Background
1. The Appellant filed a Notice of Motion seeking, inter alia, a stay of execution pending the hearing and determination of the intended appeal, and leave to file the appeal out of time.
2. The application arises from proceedings in which summary judgment was entered against the Appellant on 7th March 2025. The Appellant contends that he was not accorded an opportunity to fully present his defence, and further alleges that there were pending matters, including an application for review and issues surrounding alleged police investigations against the Respondent.
3. The Respondent opposed the application and filed a Notice of Preliminary Objection dated 13th March 2026 contending that the application and intended appeal were statute-barred, that the same offended Section 79G of the Civil Procedure Act, and that the Court lacked jurisdiction due to limitation and laches. It was further argued that the application did not meet the threshold under Order 42 Rule 6 of the Civil Procedure Rules.
Issues for Determination
The Court identifies the following issues for determination:
i. Whether the Preliminary Objection is sustainable;ii. Whether the Appellant has satisfied the requirements for stay of execution;iii. Whether leave to appeal out of time should be granted;iv. Appropriate orders in the circumstances.
Determination
(a) Preliminary Objection
4. A preliminary objection must raise a pure point of law capable of disposing of the matter without requiring the ascertainment of facts or the exercise of discretion, as established in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 .
5. In the present case, the proceedings reveal procedural complexities. The date of judgment and related applications have not been presented with clarity, and the Court is required to examine the record to ascertain the relevant timelines. Furthermore, the matter involves the exercise of judicial discretion regarding the enlargement of time and stay of execution.
6. In the circumstances, the Preliminary Objection does not meet the threshold of a proper preliminary objection and is therefore without merit.
Accordingly, the Preliminary Objection is dismissed.
(b) Leave to Appeal Out of Time
7. The record shows that summary judgment was delivered on 7th March 2025. Under Section 79G of the Civil Procedure Act, an appeal ought to have been filed within thirty (30) days.
8. The memorandum of appeal was filed outside the prescribed period. The Appellant sought leave to appeal out of time.
9. The principles governing extension of time are well settled, including in Nicholas Kiptoo Arap Salat v IEBC & 7 Others [2014] eKLR , where the Supreme Court emphasized that extension of time is an equitable remedy, dependent upon reasonable explanation for delay, absence of undue delay, and consideration of prejudice.
10. The Court notes that there is a pending application seeking leave to appeal out of time, and the procedural history of this matter which indicates that the issues between the parties have not been clearly and finally resolved. The record appears muddled, with multiple applications and interim orders issued in the course of proceedings.
11. In the interests of justice, and to allow the Appellant an opportunity to ventilate the appeal on its merits, the Court is inclined to exercise its discretion in favour of granting leave.
(c) Stay of Execution
12. The purpose of a stay of execution is to preserve the subject matter pending the determination of the appeal, so that the appeal is not rendered nugatory.
13. Considering that leave to appeal has been granted, and to maintain the status quo pending preparation of the appeal, the Court finds it appropriate to grant a stay of execution on terms.
Orders
Accordingly, the Court makes the following orders:
1. The Preliminary Objection dated 13th March 2026 is hereby dismissed.
2. Stay of execution of the decree, warrants of attachment, proclamation of attachment, and warrants of sale issued in the matter is hereby granted pending the hearing and determination of the intended appeal.
3. Leave is hereby granted to the Appellant to file the appeal out of time.
4. The Record of Appeal shall be prepared and filed within thirty (30) days from the date hereof.
5. In the meantime, the Appellant shall, within fourteen (14) days, file and serve a clear proposal outlining the terms and mode of repayment of the decretal sum, for consideration by the Court and/or the Respondent.
6. Costs shall abide the outcome of the appeal.
7. MENTION BEFORE THE DEPUTY REGISTRAR ON 9.6.2026
Conclusion
This matter is best determined on its merits rather than on technical objections, particularly in light of the pending application for enlargement of time and the procedural inconsistencies noted in the record. The orders herein are made in the interest of justice.
It is so ordered.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS …13TH… DAY OF MAY……… 2026.
HON. LADY JUSTICE W. K. MICHENI
JUDGE
1. The Appellant filed a Notice of Motion seeking, inter alia, a stay of execution pending the hearing and determination of the intended appeal, and leave to file the appeal out of time.
2. The application arises from proceedings in which summary judgment was entered against the Appellant on 7th March 2025. The Appellant contends that he was not accorded an opportunity to fully present his defence, and further alleges that there were pending matters, including an application for review and issues surrounding alleged police investigations against the Respondent.
3. The Respondent opposed the application and filed a Notice of Preliminary Objection dated 13th March 2026 contending that the application and intended appeal were statute-barred, that the same offended Section 79G of the Civil Procedure Act, and that the Court lacked jurisdiction due to limitation and laches. It was further argued that the application did not meet the threshold under Order 42 Rule 6 of the Civil Procedure Rules.
Issues for Determination
The Court identifies the following issues for determination:
i. Whether the Preliminary Objection is sustainable;ii. Whether the Appellant has satisfied the requirements for stay of execution;iii. Whether leave to appeal out of time should be granted;iv. Appropriate orders in the circumstances.
Determination
(a) Preliminary Objection
4. A preliminary objection must raise a pure point of law capable of disposing of the matter without requiring the ascertainment of facts or the exercise of discretion, as established in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 .
5. In the present case, the proceedings reveal procedural complexities. The date of judgment and related applications have not been presented with clarity, and the Court is required to examine the record to ascertain the relevant timelines. Furthermore, the matter involves the exercise of judicial discretion regarding the enlargement of time and stay of execution.
6. In the circumstances, the Preliminary Objection does not meet the threshold of a proper preliminary objection and is therefore without merit.
Accordingly, the Preliminary Objection is dismissed.
(b) Leave to Appeal Out of Time
7. The record shows that summary judgment was delivered on 7th March 2025. Under Section 79G of the Civil Procedure Act, an appeal ought to have been filed within thirty (30) days.
8. The memorandum of appeal was filed outside the prescribed period. The Appellant sought leave to appeal out of time.
9. The principles governing extension of time are well settled, including in Nicholas Kiptoo Arap Salat v IEBC & 7 Others [2014] eKLR , where the Supreme Court emphasized that extension of time is an equitable remedy, dependent upon reasonable explanation for delay, absence of undue delay, and consideration of prejudice.
10. The Court notes that there is a pending application seeking leave to appeal out of time, and the procedural history of this matter which indicates that the issues between the parties have not been clearly and finally resolved. The record appears muddled, with multiple applications and interim orders issued in the course of proceedings.
11. In the interests of justice, and to allow the Appellant an opportunity to ventilate the appeal on its merits, the Court is inclined to exercise its discretion in favour of granting leave.
(c) Stay of Execution
12. The purpose of a stay of execution is to preserve the subject matter pending the determination of the appeal, so that the appeal is not rendered nugatory.
13. Considering that leave to appeal has been granted, and to maintain the status quo pending preparation of the appeal, the Court finds it appropriate to grant a stay of execution on terms.
Orders
Accordingly, the Court makes the following orders:
1. The Preliminary Objection dated 13th March 2026 is hereby dismissed.
2. Stay of execution of the decree, warrants of attachment, proclamation of attachment, and warrants of sale issued in the matter is hereby granted pending the hearing and determination of the intended appeal.
3. Leave is hereby granted to the Appellant to file the appeal out of time.
4. The Record of Appeal shall be prepared and filed within thirty (30) days from the date hereof.
5. In the meantime, the Appellant shall, within fourteen (14) days, file and serve a clear proposal outlining the terms and mode of repayment of the decretal sum, for consideration by the Court and/or the Respondent.
6. Costs shall abide the outcome of the appeal.
7. MENTION BEFORE THE DEPUTY REGISTRAR ON 9.6.2026
Conclusion
This matter is best determined on its merits rather than on technical objections, particularly in light of the pending application for enlargement of time and the procedural inconsistencies noted in the record. The orders herein are made in the interest of justice.
It is so ordered.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS …13TH… DAY OF MAY……… 2026.
HON. LADY JUSTICE W. K. MICHENI
JUDGE