1. By way of a Notice of Motion Application dated 14th March 2025 in which the applicant seeks two substantive orders;
a. leave to Appeal out of time against the Judgment delivered on the 28th day of November, 2024 in Mavoko MCC NO.801 of 2020 Samuel Ngugi Mukora versus Mecca Trading Company Ltd
b. a temporary order for stay of execution of the judgment and decree pending the hearing and determination of the intended appeal.
2. The application is supported by the affidavit of Aidah Mutua and on the grounds set out on the face of the motion.
3. The Applicant contends that judgment was delivered on 28th November 2024 in favour of the Respondent for a sum of Kshs. 5,734,110/- less 20% contributory negligence. He intends to appeal against the quantum of damages but the statutory period for filing an appeal has lapsed. He therefore seeks enlargement of time.
4. The Applicant explains that the delay in filing the appeal was not deliberate, as parties were engaged in negotiations aimed at settling part of the decretal sum. He asserts that the intended appeal is meritorious and has high chances of success. He further states that on 12th March 2025, he was served with warrants and a proclamation of attachable property dated 7th March 2025 by Racksam Auctioneers hence he also seeks an order for stay of execution. He argues that the Respondent will suffer no prejudice if the Court exercises its discretion in his favour.
5. The application is opposed through a Relying Affidavit sworn on by the respondent. He terms the application, frivolous, a non starter and an abuse of the court’s process.
6. The Respondent points out that the Applicant had earlier filed an application dated 20th December 2024 seeking review of judgment and stay of execution. The trial court granted temporary stay on condition that the Applicant deposits Kshs. 500,000/- within seven days. The Applicant failed to comply and instead filed another application dated 10th January 2025 seeking extension of time to comply. Both applications were subsequently withdrawn on 19th March 2025.
7. The Respondent argues that the Applicant has not explained the delay in filing the appeal, has failed to satisfy the conditions for leave to appeal out of time, and has not met the requirements for grant of stay of execution. He urges that should the court grant an order for stay the Applicant should be compelled to deposit in court the entire decretal sum together with auctioneer’s fees. The Application was heard by way of submissions which I have considered.
8. The issues arising for determination are:
a. Whether the Applicant has demonstrated sufficient cause to warrant extension of time to file an appeal out of time.
b. Whether the Applicant has satisfied the conditions for grant of stay of execution pending appeal.
9. Section 79G of the Civil Procedure Act prescribes the timelines for filing of appeals from the subordinate courts to the High Court. Section 95 of the Civil Procedure Act and Order 50 Rule 6 of the Civil Procedure Rules, 2010 gives this court the power to extend time. This discretion, though unfettered must be exercised judiciously.
10. The Supreme Court in the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral & Boundaries Commission & 7 others (2014) eKLR the Supreme Court laid down the guiding principles as follows;
a. Extension of time is not a right of a 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 respondents if the extension is granted;
f. Whether the application has been brought without undue delay.
g. Whether in certain cases, like election petitions, public interest should be a consideration for extending time.
11. Judgment in the primary suit was delivered on 28th November 2024. The present application was filed on 14th March 2025, nearly four months later. The Applicant attributes the delay to negotiations with the Respondent. However, the record shows otherwise.
12. The Applicant filed an application for review and stay of execution on 20th December 2024. A ruling was delivered on 30th December 2024 requiring deposit of Kshs. 500,000/- within seven days. Instead of complying, the Applicant filed another application on 10th January 2025 seeking enlargement of time to comply with the orders requiring him to deposit kshs 500,000/-. Both applications were then withdrawn on 19th March 2025.
13. From this sequence, it is evident that the Applicant was actively litigating rather than negotiating. No evidence of negotiations has been placed before this Court. The explanation advanced is therefore neither candid nor satisfactory. The Applicant has failed to demonstrate “good and sufficient cause” for the delay.
14. The Court is persuaded by the Respondent’s submission that the Applicant has not come to court with clean hands. His conduct reflects lack of diligence and candour. To grant extension in such circumstances would prejudice the Respondent, who is entitled to enjoy the fruits of his judgment without undue delay.
15. Turning to the prayer for stay of execution, it is trite that stay can only be granted where there is a pending appeal. Since leave to file appeal out of time has been declined, no appeal exists. Consequently, there is no legal basis upon which this Court can exercise its discretion to grant stay of execution.
16. In light of the foregoing analysis, the Court finds that the Applicant has failed to demonstrate sufficient cause for extension of time to file an appeal out of time. The prayer for stay of execution equally fails for want of a pending appeal.
17. Accordingly, the Notice of Motion dated 14th March 2025 is dismissed in its entirety. Costs shall be borne by the Applicant.
a. leave to Appeal out of time against the Judgment delivered on the 28th day of November, 2024 in Mavoko MCC NO.801 of 2020 Samuel Ngugi Mukora versus Mecca Trading Company Ltd
b. a temporary order for stay of execution of the judgment and decree pending the hearing and determination of the intended appeal.
2. The application is supported by the affidavit of Aidah Mutua and on the grounds set out on the face of the motion.
3. The Applicant contends that judgment was delivered on 28th November 2024 in favour of the Respondent for a sum of Kshs. 5,734,110/- less 20% contributory negligence. He intends to appeal against the quantum of damages but the statutory period for filing an appeal has lapsed. He therefore seeks enlargement of time.
4. The Applicant explains that the delay in filing the appeal was not deliberate, as parties were engaged in negotiations aimed at settling part of the decretal sum. He asserts that the intended appeal is meritorious and has high chances of success. He further states that on 12th March 2025, he was served with warrants and a proclamation of attachable property dated 7th March 2025 by Racksam Auctioneers hence he also seeks an order for stay of execution. He argues that the Respondent will suffer no prejudice if the Court exercises its discretion in his favour.
5. The application is opposed through a Relying Affidavit sworn on by the respondent. He terms the application, frivolous, a non starter and an abuse of the court’s process.
6. The Respondent points out that the Applicant had earlier filed an application dated 20th December 2024 seeking review of judgment and stay of execution. The trial court granted temporary stay on condition that the Applicant deposits Kshs. 500,000/- within seven days. The Applicant failed to comply and instead filed another application dated 10th January 2025 seeking extension of time to comply. Both applications were subsequently withdrawn on 19th March 2025.
7. The Respondent argues that the Applicant has not explained the delay in filing the appeal, has failed to satisfy the conditions for leave to appeal out of time, and has not met the requirements for grant of stay of execution. He urges that should the court grant an order for stay the Applicant should be compelled to deposit in court the entire decretal sum together with auctioneer’s fees. The Application was heard by way of submissions which I have considered.
8. The issues arising for determination are:
a. Whether the Applicant has demonstrated sufficient cause to warrant extension of time to file an appeal out of time.
b. Whether the Applicant has satisfied the conditions for grant of stay of execution pending appeal.
9. Section 79G of the Civil Procedure Act prescribes the timelines for filing of appeals from the subordinate courts to the High Court. Section 95 of the Civil Procedure Act and Order 50 Rule 6 of the Civil Procedure Rules, 2010 gives this court the power to extend time. This discretion, though unfettered must be exercised judiciously.
10. The Supreme Court in the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral & Boundaries Commission & 7 others (2014) eKLR the Supreme Court laid down the guiding principles as follows;
a. Extension of time is not a right of a 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 respondents if the extension is granted;
f. Whether the application has been brought without undue delay.
g. Whether in certain cases, like election petitions, public interest should be a consideration for extending time.
11. Judgment in the primary suit was delivered on 28th November 2024. The present application was filed on 14th March 2025, nearly four months later. The Applicant attributes the delay to negotiations with the Respondent. However, the record shows otherwise.
12. The Applicant filed an application for review and stay of execution on 20th December 2024. A ruling was delivered on 30th December 2024 requiring deposit of Kshs. 500,000/- within seven days. Instead of complying, the Applicant filed another application on 10th January 2025 seeking enlargement of time to comply with the orders requiring him to deposit kshs 500,000/-. Both applications were then withdrawn on 19th March 2025.
13. From this sequence, it is evident that the Applicant was actively litigating rather than negotiating. No evidence of negotiations has been placed before this Court. The explanation advanced is therefore neither candid nor satisfactory. The Applicant has failed to demonstrate “good and sufficient cause” for the delay.
14. The Court is persuaded by the Respondent’s submission that the Applicant has not come to court with clean hands. His conduct reflects lack of diligence and candour. To grant extension in such circumstances would prejudice the Respondent, who is entitled to enjoy the fruits of his judgment without undue delay.
15. Turning to the prayer for stay of execution, it is trite that stay can only be granted where there is a pending appeal. Since leave to file appeal out of time has been declined, no appeal exists. Consequently, there is no legal basis upon which this Court can exercise its discretion to grant stay of execution.
16. In light of the foregoing analysis, the Court finds that the Applicant has failed to demonstrate sufficient cause for extension of time to file an appeal out of time. The prayer for stay of execution equally fails for want of a pending appeal.
17. Accordingly, the Notice of Motion dated 14th March 2025 is dismissed in its entirety. Costs shall be borne by the Applicant.