1.By the Notice of motion dated 21.5.2026 brought under section 1A,1b,3A and 80 of the Civil procedure Act, sections 27 and 28 of law of limitation of Action Act ,Order 22 rule 22,25, 91 ,order 12 rule 7 and order 51 rule 1 and 3 of the Civil procedure rules2010,Article25, 48,50(1) and 159 of the constitution of Kenya 2010 the Applicant seeks following orders:
a) spent
b).This Honourable court be pleased to issue a temporary stay of execution of the Judgment delivered on 27.2.2025 and all other subsequent orders in Taveta MCELCE038/2023 between Peter Wambua Mwangangi vs Nancy Ndigha Tolo.
c).The Honourable court be pleased to issue an order to the in charge of wundanyi Gk prison for release of the Applicant.
d).This Honourable court be pleased to review//vary and/or set aside the Judgement of Taveta MCELCE038/2023 dated 27.2.2025 and allow the Defendant to file defence and defend herself.
e).This Honourable Court be pleased to review//vary and/or set aside the Judgement of Taveta MCELCE038/2023 dated 27.2.2025 and allow the Defendant to file an appeal out of time.
f).This Honourable Court be pleased to review//vary and/or set aside the Judgement of Taveta MCElCE038/2023 dated 27.2.2025 and stay the judgment pending hearing of the main suit and/or appeal.
g).The costs of the Application be provided for.
2.The Application is supported by the grounds on the face thereof , supporting affidavit of Applicant sworn on the 21.5.2026 and annexures marked NNT:1-4.
3.The Application is opposed by the respondent who filed a replying affidavit and grounds of opposition dated 26.5.2026 as filed on 28.5.2026.
4.Applicant’s case.
5.The Applicant deposed in her affidavit dated 21.5.2026 that she was not served with the pleadings by the Respondent save that she learnt of existence of the case on 6.5.2026 when arraigned before Taveta Magistrates Court in regard to ELCE038/2023 and committed to civil jail for non-payment of kshs 245,200/=being the decretal costs.
6.The Applicant deposed further that she never employed the services of Mvera Nyanje and Mambo Advocates to represent her in the matter and the email address for service of the pleadings upon her purported Advocate was a lie as per the annexed affidavit of service marked NNT1-3.
7.She deposed further that there is no delay in filing the Application and has an arguable appeal against the respondent as per the draft memorandum of appeal dated 21.5.2026 and will suffer irreparable loss if the application is not allowed.
8.Respondent’s case :
9.The Respondent deposed in his Replying Affidavit and grounds of opposition dated 26.5.2026 that the Applicant was duly served with the pleadings and aware of existence of the matter having filed A Replying Affidavit on account of an application for Temporary injunction then filed against her in Taveta MCELC038/2023 where she was represented by Mvera, Nyanje and Mambo Advocates save that she disobeyed the court order by failing to pay the decretal costs of kshs 245,200/= hence her committal to civil jail.
10.The Respondent deposed further that the delay in filing the application by applicant is inordinate hence an abuse of the due process of the law though the Respondent called for security for costs to be provided for by the Applicant in light of Applicant’s prayer for stay of execution of judgement pending hearing and determination of main suit or appeal.
11.The Respondent filed written submissions dated 29.5.2026 and urged the court to dismiss the Applicant’s Application as it is an abuse of the due process of the court save that the Honourable court in exercising its unfettered discretion in allowing the application should call upon the Applicant to provide security for costs.
12.I have considered the Affidavit evidence of the parties filed on record so to the written submissions of the Respondent.
13.Analysis and determination :
The issues for determination by the Honourable Court are:
a) whether the Applicant should be granted leave to file an appeal out of time .
b) Whether a stay of execution of judgement/ decree should be granted.
c) Whether the judgement in Taveta MCELCE038/2023 should be reviewed, varied and or set aside pending the hearing and determination of the main suit or appeal.
d) Whether the Applicant should be released from civil jail .
e) Who to bear costs of the application.
14.Section 79G of the Civil Procedure Act, 2010 provides that :
A “ 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 .
B: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”
15.Similarly, Section 16A(1) and (2)of the Environment and land Court Act 2011 provides that: A)“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 a copy of the decree or order.
B)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”.
16.In the case of Nick Salat vs Iebc and 7 others (2014) eklr the supreme court of Kenya set the principles for consideration by a court of law when dealing with application for extension of time being :
1. A party who sought extension of time had the burden of laying a basis for it to the satisfaction of the court;
2. Whether the court ought to exercise the discretion to extend time, was a consideration to be made on a case to case basis;
3. Whether there was a reasonable reason for the delay, which ought to be explained to the satisfaction of the court;
4. Whether there would be any prejudice suffered by the respondents if the extension was granted;
5. Whether the application had been brought without undue delay; and;
6. Whether in certain cases, like election petitions, public interest ought to be a consideration for extending time.
17.It is settled that a court of law has unfettered discretion to extend time to appeal which discretion has to be exercised judiciously as restated in the case of Omar Shurie vs Marian Rashe Yafar (2020)eklr as follows:
“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters which this Court considers in deciding whether to grant an extension of time are: first the length of the delay, secondly, the reason for the delay; thirdly (possibly) the chances of the appeal succeeding if the application is granted; and, fourthly, the degree of prejudice to the respondent if the application is granted.
18.The Court of Appeal in the case of Waweru vs Munene(2026)eklr reemphasised that grant of leave to appeal out of time is discretionary which discretion ought to be exercised judiciously and on sound principles being the the period of delay,reason for the delay , degree of prejudice to the opposing party and aguarbility of the appeal
19.The Applicant admits that judgement of the magistrate’s court in Taveta MCELC038/2023 to be appealed against was delivered on the 27.2.2025.The Applicant ought to have filed the appeal on or before 26.3.2025 .The Applicant filed the application on 21.5.2026. From 27.2.2025 up to 21.5.2026 both periods inclusive there is an inordinate delay of 14 months.
20.Whether there is a reasonable explanation by the Applicant:
21.The Applicant’s explanation for delay in not filing appeal on time as per her affidavit dated 21.5.2026 is that she was not served with the pleadings by the respondent and learnt of existence of the matter as filed against her on 5.5.2026 and 6.5.2026 while at Taveta police station when shown the warrant of arrest issued against her by the respondent and arraigned before the trial court to show cause why she should not be committed to civil jail respectively. 22.She deposed further that she never instructed the firm of mvera, nyanje and mambo Advocates to act for her in the matter save for the two criminal matters instituted against her by the Respondent in Taveta Magistrates Court which she is aware of and instructed Jimmy Mlisho Advocate to act for her though the Advocate joined the bench in 2024.
22.The Applicant deposed further that no prejudice shall be occasioned to the Respondent if the application is allowed as she was not served with the pleadings and accorded a chance to be heard on merit .
23.The issue of a litigant not being served with pleadings or accorded a chance to be heard on merit touches on the fundamental right to a fair hearing that cannot be limited pursuant to article 25 of the constitution of Kenya 2010.
24.Article 159(2)(d) of the constitution of Kenya 2010 provides that in exercising judicial authority, the courts and tribunals shall be guided by the following principles:
(d) justice shall be administered without undue regard to procedural technicalities.26.The Applicant filed a draft memorandum of appeal as annexure NNT-4 raising triable issue of being condemned unheard in Taveta spmcelc038/2023 which she intends to challenge before This Honourable court.
25.It is the duty of a court of law to uphold substantive justice to parties at all times irrespective of their status in society . Having considered the explanation of Applicant vide the affidavit dated 21.5.2026 and in the interest of justice, I find that the Applicant has demonstrated a reasonable explanation as to the delay in failing to file an appeal within the stipulated timelines hence deserving of leave to appeal out of time.
26.Whether stay of execution of Judgement should be granted.
Order 42 rule 6(1) and (2) of the Civil procedure rules 2010 provide the conditions for granting stay of execution of Judgement pending hearing and determination of appeal being: ‘whether the Applicant has filed the application timeously, is willing to provide security for due performance of the decree and irreparable loss is likely to be suffered by the applicant if the application is not allowed’
27.It is not doubted the Respondent has set in motion execution of the decree for payment of kshs 245,200/= in his favor by the Applicant
28.The Respondent called for provision of security by the Applicant pending hearing and determination of the appeal in compliance with order 42 rule 6 of the civil procedure rules 2010 should the applicant's application be allowed.
29.The rationale for providing security by a party is settled in the case of Bhutt vs Rent Restriction Tribunal (1979)eklr and restated in the case of Gatiru Peter Munya vs Dickson Mwenda Kithinji &2 others (2014)eklr purposely to recompensate for costs that might be awarded to him in the event that the unsuccessful party is unable to pay the same due to poverty and ensures that a litigant who by reason of his financial ability is unable to pay costs of the litigation if he loses, is disabled from carrying on litigation indefinitely cushion the successful party from starting a fresh in the event the appeal fails.
30.The Respondent is the decree holder and entitled to the fruits of his Judgement until dictated otherwise. It is prudent that security for costs be provided for by the Applicant pending hearing and determination of the appeal.
31.In the circumstances I find the Applicant is deserving for stay of execution of the judgement and decree pending hearing and determination of the Appeal or intended appeal hence allowed subject to provision of security by the Applicant on terms to be set by the court.
32.The Applicant called for setting aside of the Judgement dated 27.2.2025 in Taveta MCELCE038/2023 between Peter Wambua Mwangangi vs Nancy Ndigha Toto and allow the Defendant to defend herself. The Applicant in her draft memorandum of appeal dated 21.5.2026 called for setting aside of the judgement dated 27.2.2025 and matter being heard on merit before the magistrates’ court at Taveta as her draft statement of defence raises triable issues. It is the considered view of the Honourable court that such a prayer cannot be granted at this stage since it is an issue that has been raised as a proposed ground of appeal by the Applicant which can only be dealt with substantively at the Appellate stage hence disallowed.
33.Section 80 and order 45 of the Civil Procedure Act and Rules 2010 respectively provide for review and/or setting aside of a judgement /Decree or ruling/order of a court on grounds of discovery of new evidence not within the knowledge of applicant at time of hearing, error apparent on face of the record or in the interest of justice.
34.The Applicant deposed that she was not served with the pleadings by the Respondent which averment does not amount to an error apparent on the face of record but a ground of appeal hence such a prayer is misplaced as it amounts to an abuse of due process of the court. Having declined to grant the prayer for setting aside the judgement of the trial court pending hearing and determination of the appeal, prayer 4 of the motion dated 21.5.2026 is equally disallowed.
35:Disposition:
Having considered the entire affidavit evidence and written submissions on record, I find the Notice of motion dated 21.5.2026 partially meritorious and allowed on following terms:
a-The Applicant is granted Leave to file appeal out of time against the Judgment delivered on 27.2.2025 in Taveta MCELCE038/2023 between Peter Wambua Mwangangi vs Nancy Ndigha Tolo.
b-The Applicant to file a substantive Appeal and serve upon the Respondent within 14 days from the date of the ruling/order.
c-An order of stay of execution of the judgement/decree in Taveta MCELCE 038/2023 is hereby granted pending the hearing and determination of appeal.
d-The Applicant to deposit a sum of kshs 245,200/= in court in the Appeal file within 30 days from the date of this order/ruling.
e-In default of compliance with order B, C and/ or D above, Prayer C shall be deemed as vacated and Respondent be at liberty to proceed with execution of the decree.
f-The costs of the Application shall abide by the outcome of the Appeal.
g-The Applicant be released from custody by the In charge Gk Prison ,Wundanyi pending compliance with order b and d above.
h-The file is marked as closed.
Delivered, dated and signed at voi virtually This 3rd day of June ,2026 in the presence of:
Applicant-Toto (virtually)
Mr oddiaga for the Respondent (Virtually)
Ms Ngoira - Court Assistant.
By Jacinta A Orwa
Judge