Introduction
1. Before this Court for determination are the following two applications: -
i. The Appellant’s application dated 9th June 2025, primarily seeking leave to appeal out of time, stay of execution of the orders of the lower court made on 25th October 2024, and an order permitting it to retain possession of the suit motor vehicles, registration numbers KCE 800J and KCN 918S, pending the hearing and determination of the intended appeal.
ii. The Respondent’s application dated 19th June 2025, seeking, among other reliefs, release of the motor vehicles to the Respondent and the dismissal of the Appellant’s application.
2. Both applications are opposed. The Applications are opposed. The Respondent’s application dated 19th June 2025 and the affidavit in support thereof were, by directions of this court, issued on 30th June 2025, treated also as a replying affidavit to the Appellant’s application. The Appellant’s response to the Respondent’s application was by way of Grounds of Opposition dated 27th June 2025.
3. The dispute originates from a financial facility advanced by the Appellant (lender) to the Respondent (borrower) in 2022, secured by motor vehicles KCE 800J and KCN 918S. The loan was to be repaid within four months, but the Respondent defaulted. This led to a case in the lower court.
4. On July 26, 2024, the lower court (Hon. L.B. Koech (Mrs)) issued a decision maintaining the status quo of the collateral, conditional on the Respondent settling the outstanding loan. Crucially, this ruling also allowed the Applicant to file its defense out of time, conditional upon payment of Kshs. 30,000 in throw-away costs within 45 days. The Respondent asserts this condition was never met.
5. Subsequently, on October 25, 2024, a ruling by Hon. K.D. Ole Keiwua was delivered in the absence of both parties. This ruling barred the Applicant and its agents from dealing with motor vehicles KCE 800T and KCN 918S and granted the Defendant (now Appellant/Applicant) 30 days right of appeal and 45 days stay of execution.
6. The Applicant/Appellant contends it only became aware of the October 25, 2024, ruling on June 5, 2025, and subsequently repossessed motor vehicle KCE 800J.
7. It is this repossession of motor vehicle KCE 800J by the Appellant that has triggered the current proceedings, with the Respondent arguing that the repossession constitutes contempt of the standing court orders from July 26, 2024, and October 25, 2024.
8. The matter proceeded by way of written submissions. The Appellant filed its submissions dated 5th July 2025, whilst the Respondent filed his dated 10th July 2025.
Analysis and Determination
9. Upon careful consideration of the two applications, the replies thereto, and submissions filed by the parties in support of their respective positions, the Court is of the view that the following three issues arise for determination: -
i. Whether the Appellant should be granted leave to file an appeal out of time.
ii. Whether a stay of execution and continued possession of the vehicles by the Appellant should be allowed pending appeal;
On the Leave to Appeal Out of Time
10. The The applicable legal provision is Section 79G of the Civil Procedure Act, which provides:
“…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.”
11. The Supreme Court in Nicholas Kiptoo Arap Salat v IEBC & Others [2014] eKLR outlined the principles governing such applications, notably that extension of time is not a right but a discretionary and equitable remedy and an applicant bears the burden of showing good cause and absence of undue delay. That in determining whether or not to grant the prayer, a Court must consider whether any prejudice will be occasioned to the other party.
12. The Applicant seeks leave to appeal out of time, citing absence of parties during the delivery of the October 25, 2024, ruling as the reason for the delay, and in support of the submissions cites, among others, the case of Wangechi & 2 others v Gakuru & another [2025] KEHC 8675 (KLR), where absence of counsel was deemed sufficient cause for a 5-month delay, and Maitai v Silas [2024] KEHC 5846 (KLR) which accepted a 5-month delay due to unavailability of proceedings.
13. The Respondent, on the other hand, opposes the prayer, arguing that the delay of over seven months (from October 25, 2024, to June 9, 2025) was inordinate and has not been sufficiently explained by the Appellant.
14. Having considered the pleadings filed herein, I note that, as rightly pointed out by the Respondent, extension of time is an equitable remedy requiring the applicant to lay a satisfactory basis for delay, prejudice to the respondent, and undue delay in bringing the application. In the present case, the Court agrees with the Respondent that the delay of over seven months has not been sufficiently explained by the Appellant.
15. The Appellant merely contended that it was unaware of the ruling delivered on 25th October 2024, allegedly due to lack of notice. However, the Respondent has placed before this Court e-filing logs indicating that the ruling was uploaded by the court registry on 12th November 2024, a fact the Appellant’s counsel ought to have known, had they exercised due diligence.
16. Additionally, the Appellant offers no explanation for the delay between that date and 5th June 2025, when their former advocates allegedly obtained the ruling and proceeded to repossess the vehicle.
17. In any event, the Appellant has not demonstrated any substantial steps they undertook to safeguard the proceedings or to secure the ruling from the lower court. Consequently, the Court finds that the Appellant has not met the threshold established in Nicholas Kiptoo Arap Salat v Independent Electoral and Boundaries Commission & 7 Others and Diplack Kenya Ltd v William Kitonyi [2018] eKLR. The prayer for leave to appeal out of time is therefore declined.
On Stay of Execution and Possession of Motor Vehicles
18. The Applicant seeks a stay of execution of the October 25, 2024, ruling or, alternatively, to retain possession of the motor vehicles, arguing that the Respondent owes over Kshs. 8,000,000/-, has defaulted since 2022, and has no means to settle the amount. They claim substantial loss due to depreciation and the appeal being rendered nugatory if stay is not granted.
19. Order 42 Rule 6 of the Civil Procedure Rules provides that: -
“Stay in case of appeal [Order 42, rule 6]
(2) No order for stay of execution shall be made under subrule (1) unless—
(a) the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and
(b) such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.
(3) Notwithstanding anything contained in subrule (2), the court shall have power, without formal application made, to order upon such terms as it may deem fit a stay of execution pending the hearing of a formal application.”
20. To succeed, the Appellant must show that a substantial loss will result unless the stay is granted, that the application has been made without unreasonable delay, and that Security, where applicable, has been offered.
21. Although the Appellant raises concerns of financial exposure and depreciation of the motor vehicles, these concerns are significantly weakened by the fact that the vehicles are jointly registered, and are fitted with tracking devices. In any event, the vehicles were already vested in the Respondent’s possession pursuant to two court orders issued on merit.
22. Even more concerning is the Appellant’s admitted act of repossession on 5th June 2025, an act that directly violates subsisting court orders. It is a well-established principle that a party in contempt of a court order is not entitled to discretionary relief until such contempt is purged. In Hadkinson v Hadkinson [1952] 2 All ER 567, the Court held:
“It is the plain and unqualified obligation of every person against or in respect of whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged.”
23. The Court cannot condone self-help or unlawful conduct in the guise of enforcement. The Appellant’s conduct in this regard offends the rule of law and amounts to a brazen disregard of judicial authority.
24. In the circumstances, this Court declines to grant stay of execution, and further finds that the motor vehicle KCE 800J was unlawfully seized and should be immediately returned to the Respondent.
25. Accordingly, I make and issue the following final orders: -
i. The Appellant’s application dated 9th June 2025 is dismissed in its entirety.
ii. The Respondent’s application dated 19th June 2025 is allowed;
iii. The Appellant is hereby directed to release motor vehicle KCE 800J to the Respondent forthwith and not interfere with possession of both vehicles KCE 800J and KCN 918S.
iv. The Appellant shall pay costs of both applications, hereby assessed at Kshs. 100,000 to the Respondent.
26. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
17TH DAY OF JULY 2025
ADO MOSES
JUDGE
In the Presence of
Moses C/A
Ms. Mutua h/b for Abidha……………for the Applicant
Washika………. ……………………..for Respondent
1. Before this Court for determination are the following two applications: -
i. The Appellant’s application dated 9th June 2025, primarily seeking leave to appeal out of time, stay of execution of the orders of the lower court made on 25th October 2024, and an order permitting it to retain possession of the suit motor vehicles, registration numbers KCE 800J and KCN 918S, pending the hearing and determination of the intended appeal.
ii. The Respondent’s application dated 19th June 2025, seeking, among other reliefs, release of the motor vehicles to the Respondent and the dismissal of the Appellant’s application.
2. Both applications are opposed. The Applications are opposed. The Respondent’s application dated 19th June 2025 and the affidavit in support thereof were, by directions of this court, issued on 30th June 2025, treated also as a replying affidavit to the Appellant’s application. The Appellant’s response to the Respondent’s application was by way of Grounds of Opposition dated 27th June 2025.
3. The dispute originates from a financial facility advanced by the Appellant (lender) to the Respondent (borrower) in 2022, secured by motor vehicles KCE 800J and KCN 918S. The loan was to be repaid within four months, but the Respondent defaulted. This led to a case in the lower court.
4. On July 26, 2024, the lower court (Hon. L.B. Koech (Mrs)) issued a decision maintaining the status quo of the collateral, conditional on the Respondent settling the outstanding loan. Crucially, this ruling also allowed the Applicant to file its defense out of time, conditional upon payment of Kshs. 30,000 in throw-away costs within 45 days. The Respondent asserts this condition was never met.
5. Subsequently, on October 25, 2024, a ruling by Hon. K.D. Ole Keiwua was delivered in the absence of both parties. This ruling barred the Applicant and its agents from dealing with motor vehicles KCE 800T and KCN 918S and granted the Defendant (now Appellant/Applicant) 30 days right of appeal and 45 days stay of execution.
6. The Applicant/Appellant contends it only became aware of the October 25, 2024, ruling on June 5, 2025, and subsequently repossessed motor vehicle KCE 800J.
7. It is this repossession of motor vehicle KCE 800J by the Appellant that has triggered the current proceedings, with the Respondent arguing that the repossession constitutes contempt of the standing court orders from July 26, 2024, and October 25, 2024.
8. The matter proceeded by way of written submissions. The Appellant filed its submissions dated 5th July 2025, whilst the Respondent filed his dated 10th July 2025.
Analysis and Determination
9. Upon careful consideration of the two applications, the replies thereto, and submissions filed by the parties in support of their respective positions, the Court is of the view that the following three issues arise for determination: -
i. Whether the Appellant should be granted leave to file an appeal out of time.
ii. Whether a stay of execution and continued possession of the vehicles by the Appellant should be allowed pending appeal;
On the Leave to Appeal Out of Time
10. The The applicable legal provision is Section 79G of the Civil Procedure Act, which provides:
“…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.”
11. The Supreme Court in Nicholas Kiptoo Arap Salat v IEBC & Others [2014] eKLR outlined the principles governing such applications, notably that extension of time is not a right but a discretionary and equitable remedy and an applicant bears the burden of showing good cause and absence of undue delay. That in determining whether or not to grant the prayer, a Court must consider whether any prejudice will be occasioned to the other party.
12. The Applicant seeks leave to appeal out of time, citing absence of parties during the delivery of the October 25, 2024, ruling as the reason for the delay, and in support of the submissions cites, among others, the case of Wangechi & 2 others v Gakuru & another [2025] KEHC 8675 (KLR), where absence of counsel was deemed sufficient cause for a 5-month delay, and Maitai v Silas [2024] KEHC 5846 (KLR) which accepted a 5-month delay due to unavailability of proceedings.
13. The Respondent, on the other hand, opposes the prayer, arguing that the delay of over seven months (from October 25, 2024, to June 9, 2025) was inordinate and has not been sufficiently explained by the Appellant.
14. Having considered the pleadings filed herein, I note that, as rightly pointed out by the Respondent, extension of time is an equitable remedy requiring the applicant to lay a satisfactory basis for delay, prejudice to the respondent, and undue delay in bringing the application. In the present case, the Court agrees with the Respondent that the delay of over seven months has not been sufficiently explained by the Appellant.
15. The Appellant merely contended that it was unaware of the ruling delivered on 25th October 2024, allegedly due to lack of notice. However, the Respondent has placed before this Court e-filing logs indicating that the ruling was uploaded by the court registry on 12th November 2024, a fact the Appellant’s counsel ought to have known, had they exercised due diligence.
16. Additionally, the Appellant offers no explanation for the delay between that date and 5th June 2025, when their former advocates allegedly obtained the ruling and proceeded to repossess the vehicle.
17. In any event, the Appellant has not demonstrated any substantial steps they undertook to safeguard the proceedings or to secure the ruling from the lower court. Consequently, the Court finds that the Appellant has not met the threshold established in Nicholas Kiptoo Arap Salat v Independent Electoral and Boundaries Commission & 7 Others and Diplack Kenya Ltd v William Kitonyi [2018] eKLR. The prayer for leave to appeal out of time is therefore declined.
On Stay of Execution and Possession of Motor Vehicles
18. The Applicant seeks a stay of execution of the October 25, 2024, ruling or, alternatively, to retain possession of the motor vehicles, arguing that the Respondent owes over Kshs. 8,000,000/-, has defaulted since 2022, and has no means to settle the amount. They claim substantial loss due to depreciation and the appeal being rendered nugatory if stay is not granted.
19. Order 42 Rule 6 of the Civil Procedure Rules provides that: -
“Stay in case of appeal [Order 42, rule 6]
(2) No order for stay of execution shall be made under subrule (1) unless—
(a) the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and
(b) such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.
(3) Notwithstanding anything contained in subrule (2), the court shall have power, without formal application made, to order upon such terms as it may deem fit a stay of execution pending the hearing of a formal application.”
20. To succeed, the Appellant must show that a substantial loss will result unless the stay is granted, that the application has been made without unreasonable delay, and that Security, where applicable, has been offered.
21. Although the Appellant raises concerns of financial exposure and depreciation of the motor vehicles, these concerns are significantly weakened by the fact that the vehicles are jointly registered, and are fitted with tracking devices. In any event, the vehicles were already vested in the Respondent’s possession pursuant to two court orders issued on merit.
22. Even more concerning is the Appellant’s admitted act of repossession on 5th June 2025, an act that directly violates subsisting court orders. It is a well-established principle that a party in contempt of a court order is not entitled to discretionary relief until such contempt is purged. In Hadkinson v Hadkinson [1952] 2 All ER 567, the Court held:
“It is the plain and unqualified obligation of every person against or in respect of whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged.”
23. The Court cannot condone self-help or unlawful conduct in the guise of enforcement. The Appellant’s conduct in this regard offends the rule of law and amounts to a brazen disregard of judicial authority.
24. In the circumstances, this Court declines to grant stay of execution, and further finds that the motor vehicle KCE 800J was unlawfully seized and should be immediately returned to the Respondent.
25. Accordingly, I make and issue the following final orders: -
i. The Appellant’s application dated 9th June 2025 is dismissed in its entirety.
ii. The Respondent’s application dated 19th June 2025 is allowed;
iii. The Appellant is hereby directed to release motor vehicle KCE 800J to the Respondent forthwith and not interfere with possession of both vehicles KCE 800J and KCN 918S.
iv. The Appellant shall pay costs of both applications, hereby assessed at Kshs. 100,000 to the Respondent.
26. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
17TH DAY OF JULY 2025
ADO MOSES
JUDGE
In the Presence of
Moses C/A
Ms. Mutua h/b for Abidha……………for the Applicant
Washika………. ……………………..for Respondent