(Being an Appeal against the Judgement of Hon. Limo B. Benjamin delivered on the 12 th day of March 2025 in Siaya Case No. MCCC No. E034 OF 2022)
JUDGEMENT
1. The Appellant filed the present application dated 11/11/2025 seeking the following orders; -
i) Spent.
ii) That this Honourable Court be pleased to enlarge the time within which the Appellant may appeal against the Judgement entered on the 12th day of March 2025.
iii) That this Honourable Court do grant leave to the Appellant to file and prosecute the intended appeal out of time.
iv) That this Honourable Court be pleased to order for stay of execution of the Judgment entered on the 12th day of March 2025 against the Appellant pending the hearing and determination of the appeal.
v) That pending the hearing and determination of this application for stay, an interim order of stay of execution of the Orders made on the 12th day of March 2025 against the Appellant be and is hereby granted.
vi) That costs of this application be provided for.
2. The application is supported by the grounds set out thereunder and by the supporting affidavit of the Appellant’s sales manager sworn on even date. The Appellant’s gravamen is inter alia; that the Appellant/Applicant is aggrieved by the entire Judgement of the Chief Magistrates Court at Siaya by Hon. Limo B. Benjamin dated 12th March 2025 in MCCC E34 OF 2022, and appeals against it; that this Application is urgent and needs to be heard immediately as the 1st and 2nd Respondents might execute the Judgement herein; that the 1st and 2nd Respondents conduct is indicative of their intentions to execute the judgment herein; that the Appellant has reasonable cause to believe that the auctioneers intend on selling the subject motor vehicle in the course of next week; that the auctioneers have issued the Appellant with Warrants of Attachment of movable property, Warrants of Sale of property in execution for decree for money, and Proclamation of Attachment of Movable Property; that the Appellant has an arguable Appeal with good prospects of success; that the Appellant’s failure to comply with the trial court’s earlier directions was not deliberate or intended to obstruct the course of justice, but arose from circumstances beyond its control as it was notified of the same by Soni & Associates Advocates LLP; that the failure arose from the inadvertence of the Appellant’s previous counsel and the mistakes of counsel should not be visited upon the litigant, particularly where no deliberate disregard of court orders is demonstrated; that the Appellant is ready and willing to deposit half the decretal sum as security; that the Judgement subject matter herein being substantial, should execution proceed, the Appellant stands to suffer irreparable loss and prejudice; that the Appellant sold Motor Vehicle Registration Number KDE 776H to one LEAH ATIENO OGOLLA, the 3rd Respondent herein, vide a Sale Agreement made on the 2nd day of November 2021 for the purchase price of Kshs. 1,150,000/-; that the 3rd Respondent had paid a deposit of Kshs. 360,000/- upon execution of the Sale Agreement dated 2nd November 2021 and took possession of Motor Vehicle Registration Number KDE 776H; that under the afore-mentioned agreement, LEAH ATIENO OGOLLA was to pay the balance of Kshs. 790,000/- in monthly installments of Kshs. 43,889/- for eighteen (18) months; that as at the time of the accident in question, the 3rd Respondent, LEAH ATIENO OGOLLA, was still paying the monthly installments and was in actual possession of Motor Vehicle Registration Number KDE 776H; that as per Clause 8 Sale Agreement dated 2nd November 2021, in event of any liability or claim, arising during the subsistence of that agreement in respect of the motor vehicle in question, the hirer shall be 100% accountable and did guarantee the owners that condition shall be faithfully complied with in the event of any eventuality. Additionally, that covenant was to be pleaded as defense to any claim the owners may be required to answer; that the Appellant held the original log book as security to ensure full payment of the purchase price, therefore, the only reason the Appellant was still the registered owner of the subject motor vehicle was to ensure the full payment of the purchase price; that the Appellant has filed this Application without delay pending the filing of the Record of Appeal; that the 1st and 2nd Respondents will not suffer any prejudice if stay of execution is granted; that it is fair and just that the Appellant be granted stay pending the hearing and determination of the Appeal.
3. The 1 st Respondent herein swore a replying affidavit dated 14/11/2025 wherein she averred inter alia that the Appellant has already cleared the decretal sums as per the judgement dated 12/3/2025 hence the matter is fully settled and execution spent and hence the latest application is in bad faith and intended to delay the closure of the matter as the respective parties have been discharged from obligations under the decree and thus there is nothing to stay. Miss Achieng Yvonne, learned counsel for the 1 st and 2 nd Respondents filed a replying affidavit sworn on 14/11/2025 in response to the Appellant’s application aforesaid wherein she averred inter alia; that the Appellant’s conduct in this matter is the clearest example of abuse of court process, material non-disclosure and deliberate deception to obtain undeserved court orders; that the Appellant has already moved the trial court by way of an application seeking to set aside the impugned judgment and to be granted leave to defend the suit; that while that application is still pending, the appellant has again simultaneously approached this Honourable court seeking stay of execution and leave to appeal out of time; that the two applications seek entirely different and mutually exclusive reliefs, one premised on the setting aside of the judgment, and the other on the assumption that the same judgment stands and is now the subject of an intended appeal; that such conduct amounts to forum shopping and an abuse of the court process, as the applicant is attempting to pursue parallel remedies in two different fora arising from the same judgment; that a party cannot be permitted to litigate the same matter in multiple courts in the hope of securing a favourable outcome; that once the Appellant elected to seek the setting aside of the judgment before the trial court, he is bound by that choice and cannot, at the same time, invoke the appellate jurisdiction of this Court over the same decree; that judgment was duly entered in Siaya MCCC. No. E034 of 2022 on 12th March 2025 in favour of the 1st and 2nd Respondents, following full hearing and compliance with all procedural requirements and that a decree was extracted thereof; that the Appellant had been duly represented by J. K. Mwarandu & Co. Advocates, who was on record for the entirety of the proceedings and was receiving proper service of all court processes upto and including the judgment and assessment of costs; that upon delivery of the judgment and after pursuing the requisite post-judgment processes, the Appellant issued to us one current cheque and three post-dated cheques covering the decretal amount and taxed costs, acknowledging the judgment as final and binding; that the current cheque cleared, and the post-dated cheques are due for presentation on 08/12/2025, 07/01/2026 and 06/02/2026 to fully extinguish the judgment debt; that on 7th November 2025, the firm of Osoro Juma & Co. Advocates purported to file a Notice of Change of Advocates and an application in the trial court seeking to set aside the judgment of 12th March 2025 and be granted leave to defend the suit; that the Honourable Court declined to certify the matter as urgent and directed that the application be served upon the Respondents and that the same is coming up for mention to confirm filing of submissions on the 11th of December 2025 as can be seen from copies of the Application dated 3rd November 2025 and Court Order issued on 8th November 2025; that upon failing to obtain favourable directions in the trial court, the Appellant resorted to approach this Court by filing an application dated 7th November 2025 which this Honourable Court declined to certify as urgent and directed to be served upon the Respondents for directions on the 20th of November 2025 as can be seen from the annexed copies of the application dated 7th November 2025 and the Court Order issued on 10th November 2025; that on 11th November 2025, the Appellant filed a notice of withdrawal of the application dated 7th November 2025 without serving the 1st and 2nd Respondents and almost immediately thereafter filed a new, substantially similar application before this same court; that the Appellant has also sought leave to appeal out of time against the judgment delivered on 12th March 2025; that the issue of leave to appeal out of time has been overtaken by events, as the decretal sum and costs have already been fully satisfied by the Appellant and there is therefore no live dispute remaining to sustain such an appeal; that furthermore, the Appellant’s delay in seeking leave, coupled with their failure to fully defend the matter in the trial court despite being given several chances and their non-disclosure of payment, demonstrates a lack of clean hands and works against the grant of leave out of time; that it has been eight straight months since the judgment was delivered making the delay very inordinate in every sense of the word and no plausible explanation has been offered for it; that the timing, sequence and similarity of these two applications is suspect and demonstrates deliberate forum shopping and manipulation of the court process for the Appellant’s advantage, at the expense of the 1st and 2nd Respondents and the administration of justice in generally; that the said conduct constitutes blatant forum shopping and manipulation of the judicial process, done with the sole intent of evading the previous judicial findings that the earlier application, together with the one filed in the trial court, were not urgent; that in obtaining the said ex parte orders, the Appellant and its advocate deliberately failed to disclose to this Honourable Court that:
i. The judgment had already been fully satisfied by payment;
ii. There was an earlier identical application that had been declined for urgency; and
iii. They had made an application before the trial court seeking to have the matter re-opened and the Appellant allowed to defend the matter, application which is pending hearing and determination.
; that the said concealment was calculated to mislead this Honourable Court into granting ex parte stay orders that would never have been issued had the true facts been disclosed; that the Appellants shifting legal representation from Soni & Associates, to J. K. Mwarandu & Co. Advocates and now Osoro Juma & Co. Advocates, and filing multiple similar applications is clear evidence of bad faith and intent to obstruct execution of a lawful decree; that having voluntarily issued cheques in full satisfaction of the decree, the Appellant cannot now turn around to challenge the same judgment on grounds of "mistake of counsel" or "want of knowledge."; that equity aids the vigilant, not the indolent and the Appellant’s attempt to reopen a settled matter is a cynical afterthought undeserving of the court’s discretion; that further, having already satisfied the decree, the present application has been overtaken by events and the stay order now in force serves no purpose other than to frustrate the Respondents’ enjoyment of a judgment lawfully obtained; that the right to appeal cannot be used to trounce upon the Respondents’ right of enjoying their judgment, especially when it is evident that the Respondents followed all laid down procedures in obtaining the judgment; that the Respondents are entitled to equal treatment before the law and should therefore be given the opportunity to enjoy the fruits of the judgment; that granting the orders sought will cause the Respondent to suffer irreparable harm as it will just be another avenue of delaying the enjoyment of the fruits of the Respondents’ judgment in a matter that has been in court for 4 years; that she verily believe that this Honourable Court has been deliberately misled and the ex parte stay orders issued on 11th November 2025 ought to be vacated forthwith; that she further prays that the application dated 11th November 2025 be dismissed with costs to the 1st and 2nd Respondents for being incompetent, an abuse of the court process and for having been overtaken by events.
3. Appellant filed a further affidavit dated 24 th November, 2025 sworn and filed by the sales manager herein Nicholus Ngoli Inyangala wherein he averred inter alia; that the learned counsel for the 1 st and 2 nd Respondent did not avail evidence of authority to depose on the issue from her clients; that the allegations of forum shopping are false; that the Appellant seeks to cross-examine the deponent of the replying affidavit; that the 1 st and 2 nd Respondents did not take out letters of grant of the estate of Bonface Okoth Okello; that the decision of the trial court does not impede this court from granting orders sought; that the 1 st and 2 nd Respondents have all along known that the owner of the accident vehicle is the 3 rd Respondent and not the Appellant; that the 1 st and 2 nd Respondents are fearful that the impugned judgement might after all be overturned to their prejudice and hence the stiff opposition to the application; that the Appellant had sold the suit vehicle to the 3 rd Respondent on 2/11/2021.
4. The 1 st and 2 nd Respondents filed Preliminary Objection dated 23/11/2025 wherein they raised the following grounds; -
i) That the present proceedings are incompetent and fatally defective, the Appellant having improperly invoked appellate jurisdiction, the same having been filed within an appeal that is itself out of time and therefore a nullity ab initio.
ii) That the Appellant, having failed to file an appeal within the statutory period prescribed under section 79G of the Civil Procedure Act, could only seek extension of time by way of a stand-alone miscellaneous application, not within an appeal that has not been admitted in law.
iii) That there can be no competent application for stay of execution under Order 42 rule 6 of the Civil Procedure Rules in the absence of a competent, valid appeal. The foundation upon which the application is predicated is therefore non-existent.
iv) Consequently, this Honourable Court lacks jurisdiction to entertain an application seeking extension of time inside an appeal that is already incompetent as jurisdiction being everything, cannot be conferred by a pleading that is in itself void. Without jurisdiction the court must down its tools.
v) That the application is therefore incompetent ab initio, fatally defective and an abuse of the court process and should be struck out with costs to the 1st and 2nd Respondents.
REASONS WHEREFORE, the 1st and 2nd Respondents pray that the Appellant’s application dated 11th November 2025 be struck out with costs.
5. The application and preliminary objection was canvassed by written submission.
6. Learned counsel for the Appellant/Applicant raised two issues for determination namely, whether this Honourable Court has jurisdiction to entertain an application for enlargement of time to appeal where the appeal was filed out of time and whether the Appellant’s application is incompetent in law for seeking enlargement of time and stay of execution within the same motion.
7. As regards the first issue, it was submitted that the 1st and 2nd Respondents’ contention that this Honourable Court lacks jurisdiction because the appeal was filed out of time is legally untenable in that they have framed their Preliminary Objection as a jurisdictional challenge, arguing that the filing of an appeal out of time renders the entire proceedings a nullity and deprives this Honourable Court of jurisdiction. That the settled principle in Owners of the Motor Vessel “Lilian S” v Caltex Oil (Kenya) Ltd, where the Court held that jurisdiction is everything, and that without it a court must down its tools. The court held that:-
“A question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter was then obliged to decide the issue right away on thematerial before it. Jurisdiction was everything. Without it, a court had no power to make one more step. Where a court had no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downed tools in respect of the matter before it the moment it held the opinion that it was without jurisdiction."
It was submitted that in the present case, jurisdiction is expressly conferred upon this Honourable Court by Section 79G of the Civil Procedure Act which provides for the extension of time within which a party may file an appeal, subject to the court being satisfied that there is good cause for the delay. Section 79G of the Civil Procedure Act, 2010 provides that:-
"...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."
Further, Order 50 Rule 6 of the Civil Procedure Rules, which empowers the Court to enlarge time even after the prescribed period has expired. The 1st and 2nd Respondents’ argument ignores the plain wording and purpose of this provision. Order 50 Rule 6 of the Civil Procedure Rules, 2010 states:-
"Where a limited time has been fixed for doing any act or taking any proceedings under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed."
It was submitted that the power to enlarge time exists precisely to address situations where a party has defaulted in time, and it would be legally untenable to argue that the Court loses jurisdiction merely because time has lapsed. Lateness does not oust jurisdiction; it actually invokes the Court's discretion.
Further, in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others , the Supreme Court affirmed that extension of time is an equitable remedy, and that courts must consider factors such as the explanation for delay, the arguability of the appeal, and the interests of justice. These are matters that can only be considered once jurisdiction is established, which it clearly is in this case. The Supreme Court held that:-
"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; A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis; Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court; Whether there will be any prejudice suffered by the respondents if the extension is granted; Whether the application has been brought without undue delay."
It was submitted that in the present case, the delay has been candidly and sufficiently explained as having been occasioned by the inadvertence and procedural missteps of previous counsel, matters which were beyond the Appellant’s personal control and were not deliberate or intended to obstruct the course of justice. Crucially, the Appellant acted with promptitude immediately upon discovering the default, demonstrating diligence rather than indolence. Further, courts have held that mistakes by counsel can and do occur, and should not, without more, be visited upon an innocent litigant. No prejudice has been demonstrated by the 1st and 2nd Respondents. In the circumstances, the explanation tendered meets the threshold set by the Supreme Court, and this is a proper case for the Court to exercise its equitable discretion in favour of extending time in the interests of substantive justice.
The court went further to state that:-
"No appeal can be filed out of time without leave of the court. Such a filing renders the ‘document’ so filed a nullity and of no legal consequence. Consequently, this court will not accept a document filed out of time without leave of the court.....Where one intends to file an appeal out of time and seeks extension of time, the much he can do is to annex the draft intended petition of appeal for the court’s perusal when making his application for extension of time; and not to file an appeal and seek to legalize it."
It was also submitted that the 1st and 2nd Respondents’ assertion that the Appellant’s proceedings are a nullity on account of having “filed an appeal out of time” misconstrues the facts and the law. That the Appellant has not filed an appeal out of time, but has correctly approached this Honourable Court by filing an application seeking enlargement of time to appeal, which is precisely the recognized legal mechanism to obtain leave for filing an out-of-time appeal under Order 50 Rule 6 of the Civil Procedure Rules. That the application, supported by affidavit evidence, clearly sets out the reasons for delay, the arguable grounds of appeal, and the prayers for leave and stay, in full compliance with procedural requirements. That annexing a draft of the intended appeal is a proper practice to assist the Court in assessing whether the intended appeal is arguable and does not, in law, convert the application into an invalid or incompetent appeal. Accordingly, the application constitutes the seeking of leave itself and cannot be impugned as a nullity. That to strike out the application on the basis suggested by the Respondents would amount to elevating technical form over substantive justice and would unjustly deny the Appellant the opportunity to have the merits of the appeal considered. Article 159 (2)(d) of the Constitution clearly states that in administering justice one of the principles that shall guide the courts is that justice shall be administered without undue regard to procedural technicalities.
In conclusion, this Honourable Court clearly has jurisdiction to entertain the Appellant's application for enlargement of time. The application is properly brought under Order 50 Rule 6, which empowers the Court to extend time even after the prescribed period has lapsed, and is supported by evidence demonstrating the reasons for delay and the arguable nature of the intended appeal. That the Appellant has acted promptly and in good faith, and no prejudice arises to the Respondents. Consistent with the principles in the above discussed cases, the Court’s jurisdiction is properly invoked and must be exercised in the interests of justice. That the Preliminary Objection dated 23rd November 2025, on this ground is therefore wholly without merit and ought to be dismissed.
8. As regards the second issue, it was submitted that Order 42, rule 6 of the Civil Procedure Rules provides:-
(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 order set aside.
In the case of RWW v EKW KEHC 6523 (KLR), where there was an application seeking the following orders:-
(i) That this Court be pleased to extend the time for leave to appeal to 28 days from the date of Supply of Proceedings by the Court.
(ii) That this Court be pleased to grant Stay of Execution of the Judgment delivered on 15.12.2019 pending the hearing and determination of the Respondent/Applicant’s intended Appeal;
the Court observed, in paragraph 8 thereon that the purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs.
That court, in paragraph 12, further observed:-
It is not in dispute that the distribution of the assets the subject of the decision in the High Court was contested. The Applicant has demonstrated an intent to challenge that decision. In my view the Applicant will suffer substantial loss if he is forced to distribute the property 50:50 or sell them pending the intended appeal.
The court in paragraph 14 was of the view that substantial loss would be occasioned if the Judgment was executed at that stage and accordingly allowed the Respondent/Applicant an opportunity to pursue the appeal.
The following was the court’s determination:-
The Application dated 25.2.2019 is allowed on the following terms;
‘’(i) That the time for leave to appeal be extended to 28 days from the date of supply of proceedings.
(ii) That Stay of Execution be and is hereby granted pending the Appeal.’’
It was submitted that nothing bars this honourable court from granting a stay at this stage. Indeed, in the current case, substantial loss will be occasioned upon the Applicant as its property will be sold in execution of the decree herein when it had nothing to do with the accident in question for reason that it had sold the same to the 3rd Respondent as at the time of the accident in question. Considering that the Constitution protects the Appellant from arbitrary deprivation of property by dint of Article 40 thereon, to allow the sale of its properties in execution of the decree herein would be a travesty of justice, and this court will have been used by the 1st and 2nd Respondents to execute jungle rules which is frowned upon by courts.
In Gusii Mwalimu Investment Co Ltd vs Mwalimu Hotel Kisii Ltd, eKLR the Court of Appeal while addressing the right of a landlord to re-entry had this to say: -
"To obtain possession by carrying out illegal distress is per se wrong, if what the landlord did in the case is allowed to happen, we will reach a situation where the landlord will simply walk into the demised premises exercising his right of re-entry and obtaining possession extrajudicially.
A court of law cannot allow such state of affairs whereby the law of the jungle takes over. It is a trite law that unless a tenant consents or agrees to give possessions, the landlord has to obtain all orders from a competent court or statutory tribunal (as appreciate) to obtain an order for possession"
It was submitted that in the foregoing case, the landlord despite having a right of re-entry, had to go about it in accordance with the law. Let us not go into the issues of the pending appeal. However, learned counsel urged the court to take caution of the fact that one believes they have a right does not mean infringing on other peoples’ rights. That one cannot go attaching the properties of every passerby just because they have a case.
It was also submitted that as to whether the Appellant’s application is incompetent in law for seeking enlargement of time and stay of execution within the same motion, the 1st and 2nd Respondents argue that the Appellant’s application is incompetent because it seeks both enlargement of time and stay of execution in the same motion and that an appeal cannot be filed out of time without leave, rendering any document filed beyond time a nullity. With respect, this contention is misplaced in law and fact.
It was contended by the Appellant that it has not filed an appeal out of time but has filed a proper application seeking enlargement of time to appeal. An application for extension of time is the recognized and lawful mechanism for seeking leave to appeal out of time, as repeatedly applied by Kenyan courts. In Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others , the Supreme Court underscored that extension of time is an equitable remedy, not a right, and that a party seeking it must lay a basis that satisfies the Court that the reasons for delay are reasonable, that the application is made without undue delay, and that the respondents will not be prejudiced. The court held that:-
"Extension of time being a creature of equity, one could only enjoy it if he acted equitably: he who seeks equity must do equity. Hence, one had to lay a basis that he was not at fault so as to let time to lapse. Extension of time was not a right of a litigant against a court, but a discretionary power of the courts for which litigants had to lay a basis where they sought to invoke the courts’ discretion to grant it."
Furthermore, Kenyan Courts have repeatedly entertained applications for extension of time where the delay arose from oversight or error by counsel and where the intended appeal raises substantive issues meriting consideration. In Sokoro Savings and Credit Co-oper
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JUDGEMENT
1. The Appellant filed the present application dated 11/11/2025 seeking the following orders; -
i) Spent.
ii) That this Honourable Court be pleased to enlarge the time within which the Appellant may appeal against the Judgement entered on the 12th day of March 2025.
iii) That this Honourable Court do grant leave to the Appellant to file and prosecute the intended appeal out of time.
iv) That this Honourable Court be pleased to order for stay of execution of the Judgment entered on the 12th day of March 2025 against the Appellant pending the hearing and determination of the appeal.
v) That pending the hearing and determination of this application for stay, an interim order of stay of execution of the Orders made on the 12th day of March 2025 against the Appellant be and is hereby granted.
vi) That costs of this application be provided for.
2. The application is supported by the grounds set out thereunder and by the supporting affidavit of the Appellant’s sales manager sworn on even date. The Appellant’s gravamen is inter alia; that the Appellant/Applicant is aggrieved by the entire Judgement of the Chief Magistrates Court at Siaya by Hon. Limo B. Benjamin dated 12th March 2025 in MCCC E34 OF 2022, and appeals against it; that this Application is urgent and needs to be heard immediately as the 1st and 2nd Respondents might execute the Judgement herein; that the 1st and 2nd Respondents conduct is indicative of their intentions to execute the judgment herein; that the Appellant has reasonable cause to believe that the auctioneers intend on selling the subject motor vehicle in the course of next week; that the auctioneers have issued the Appellant with Warrants of Attachment of movable property, Warrants of Sale of property in execution for decree for money, and Proclamation of Attachment of Movable Property; that the Appellant has an arguable Appeal with good prospects of success; that the Appellant’s failure to comply with the trial court’s earlier directions was not deliberate or intended to obstruct the course of justice, but arose from circumstances beyond its control as it was notified of the same by Soni & Associates Advocates LLP; that the failure arose from the inadvertence of the Appellant’s previous counsel and the mistakes of counsel should not be visited upon the litigant, particularly where no deliberate disregard of court orders is demonstrated; that the Appellant is ready and willing to deposit half the decretal sum as security; that the Judgement subject matter herein being substantial, should execution proceed, the Appellant stands to suffer irreparable loss and prejudice; that the Appellant sold Motor Vehicle Registration Number KDE 776H to one LEAH ATIENO OGOLLA, the 3rd Respondent herein, vide a Sale Agreement made on the 2nd day of November 2021 for the purchase price of Kshs. 1,150,000/-; that the 3rd Respondent had paid a deposit of Kshs. 360,000/- upon execution of the Sale Agreement dated 2nd November 2021 and took possession of Motor Vehicle Registration Number KDE 776H; that under the afore-mentioned agreement, LEAH ATIENO OGOLLA was to pay the balance of Kshs. 790,000/- in monthly installments of Kshs. 43,889/- for eighteen (18) months; that as at the time of the accident in question, the 3rd Respondent, LEAH ATIENO OGOLLA, was still paying the monthly installments and was in actual possession of Motor Vehicle Registration Number KDE 776H; that as per Clause 8 Sale Agreement dated 2nd November 2021, in event of any liability or claim, arising during the subsistence of that agreement in respect of the motor vehicle in question, the hirer shall be 100% accountable and did guarantee the owners that condition shall be faithfully complied with in the event of any eventuality. Additionally, that covenant was to be pleaded as defense to any claim the owners may be required to answer; that the Appellant held the original log book as security to ensure full payment of the purchase price, therefore, the only reason the Appellant was still the registered owner of the subject motor vehicle was to ensure the full payment of the purchase price; that the Appellant has filed this Application without delay pending the filing of the Record of Appeal; that the 1st and 2nd Respondents will not suffer any prejudice if stay of execution is granted; that it is fair and just that the Appellant be granted stay pending the hearing and determination of the Appeal.
3. The 1 st Respondent herein swore a replying affidavit dated 14/11/2025 wherein she averred inter alia that the Appellant has already cleared the decretal sums as per the judgement dated 12/3/2025 hence the matter is fully settled and execution spent and hence the latest application is in bad faith and intended to delay the closure of the matter as the respective parties have been discharged from obligations under the decree and thus there is nothing to stay. Miss Achieng Yvonne, learned counsel for the 1 st and 2 nd Respondents filed a replying affidavit sworn on 14/11/2025 in response to the Appellant’s application aforesaid wherein she averred inter alia; that the Appellant’s conduct in this matter is the clearest example of abuse of court process, material non-disclosure and deliberate deception to obtain undeserved court orders; that the Appellant has already moved the trial court by way of an application seeking to set aside the impugned judgment and to be granted leave to defend the suit; that while that application is still pending, the appellant has again simultaneously approached this Honourable court seeking stay of execution and leave to appeal out of time; that the two applications seek entirely different and mutually exclusive reliefs, one premised on the setting aside of the judgment, and the other on the assumption that the same judgment stands and is now the subject of an intended appeal; that such conduct amounts to forum shopping and an abuse of the court process, as the applicant is attempting to pursue parallel remedies in two different fora arising from the same judgment; that a party cannot be permitted to litigate the same matter in multiple courts in the hope of securing a favourable outcome; that once the Appellant elected to seek the setting aside of the judgment before the trial court, he is bound by that choice and cannot, at the same time, invoke the appellate jurisdiction of this Court over the same decree; that judgment was duly entered in Siaya MCCC. No. E034 of 2022 on 12th March 2025 in favour of the 1st and 2nd Respondents, following full hearing and compliance with all procedural requirements and that a decree was extracted thereof; that the Appellant had been duly represented by J. K. Mwarandu & Co. Advocates, who was on record for the entirety of the proceedings and was receiving proper service of all court processes upto and including the judgment and assessment of costs; that upon delivery of the judgment and after pursuing the requisite post-judgment processes, the Appellant issued to us one current cheque and three post-dated cheques covering the decretal amount and taxed costs, acknowledging the judgment as final and binding; that the current cheque cleared, and the post-dated cheques are due for presentation on 08/12/2025, 07/01/2026 and 06/02/2026 to fully extinguish the judgment debt; that on 7th November 2025, the firm of Osoro Juma & Co. Advocates purported to file a Notice of Change of Advocates and an application in the trial court seeking to set aside the judgment of 12th March 2025 and be granted leave to defend the suit; that the Honourable Court declined to certify the matter as urgent and directed that the application be served upon the Respondents and that the same is coming up for mention to confirm filing of submissions on the 11th of December 2025 as can be seen from copies of the Application dated 3rd November 2025 and Court Order issued on 8th November 2025; that upon failing to obtain favourable directions in the trial court, the Appellant resorted to approach this Court by filing an application dated 7th November 2025 which this Honourable Court declined to certify as urgent and directed to be served upon the Respondents for directions on the 20th of November 2025 as can be seen from the annexed copies of the application dated 7th November 2025 and the Court Order issued on 10th November 2025; that on 11th November 2025, the Appellant filed a notice of withdrawal of the application dated 7th November 2025 without serving the 1st and 2nd Respondents and almost immediately thereafter filed a new, substantially similar application before this same court; that the Appellant has also sought leave to appeal out of time against the judgment delivered on 12th March 2025; that the issue of leave to appeal out of time has been overtaken by events, as the decretal sum and costs have already been fully satisfied by the Appellant and there is therefore no live dispute remaining to sustain such an appeal; that furthermore, the Appellant’s delay in seeking leave, coupled with their failure to fully defend the matter in the trial court despite being given several chances and their non-disclosure of payment, demonstrates a lack of clean hands and works against the grant of leave out of time; that it has been eight straight months since the judgment was delivered making the delay very inordinate in every sense of the word and no plausible explanation has been offered for it; that the timing, sequence and similarity of these two applications is suspect and demonstrates deliberate forum shopping and manipulation of the court process for the Appellant’s advantage, at the expense of the 1st and 2nd Respondents and the administration of justice in generally; that the said conduct constitutes blatant forum shopping and manipulation of the judicial process, done with the sole intent of evading the previous judicial findings that the earlier application, together with the one filed in the trial court, were not urgent; that in obtaining the said ex parte orders, the Appellant and its advocate deliberately failed to disclose to this Honourable Court that:
i. The judgment had already been fully satisfied by payment;
ii. There was an earlier identical application that had been declined for urgency; and
iii. They had made an application before the trial court seeking to have the matter re-opened and the Appellant allowed to defend the matter, application which is pending hearing and determination.
; that the said concealment was calculated to mislead this Honourable Court into granting ex parte stay orders that would never have been issued had the true facts been disclosed; that the Appellants shifting legal representation from Soni & Associates, to J. K. Mwarandu & Co. Advocates and now Osoro Juma & Co. Advocates, and filing multiple similar applications is clear evidence of bad faith and intent to obstruct execution of a lawful decree; that having voluntarily issued cheques in full satisfaction of the decree, the Appellant cannot now turn around to challenge the same judgment on grounds of "mistake of counsel" or "want of knowledge."; that equity aids the vigilant, not the indolent and the Appellant’s attempt to reopen a settled matter is a cynical afterthought undeserving of the court’s discretion; that further, having already satisfied the decree, the present application has been overtaken by events and the stay order now in force serves no purpose other than to frustrate the Respondents’ enjoyment of a judgment lawfully obtained; that the right to appeal cannot be used to trounce upon the Respondents’ right of enjoying their judgment, especially when it is evident that the Respondents followed all laid down procedures in obtaining the judgment; that the Respondents are entitled to equal treatment before the law and should therefore be given the opportunity to enjoy the fruits of the judgment; that granting the orders sought will cause the Respondent to suffer irreparable harm as it will just be another avenue of delaying the enjoyment of the fruits of the Respondents’ judgment in a matter that has been in court for 4 years; that she verily believe that this Honourable Court has been deliberately misled and the ex parte stay orders issued on 11th November 2025 ought to be vacated forthwith; that she further prays that the application dated 11th November 2025 be dismissed with costs to the 1st and 2nd Respondents for being incompetent, an abuse of the court process and for having been overtaken by events.
3. Appellant filed a further affidavit dated 24 th November, 2025 sworn and filed by the sales manager herein Nicholus Ngoli Inyangala wherein he averred inter alia; that the learned counsel for the 1 st and 2 nd Respondent did not avail evidence of authority to depose on the issue from her clients; that the allegations of forum shopping are false; that the Appellant seeks to cross-examine the deponent of the replying affidavit; that the 1 st and 2 nd Respondents did not take out letters of grant of the estate of Bonface Okoth Okello; that the decision of the trial court does not impede this court from granting orders sought; that the 1 st and 2 nd Respondents have all along known that the owner of the accident vehicle is the 3 rd Respondent and not the Appellant; that the 1 st and 2 nd Respondents are fearful that the impugned judgement might after all be overturned to their prejudice and hence the stiff opposition to the application; that the Appellant had sold the suit vehicle to the 3 rd Respondent on 2/11/2021.
4. The 1 st and 2 nd Respondents filed Preliminary Objection dated 23/11/2025 wherein they raised the following grounds; -
i) That the present proceedings are incompetent and fatally defective, the Appellant having improperly invoked appellate jurisdiction, the same having been filed within an appeal that is itself out of time and therefore a nullity ab initio.
ii) That the Appellant, having failed to file an appeal within the statutory period prescribed under section 79G of the Civil Procedure Act, could only seek extension of time by way of a stand-alone miscellaneous application, not within an appeal that has not been admitted in law.
iii) That there can be no competent application for stay of execution under Order 42 rule 6 of the Civil Procedure Rules in the absence of a competent, valid appeal. The foundation upon which the application is predicated is therefore non-existent.
iv) Consequently, this Honourable Court lacks jurisdiction to entertain an application seeking extension of time inside an appeal that is already incompetent as jurisdiction being everything, cannot be conferred by a pleading that is in itself void. Without jurisdiction the court must down its tools.
v) That the application is therefore incompetent ab initio, fatally defective and an abuse of the court process and should be struck out with costs to the 1st and 2nd Respondents.
REASONS WHEREFORE, the 1st and 2nd Respondents pray that the Appellant’s application dated 11th November 2025 be struck out with costs.
5. The application and preliminary objection was canvassed by written submission.
6. Learned counsel for the Appellant/Applicant raised two issues for determination namely, whether this Honourable Court has jurisdiction to entertain an application for enlargement of time to appeal where the appeal was filed out of time and whether the Appellant’s application is incompetent in law for seeking enlargement of time and stay of execution within the same motion.
7. As regards the first issue, it was submitted that the 1st and 2nd Respondents’ contention that this Honourable Court lacks jurisdiction because the appeal was filed out of time is legally untenable in that they have framed their Preliminary Objection as a jurisdictional challenge, arguing that the filing of an appeal out of time renders the entire proceedings a nullity and deprives this Honourable Court of jurisdiction. That the settled principle in Owners of the Motor Vessel “Lilian S” v Caltex Oil (Kenya) Ltd, where the Court held that jurisdiction is everything, and that without it a court must down its tools. The court held that:-
“A question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter was then obliged to decide the issue right away on thematerial before it. Jurisdiction was everything. Without it, a court had no power to make one more step. Where a court had no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downed tools in respect of the matter before it the moment it held the opinion that it was without jurisdiction."
It was submitted that in the present case, jurisdiction is expressly conferred upon this Honourable Court by Section 79G of the Civil Procedure Act which provides for the extension of time within which a party may file an appeal, subject to the court being satisfied that there is good cause for the delay. Section 79G of the Civil Procedure Act, 2010 provides that:-
"...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."
Further, Order 50 Rule 6 of the Civil Procedure Rules, which empowers the Court to enlarge time even after the prescribed period has expired. The 1st and 2nd Respondents’ argument ignores the plain wording and purpose of this provision. Order 50 Rule 6 of the Civil Procedure Rules, 2010 states:-
"Where a limited time has been fixed for doing any act or taking any proceedings under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed."
It was submitted that the power to enlarge time exists precisely to address situations where a party has defaulted in time, and it would be legally untenable to argue that the Court loses jurisdiction merely because time has lapsed. Lateness does not oust jurisdiction; it actually invokes the Court's discretion.
Further, in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others , the Supreme Court affirmed that extension of time is an equitable remedy, and that courts must consider factors such as the explanation for delay, the arguability of the appeal, and the interests of justice. These are matters that can only be considered once jurisdiction is established, which it clearly is in this case. The Supreme Court held that:-
"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; A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis; Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court; Whether there will be any prejudice suffered by the respondents if the extension is granted; Whether the application has been brought without undue delay."
It was submitted that in the present case, the delay has been candidly and sufficiently explained as having been occasioned by the inadvertence and procedural missteps of previous counsel, matters which were beyond the Appellant’s personal control and were not deliberate or intended to obstruct the course of justice. Crucially, the Appellant acted with promptitude immediately upon discovering the default, demonstrating diligence rather than indolence. Further, courts have held that mistakes by counsel can and do occur, and should not, without more, be visited upon an innocent litigant. No prejudice has been demonstrated by the 1st and 2nd Respondents. In the circumstances, the explanation tendered meets the threshold set by the Supreme Court, and this is a proper case for the Court to exercise its equitable discretion in favour of extending time in the interests of substantive justice.
The court went further to state that:-
"No appeal can be filed out of time without leave of the court. Such a filing renders the ‘document’ so filed a nullity and of no legal consequence. Consequently, this court will not accept a document filed out of time without leave of the court.....Where one intends to file an appeal out of time and seeks extension of time, the much he can do is to annex the draft intended petition of appeal for the court’s perusal when making his application for extension of time; and not to file an appeal and seek to legalize it."
It was also submitted that the 1st and 2nd Respondents’ assertion that the Appellant’s proceedings are a nullity on account of having “filed an appeal out of time” misconstrues the facts and the law. That the Appellant has not filed an appeal out of time, but has correctly approached this Honourable Court by filing an application seeking enlargement of time to appeal, which is precisely the recognized legal mechanism to obtain leave for filing an out-of-time appeal under Order 50 Rule 6 of the Civil Procedure Rules. That the application, supported by affidavit evidence, clearly sets out the reasons for delay, the arguable grounds of appeal, and the prayers for leave and stay, in full compliance with procedural requirements. That annexing a draft of the intended appeal is a proper practice to assist the Court in assessing whether the intended appeal is arguable and does not, in law, convert the application into an invalid or incompetent appeal. Accordingly, the application constitutes the seeking of leave itself and cannot be impugned as a nullity. That to strike out the application on the basis suggested by the Respondents would amount to elevating technical form over substantive justice and would unjustly deny the Appellant the opportunity to have the merits of the appeal considered. Article 159 (2)(d) of the Constitution clearly states that in administering justice one of the principles that shall guide the courts is that justice shall be administered without undue regard to procedural technicalities.
In conclusion, this Honourable Court clearly has jurisdiction to entertain the Appellant's application for enlargement of time. The application is properly brought under Order 50 Rule 6, which empowers the Court to extend time even after the prescribed period has lapsed, and is supported by evidence demonstrating the reasons for delay and the arguable nature of the intended appeal. That the Appellant has acted promptly and in good faith, and no prejudice arises to the Respondents. Consistent with the principles in the above discussed cases, the Court’s jurisdiction is properly invoked and must be exercised in the interests of justice. That the Preliminary Objection dated 23rd November 2025, on this ground is therefore wholly without merit and ought to be dismissed.
8. As regards the second issue, it was submitted that Order 42, rule 6 of the Civil Procedure Rules provides:-
(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 order set aside.
In the case of RWW v EKW KEHC 6523 (KLR), where there was an application seeking the following orders:-
(i) That this Court be pleased to extend the time for leave to appeal to 28 days from the date of Supply of Proceedings by the Court.
(ii) That this Court be pleased to grant Stay of Execution of the Judgment delivered on 15.12.2019 pending the hearing and determination of the Respondent/Applicant’s intended Appeal;
the Court observed, in paragraph 8 thereon that the purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs.
That court, in paragraph 12, further observed:-
It is not in dispute that the distribution of the assets the subject of the decision in the High Court was contested. The Applicant has demonstrated an intent to challenge that decision. In my view the Applicant will suffer substantial loss if he is forced to distribute the property 50:50 or sell them pending the intended appeal.
The court in paragraph 14 was of the view that substantial loss would be occasioned if the Judgment was executed at that stage and accordingly allowed the Respondent/Applicant an opportunity to pursue the appeal.
The following was the court’s determination:-
The Application dated 25.2.2019 is allowed on the following terms;
‘’(i) That the time for leave to appeal be extended to 28 days from the date of supply of proceedings.
(ii) That Stay of Execution be and is hereby granted pending the Appeal.’’
It was submitted that nothing bars this honourable court from granting a stay at this stage. Indeed, in the current case, substantial loss will be occasioned upon the Applicant as its property will be sold in execution of the decree herein when it had nothing to do with the accident in question for reason that it had sold the same to the 3rd Respondent as at the time of the accident in question. Considering that the Constitution protects the Appellant from arbitrary deprivation of property by dint of Article 40 thereon, to allow the sale of its properties in execution of the decree herein would be a travesty of justice, and this court will have been used by the 1st and 2nd Respondents to execute jungle rules which is frowned upon by courts.
In Gusii Mwalimu Investment Co Ltd vs Mwalimu Hotel Kisii Ltd, eKLR the Court of Appeal while addressing the right of a landlord to re-entry had this to say: -
"To obtain possession by carrying out illegal distress is per se wrong, if what the landlord did in the case is allowed to happen, we will reach a situation where the landlord will simply walk into the demised premises exercising his right of re-entry and obtaining possession extrajudicially.
A court of law cannot allow such state of affairs whereby the law of the jungle takes over. It is a trite law that unless a tenant consents or agrees to give possessions, the landlord has to obtain all orders from a competent court or statutory tribunal (as appreciate) to obtain an order for possession"
It was submitted that in the foregoing case, the landlord despite having a right of re-entry, had to go about it in accordance with the law. Let us not go into the issues of the pending appeal. However, learned counsel urged the court to take caution of the fact that one believes they have a right does not mean infringing on other peoples’ rights. That one cannot go attaching the properties of every passerby just because they have a case.
It was also submitted that as to whether the Appellant’s application is incompetent in law for seeking enlargement of time and stay of execution within the same motion, the 1st and 2nd Respondents argue that the Appellant’s application is incompetent because it seeks both enlargement of time and stay of execution in the same motion and that an appeal cannot be filed out of time without leave, rendering any document filed beyond time a nullity. With respect, this contention is misplaced in law and fact.
It was contended by the Appellant that it has not filed an appeal out of time but has filed a proper application seeking enlargement of time to appeal. An application for extension of time is the recognized and lawful mechanism for seeking leave to appeal out of time, as repeatedly applied by Kenyan courts. In Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others , the Supreme Court underscored that extension of time is an equitable remedy, not a right, and that a party seeking it must lay a basis that satisfies the Court that the reasons for delay are reasonable, that the application is made without undue delay, and that the respondents will not be prejudiced. The court held that:-
"Extension of time being a creature of equity, one could only enjoy it if he acted equitably: he who seeks equity must do equity. Hence, one had to lay a basis that he was not at fault so as to let time to lapse. Extension of time was not a right of a litigant against a court, but a discretionary power of the courts for which litigants had to lay a basis where they sought to invoke the courts’ discretion to grant it."
Furthermore, Kenyan Courts have repeatedly entertained applications for extension of time where the delay arose from oversight or error by counsel and where the intended appeal raises substantive issues meriting consideration. In Sokoro Savings and Credit Co-oper
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