Introduction
1. The application dated 4th July, 2025 seeks orders of stay of implementation and execution of the judgment delivered on 9th December, 2024 in Kabarnet SPM ELC Case No. 43 of 2020 and leave to appeal out of time.
2. As can be discerned from the averments in the affidavit sworn by the applicant on 4th July 2025, the application is premised on the grounds that the judgment delivered on 9th December, 2024 was delivered without notice; that the applicant learnt about the judgement on 7th February, 2025 after he wrote a letter to court to establish the status of the file; that upon learning of the judgement, he immediately instructed his advocate to file an appeal but unfortunately time to file the appeal had lapsed; that he filed the application dated 12th February, 2025 seeking an order of stay and leave to appeal out of time. He avers that his appeal is meritorious with a high chance of success and that he has been in occupation of the suit property since 2015.
3. In reply and opposition to the application, the respondents filed a replying affidavit dated 14th July, 2025 sworn by Richard Kiplawat Chemjor who avers that upon delivery of the judgement, execution of the judgement was stayed by 30 days; that the applicant failed to lodge an appeal within the statutory period; that the applicant failed to exercise due diligence to check on the progress of the case with the aid of the electronic filing system; that the draft memorandum of appeal raises no triable issues; that no substantial loss has been demonstrated by the applicant and that the application is an afterthought triggered by the bill of costs filed by the respondent. It is his contention that the application dated 12th February, 2025 is similar to the present application therefore the intended appeal is an academic exercise.
4. Pursuant to directions given on 17th July, 2025 the application was disposed of by way of written submissions.
SUBMISSIONS
Applicant’s submissions
5. In his submissions dated 4th August, 2025 the applicant identified two issues for determination namely;
i)Whether the applicant should be granted leave to file an appeal out of time;
ii) Whether the applicant should be granted stay of execution pending the intended appeal.
6. On whether the applicant should be granted leave to file an appeal out of time, the applicant submitted 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 on time. He gave the reason for failing to file the appeal on time as failure by the court to notify him of the date of delivery of judgement. As a result, he learnt of the judgement two months later when time to file an appeal had lapsed. It is his contention that the intended appeal is arguable with high chances of success and given a chance, he will be able to demonstrate how he acquired the suit property. He relied on the cases of Kiprop & 2 Others v Korir & 2 Others (Miscellaneous Civil Application E005 OF 2022) [2022] and Kangai v Nyomba & another (Environment & Land Miscellaneous Case E003 of 2024) [2024], Thulite Mwangi v Kenya Airways Ltd [2003] eKLR, Nicholas Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2015] eKLR, Nairobi Civil Appeal No. 604 of 2018 Safaricom Sacco Limited v Stephen Chorio Kiai & another [2019] eKLR.
7. On whether the applicant should be granted an order staying implementation and execution of the judgment delivered on 9th December, 2024 pending the intended appeal, the applicant submitted that he had fulfilled the conditions set out in Order 42 Rule 6(2) of the Civil Procedure Rules.
8. On delay, he submitted that the delay was caused by the court failing to inform him of the date for delivery of the judgement; that he learnt about the judgement two months after its delivery.
9. On substantial loss, he submitted that if the orders sought are not granted, he risks being evicted from the suit property where he has resided and reared livestock since 2015. He relied on the cases of Felix Kipchoge Limo Langat v Robinson Kipgat Tuwei [2018] eKLR, Consolidated Marine v Nampijja & Another, Civil App. No 93 of 1989 (Nairobi, and Nairobi Civil Application No. 352 of 2009 Beth Kaari & Prudence Mukiri v M’rimunya [2010] eKLR and urged the court to allow the application in order to safeguard the substratum of the suit and give him the opportunity to ventilate his appeal.
10. On security for costs, he submitted that he is ready to abide by any terms the court may impose and relied on the cases of David Oyiare Ntungani v Matuiya Ole Naisaku Orket [2017] eKLR and Kiplagat Kotut v Rose Jebor Kipngok [2015] eKLR.
11. At the time of writing this ruling, the respondents had not filed submissions.
Analysis and determination
12. Having considered the history of this case, the ruling of the lower court, the application, response and submissions by the applicant, I find the issues for determination to be;
i) Whether the subordinate court has jurisdiction to extend time to file an appeal;
ii) Whether the application is resjudicata;
iii) Whether the orders for stay of implementation and execution of the judgment should be granted.
iv) What orders should the court issue?
13. It is not in dispute that similar orders to those sought in the instant application were sought in the application dated 12th February, 2025. It is notable that the only addition to the instant application is the draft memorandum of appeal annexed. In dismissing the application filed in the lower court, the trial magistrate stated;
“On the ground as to whether the Applicant would suffer substantial loss. The suit by the plaintiff was dismissed and the counterclaim by the defendant upheld. The suit land is registered in the name of the defendant and the plaintiff sought to have the title deed cancelled. I find that the plaintiff/Applicant will not suffer substantial loss. Any loss occasioned can be compensated by way of damages.
There was no damages awarded in this suit and therefore the court cannot order for the deposit of security for costs.
On the prayer for enlargement of time to file appeal, the extension of time is a discretionary power……………………………………………………………
The Plaintiff/Applicant seeks the enlargement of time to file an intended appeal. The plaintiff did not attach a draft memorandum of appeal to buttress their intention to appeal against the decision of the court. I find that I cannot exercise my discretion to enlarge the time to file appeal out of time.”
14. The letter of the law, particularly Section 79G of the Civil Procedure Act, speaks about admission of appeal out of time which action can only be under taken by the appellate court. This leads to the conclusion that a subordinate court lacks jurisdiction to entertain an application for extension of time to file an appeal. It is also notable that one of the factors the court considers in such an application is whether the intended appeal is arguable which factor the court appealed from may not be competent to determine. In applying the law to the circumstances of this case, it is my considered view that the trial magistrate did not have jurisdiction to entertain the prayer for enlargement of time to file an intended appeal.
15. On whether the instant application is res judicata the application filed before the lower court, for res judicata to apply, a matter must be determined by a competent court. Having found that a subordinate court does not have jurisdiction to determine a prayer for enlargement of time to file an intended appeal, res judicata cannot apply in these circumstances and for that reason, I will proceed to consider the prayer for enlargement of time on its merit.
16. Section 79G of the Civil Procedure Act provides;
“Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order: 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.”
17. The Supreme Court of Kenya in the case of Nicholas Kiptoo Arap Korir Salat vs. IEBC & 7 others, SC Appl 16/2014 (2014) Eklr, laid down the following principles to guide courts while considering whether to exercise discretion in granting leave to file an appeal out of time. The court stated;
“(i) Extension of time is not a right of a party. It is equitable remedy that is available to a deserving party at the discretion of the court;
(ii) The party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;
(iii) As to whether the court should exercise the discretion to extend time, is a consideration to be made a case by case basis;
(iv) Whether there is a reason for the delay; the delay should be explained to the satisfaction of the court;
(v) Whether there will be any prejudice to be suffered by the respondents if the extension is granted;
(vi)The application should have been brought without undue delay; and
(vii)In certain cases, like election petitions, public interest should be a consideration for extending time.”
18. In the application filed before the lower court, there was a delay of 65 calendar days from the date of delivery of the judgment to the date of filing of the application and a delay of 207 days in filing the instant application. The delay is said to have been caused by lack of information that the judgment had been delivered on 9th December, 2024. From the case tracking system, judgment was published on 14th January, 2025 around 9:09 a.m. Going by the date when the judgement was published, there is a likelihood that the applicant learnt of the judgment after 14th January, 2025 prompting filing of the application dated 12th February, 2025.
19. The overriding objective under Section 1A and 1B of the Civil Procedure Act and the inherent power of the court under Section 3A are meant for the attainment of justice to the parties who come to court. Juxtaposing the facts of the case, applicable legal provisions and circumstances of the case, I find the explanation given for the delay although inordinate, to be reasonable and justified.
20. In exercising the discretion whether or not to extend time to file an appeal, the court has to satisfied that the appeal is arguable. The applicant has annexed a memorandum of appeal to the application. Having read and considered the judgement and the memorandum of appeal and taking into consideration the reason behind the requirement that there be in existence an appeal for the court to consider has been met, l am satisfied that the intended appeal is arguable. I am also guided by the case of Kenya Commercial Bank v Nicholas Ombija (2009) where the court held; “An arguable appeal must not necessarily succeed but one which ought to be argued fully before the court,”
21. On whether the orders staying implementation and execution of the judgment should be granted, Order 42 Rule 6 of the Civil Procedure Rules vests concurrent jurisdiction on both the trial court and the appellate court to hear and determine applications for stay of execution. The prayer for stay of execution was sought in the application dated 14th February, 2025. The trial court considered the prayer on its merits and declined to grant the order sought. Under normal circumstances, a prayer that has been considered and determined on its merits and an order issued if sought again, would be resjudicata. However, there are exceptions to the resjudicata doctrine. Under Order 42 rule 6 of the Civil Procedure Rules, a party that had filed an application for stay of execution in the trial court is entitled to bring a fresh application to the appellate court as held in the case of Mahugu v Kipchumba & 37 others; Kipkosgei (cross appellant) [2024] Eklr.
“Of the two, the exception that applies in the instant case is that there are special circumstances warranting the court to make an exception. This exception applies because the doctrine of res judicata is expressly precluded by statute from application. More particularly, Order 42 Rule 6 expressly provides that: - “…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…”
From the above provision, it is clear that despite the fact that the application for stay pending appeal was determined by the trial court, the Cross-Appellant is entitled to bring a fresh application to this appellate court for grant of an order of stay of execution pending appeal. This is because under Order 42 Rule 6, the earlier application in the trial court is no bar to his bringing another application for stay in this court”
Also see the case of John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others [2021] Eklr, where the court held;
“ We however propose to set some parameters that a party seeking to have a court give an exemption to the application of the doctrine of res judicata. The first is where there is potential for substantial injustice if a court does not hear a constitutional matter or issue on its merits. It is our considered opinion that before a court can arrive at such a conclusion, it must examine the entirety of the circumstances as well address the factors for and against exercise of such discretionary power. In the alternative a litigant must demonstrate special circumstances warranting the court to make an exception.”
22. To be granted an order of stay of execution of a judgement under Order 42 6 (2) of the Civil Procedure Rules, an applicant should demonstrate;
“a) That substantial loss may result unless the order is made and that the application has been made without unreasonable delay; and
b) Furnish such security as the court may order for the due performance of such decree or order as may ultimately be binding on him.”
23. On whether the applicant will suffer substantial loss if the order sought is not granted, the applicant has stated that he is in occupation of the suit property and is in danger of being evicted if the orders sought are not granted. The trial court found the plaintiff to be a trespasser on Baringo/Sawala/2715 and issued an order restraining him, his servants and or agents from trespassing, alienating, dealing with and or interfering with the aforesaid parcel of land. The respondents have a right to execute the judgement and if they proceed to do so, there is likelihood that the applicant who has been in occupation of the suit property will be evicted if the orders sought are not granted. I am guided by the case of RWW Vs. EKW (2019), eKLR where the court held; “…the purpose of an application for stay of execution pending appeal is to preserve the subject matter in dispute so that 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”.
24. On whether there was delay in bring the application, I find there was inordinate delay in bringing the instant application. The law does not set out any minimum or maximum period of delay. All it states is that any delay should be satisfactorily explained. In my view, the applicant has given a valid and clear reason for the delay which this court finds to be satisfactory.
25. As regards the requirement for security for the due performance of such decree or order as may ultimately be binding on the applicant, the applicant has expressed willingness to furnish such security as may be ordered by the court and is ready to abide by any conditions set.
26. In the end, I am inclined to allow prayers 3 and 4 in the application on the following conditions: -
(i) The applicant shall within 21 days of delivery of this ruling deposit in court Kshs. 250,000/- as security for due performance or part performance of such order or orders as to costs as may ultimately be binding on them;
(ii) The appellant/applicant is directed to prepare, file and serve a record of appeal on the respondents within 30 days from the date of delivery of this ruling.
(iii) The appellant/applicant to fix the appeal for directions within 7 days of service of the record of appeal.
(iv) The appeal shall be heard and determined within three months (90 days) from the date of delivery of this ruling, unless for a good reason the court extends the time.
(v) Failure to which the appeal shall stand dismissed.
(vi) Costs of the application t abide the outcome of the appeal.
27. Orders accordingly.
Dated, signed and delivered virtually, at Kabarnet this 17th day of November, 2025.
L. N. WAITHAKA
JUDGE
In the presence of:-
Ms. Kibet h/b for Mr Kibii for the appellant/applicant
N/A for the respondents
Court Assistant: Ian