicle was not insured leaving no other property available to settle the claim;the respondent depones that the applicant was served through WhatsApp.
7. The appellant filed further affidavit sworn on 5/11/2025 but which was filed without leave.
8. Parties told the court they had filled submissions - I checked CTS I did not see any of submissions.
9. I have considered the application before me, the affidavits by parties and annexures.
10. The only issue for determination is whether the application has any merit.
11. For the application for leave to file appeal out of time – the party must among other things explain the reason for the delay.
The explanation is that the applicant was never served and only became aware of the judgment when his motor vehicle was being attached.
In response the respondent filed the affidavit of service by the process server in the lower court. He says, he served through WhatsApp, that there were blue ticks, he makes reference to a WhatsApp entries of the applicant’s phone number. However no such evidence is attached to the affidavit of service of the process server and there is no way of knowing from the affidavit of service whether or not the applicant was served, whether or not the applicant was served with summons to enter appearance.
That means that the applicant did not know of the proceedings and could not have participated.
There is also no evidence that the applicant was served with notice of the formal proof hearing before the matter was heard.
In the circumstances I find that the application for leave is well explained.
12. Has the applicant complied with the requirements of order 42 Rule 6 of the Civil Procedure Rules?
13. Having not participated in the trial for no fault of his it would only be fair and just for there to be stay of execution pending appeal.
In order to secure the motor vehicle as the asset, the same will be held on running attachment pending hearing and determination of this case – that means the motor vehicle Registration no. KDD 891Z would be released to the applicant on a running attachment; as security for the performance of the decree: That be done within 7 days hereof.
14. The record of appeal be filed within 45 days hereof.
15. The costs of the application to await the outcome of the appeal.
16. Parties are encouraged to negotiate an out of court approach to this matter.
Dated, signed and delivered on CTS on 14th November 2025
Mumbua T. Matheka
Judge
CA Chrispol
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1. Before me is the amended Notice of Motion dated 12/6/2025 brought under sections 1A, 1B, 3A, 99 of the Civil Procedure Act order 22 Rule 22, order 51 Rule 1 of the Civil Procedure Rule. Article 140 & 159 of the Constitution.
2. The applicant seeks stay of execution of the judgement entered by Tawa Court in Civil Suit No. E049/2023 on 2/11/2023 against the appellant and 2 others to pay Kshs. 1,305,900.
The court is also requested to grant leave to file appeal out of time by the same applicant.
3. The main ground for the application is that the applicant was never served with any court document including STEA in the lower court matter and that the proceedings were held without his participation, a violation of his right to fair hearing as per Article 50 of the Katiba. The application is supported by his affidavit sworn on 12/6/2025.
4. The applicant also sought that the motor vehicle registration No. KDD 891Z be released pending the hearing and determination of the application.
5. The application is opposed vide the replying affidavit of Muendo Kalii Mbula (Respondent) sworn on 8/7/2025 on the ground that judgement was entered on 23/11/2024 and the application was filed on 11/3/2025 and no explanation is given for the inordinate delay . That the applicant was served with summons to enter appearance, that no memorandum of appeal is attached.
6. That the applicant has not established substantial loss, no security has been deposited from the performance of the decree ; that the motor vehicle cannot be released as there is no other asset ; and in any event – the motor vehicle was not insured leaving no other property available to settle the claim;the respondent depones that the applicant was served through WhatsApp.
7. The appellant filed further affidavit sworn on 5/11/2025 but which was filed without leave.
8. Parties told the court they had filled submissions - I checked CTS I did not see any of submissions.
9. I have considered the application before me, the affidavits by parties and annexures.
10. The only issue for determination is whether the application has any merit.
11. For the application for leave to file appeal out of time – the party must among other things explain the reason for the delay.
The explanation is that the applicant was never served and only became aware of the judgment when his motor vehicle was being attached.
In response the respondent filed the affidavit of service by the process server in the lower court. He says, he served through WhatsApp, that there were blue ticks, he makes reference to a WhatsApp entries of the applicant’s phone number. However no such evidence is attached to the affidavit of service of the process server and there is no way of knowing from the affidavit of service whether or not the applicant was served, whether or not the applicant was served with summons to enter appearance.
That means that the applicant did not know of the proceedings and could not have participated.
There is also no evidence that the applicant was served with notice of the formal proof hearing before the matter was heard.
In the circumstances I find that the application for leave is well explained.
12. Has the applicant complied with the requirements of order 42 Rule 6 of the Civil Procedure Rules?
13. Having not participated in the trial for no fault of his it would only be fair and just for there to be stay of execution pending appeal.
In order to secure the motor vehicle as the asset, the same will be held on running attachment pending hearing and determination of this case – that means the motor vehicle Registration no. KDD 891Z would be released to the applicant on a running attachment; as security for the performance of the decree: That be done within 7 days hereof.
14. The record of appeal be filed within 45 days hereof.
15. The costs of the application to await the outcome of the appeal.
16. Parties are encouraged to negotiate an out of court approach to this matter.
Dated, signed and delivered on CTS on 14th November 2025
Mumbua T. Matheka
Judge
CA Chrispol
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