' 1. By a Notice of Motion dated 08th July 2025, brought under Sections 3 and 3A of the Civil Procedure Act, Orders 42 Rules 6 and 51 Rule 1 of the Civil Procedure Rules, and Article 159(2)(d) of the Constitution, the Applicants seek two substantive orders—
1) Leave to appeal out of time against the ruling of Hon. B. Jumar, Resident Magistrate, delivered on 04th November 2024 in Nyamira CMCC No. E005 of 2022
2) Stay of execution of the said ruling pending hearing and determination of the intended appeal.
2. The application is supported by the affidavit sworn on 17th July 2025 by Evans Gichana Mokua, who deposes that the Applicants’ former advocates failed to inform them of the delivery of the ruling dismissing their application to set aside an ex parte judgment. He additionally avers that the Applicants only became aware of the ruling on 22nd May 2025, when the Officer Commanding Police Station, Gachuba, notified them of intended execution relating to exhumation of the Respondent’s late wife, Bilha Bosibori Makori.
3. The Respondent was duly served on 12th August 2025 but did not file any response or submissions. The application therefore proceeded unopposed.
Issues for Determination
4. From the application and the supporting affidavit, I have deduced two issues arise for determination namely:
1) Whether leave to appeal out of time should be granted
2) Whether a stay of execution pending appeal should issue.
Analysis and Determination
1) Leave to Appeal out of Time
5. Under Section 79G of the Civil Procedure Act, an appeal from a subordinate court must be filed within thirty days of the decree or order being appealed from. Nonetheless, the section grants the court discretion to admit an appeal filed out of time if the appellant demonstrates good and sufficient cause for the delay.
6. The guiding principles were set out in Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999] 2 EA 231 where the Court of Appeal stated that the court should consider:
i. The length of the delay;
ii. The reason for the delay;
iii. The chances of the appeal succeeding if the application is granted; and
iv. The degree of prejudice to the respondent if time is extended.
7. The Supreme Court, in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR , elaborated the same principles and held:
“Extension of time is not a right of a party. It is an equitable remedy available only to a deserving party at the discretion of the court. The party who seeks it must lay a satisfactory basis to the court’s satisfaction. Whether to extend time is a consideration to be made on a case-by-case basis.”
8. The ruling sought to be appealed from was delivered on 04th November 2024. The Applicants explain that they were unaware of it until 22nd May 2025, when the police informed them of impending execution. They attribute this delay to their former advocates’ failure to communicate the outcome of the application.
9. The explanation that the Applicants’ former advocates failed to communicate the outcome of the ruling is both credible and legally recognised. The principle that a litigant should not be punished for the inadvertence or mistake of counsel is well established in our jurisprudence. In Belinda Murai & 9 Others v Amos Wainaina [1978] KECA 23 (KLR) , Madan JA observed that “a mistake is a mistake; it is no less a mistake because it is an unfortunate slip, and the door of justice is not closed because a mistake has been made by a person of experience who ought to have known better.”
10. Similarly, in Philip Keipto Chemwolo & Another v Augustine Kubende [1986] KECA 87 (KLR) , Apaloo JA stated that blunders will continue to be made from time to time and that it does not follow that because a mistake has been made a party should suffer the penalty of not having his case heard on the merits. The same approach was taken by the Court of Appeal in Rajesh Rughani v Fifty Investments Ltd & Another [2005] eKLR a nd Shital Bimal Shah & 2 Others v Akiba Bank Ltd & 4 Others [2006] KECA 225 (KLR) , which reaffirmed that a litigant should not be penalised for counsel’s error unless the client is shown to have been negligent or complicit.
11. Guided by these authorities, I am satisfied that the Applicants cannot be faulted for the omission of their former advocates, and the delay up to the time they learnt of the ruling has been sufficiently explained.
12. Accordingly, I am satisfied that the Applicants have demonstrated sufficient cause under Section 79G of the Civil Procedure Act. Leave to appeal out of time is therefore granted.
2) Stay of Execution Pending Appeal
12. The principles applicable to stay of execution are contained in Order 42 Rule 6(2) of the Civil Procedure Rules. An applicant must show that substantial loss may result unless stay is granted, that the application was made without unreasonable delay, and that the justice of the case warrants suspension of the decree.
13. The Applicants argue that enforcement of the lower court’s ruling would compel them to exhume the body of the Respondent’s wife, thereby exposing them to embarrassment and public indignity. The Court recognises that such an order is sensitive and unsettling. However, not every inconvenience in obeying a court order amounts to substantial loss. Substantial loss must be real, measurable, and incapable of compensation if the appeal succeeds.
14. The Applicants learnt of the ruling on 22nd May 2025 but did not seek any interim relief until 08th July 2025. No explanation has been provided for this delay, which diminishes the urgency of their claim that execution is imminent.
15. The order of the subordinate court remains valid and in force, and while it may be executed, the Applicants have not demonstrated that compliance would cause such irreversible prejudice as to render the intended appeal nugatory. The decree emanates from a court of competent jurisdiction and remains enforceable until set aside on appeal.
16. The Court of Appeal in Butt v Rent Restriction Tribunal [1982] KLR 417 held that the power to grant stay is discretionary and must be exercised to prevent substantial injustice but not to deny a successful litigant the fruits of a regular judgment. The Applicants have not met that threshold.
17. Consequently, the prayer for stay of execution pending appeal is declined.
Disposition
18. In conclusion, while this Court has found sufficient cause to extend time for filing an appeal, it finds no legal or equitable basis to suspend enforcement of the subordinate court’s order. The grant of leave merely restores the Applicants’ right to challenge the ruling on appeal, whereas the refusal of stay reflects that they have not demonstrated substantial loss or that the appeal would be rendered nugatory by compliance with the order. The decree of the lower court shall therefore remain in force pending the hearing and determination of the intended appeal.
19. Accordingly, the Court makes the following orders:
1) Leave is hereby granted to the Applicants to appeal out of time against the ruling of Hon. B. Jumar (RM) delivered on 04th November 2024 in Nyamira CMCC No. E005 of 2022.
2) The Appeal shall be filed within thirty (30) days of this ruling.
3) The prayer for stay of execution pending appeal is declined.
4) The costs of this application shall abide the outcome of the intended appeal.
5) This being a miscellaneous file, it is hereby closed
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1) Leave to appeal out of time against the ruling of Hon. B. Jumar, Resident Magistrate, delivered on 04th November 2024 in Nyamira CMCC No. E005 of 2022
2) Stay of execution of the said ruling pending hearing and determination of the intended appeal.
2. The application is supported by the affidavit sworn on 17th July 2025 by Evans Gichana Mokua, who deposes that the Applicants’ former advocates failed to inform them of the delivery of the ruling dismissing their application to set aside an ex parte judgment. He additionally avers that the Applicants only became aware of the ruling on 22nd May 2025, when the Officer Commanding Police Station, Gachuba, notified them of intended execution relating to exhumation of the Respondent’s late wife, Bilha Bosibori Makori.
3. The Respondent was duly served on 12th August 2025 but did not file any response or submissions. The application therefore proceeded unopposed.
Issues for Determination
4. From the application and the supporting affidavit, I have deduced two issues arise for determination namely:
1) Whether leave to appeal out of time should be granted
2) Whether a stay of execution pending appeal should issue.
Analysis and Determination
1) Leave to Appeal out of Time
5. Under Section 79G of the Civil Procedure Act, an appeal from a subordinate court must be filed within thirty days of the decree or order being appealed from. Nonetheless, the section grants the court discretion to admit an appeal filed out of time if the appellant demonstrates good and sufficient cause for the delay.
6. The guiding principles were set out in Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999] 2 EA 231 where the Court of Appeal stated that the court should consider:
i. The length of the delay;
ii. The reason for the delay;
iii. The chances of the appeal succeeding if the application is granted; and
iv. The degree of prejudice to the respondent if time is extended.
7. The Supreme Court, in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR , elaborated the same principles and held:
“Extension of time is not a right of a party. It is an equitable remedy available only to a deserving party at the discretion of the court. The party who seeks it must lay a satisfactory basis to the court’s satisfaction. Whether to extend time is a consideration to be made on a case-by-case basis.”
8. The ruling sought to be appealed from was delivered on 04th November 2024. The Applicants explain that they were unaware of it until 22nd May 2025, when the police informed them of impending execution. They attribute this delay to their former advocates’ failure to communicate the outcome of the application.
9. The explanation that the Applicants’ former advocates failed to communicate the outcome of the ruling is both credible and legally recognised. The principle that a litigant should not be punished for the inadvertence or mistake of counsel is well established in our jurisprudence. In Belinda Murai & 9 Others v Amos Wainaina [1978] KECA 23 (KLR) , Madan JA observed that “a mistake is a mistake; it is no less a mistake because it is an unfortunate slip, and the door of justice is not closed because a mistake has been made by a person of experience who ought to have known better.”
10. Similarly, in Philip Keipto Chemwolo & Another v Augustine Kubende [1986] KECA 87 (KLR) , Apaloo JA stated that blunders will continue to be made from time to time and that it does not follow that because a mistake has been made a party should suffer the penalty of not having his case heard on the merits. The same approach was taken by the Court of Appeal in Rajesh Rughani v Fifty Investments Ltd & Another [2005] eKLR a nd Shital Bimal Shah & 2 Others v Akiba Bank Ltd & 4 Others [2006] KECA 225 (KLR) , which reaffirmed that a litigant should not be penalised for counsel’s error unless the client is shown to have been negligent or complicit.
11. Guided by these authorities, I am satisfied that the Applicants cannot be faulted for the omission of their former advocates, and the delay up to the time they learnt of the ruling has been sufficiently explained.
12. Accordingly, I am satisfied that the Applicants have demonstrated sufficient cause under Section 79G of the Civil Procedure Act. Leave to appeal out of time is therefore granted.
2) Stay of Execution Pending Appeal
12. The principles applicable to stay of execution are contained in Order 42 Rule 6(2) of the Civil Procedure Rules. An applicant must show that substantial loss may result unless stay is granted, that the application was made without unreasonable delay, and that the justice of the case warrants suspension of the decree.
13. The Applicants argue that enforcement of the lower court’s ruling would compel them to exhume the body of the Respondent’s wife, thereby exposing them to embarrassment and public indignity. The Court recognises that such an order is sensitive and unsettling. However, not every inconvenience in obeying a court order amounts to substantial loss. Substantial loss must be real, measurable, and incapable of compensation if the appeal succeeds.
14. The Applicants learnt of the ruling on 22nd May 2025 but did not seek any interim relief until 08th July 2025. No explanation has been provided for this delay, which diminishes the urgency of their claim that execution is imminent.
15. The order of the subordinate court remains valid and in force, and while it may be executed, the Applicants have not demonstrated that compliance would cause such irreversible prejudice as to render the intended appeal nugatory. The decree emanates from a court of competent jurisdiction and remains enforceable until set aside on appeal.
16. The Court of Appeal in Butt v Rent Restriction Tribunal [1982] KLR 417 held that the power to grant stay is discretionary and must be exercised to prevent substantial injustice but not to deny a successful litigant the fruits of a regular judgment. The Applicants have not met that threshold.
17. Consequently, the prayer for stay of execution pending appeal is declined.
Disposition
18. In conclusion, while this Court has found sufficient cause to extend time for filing an appeal, it finds no legal or equitable basis to suspend enforcement of the subordinate court’s order. The grant of leave merely restores the Applicants’ right to challenge the ruling on appeal, whereas the refusal of stay reflects that they have not demonstrated substantial loss or that the appeal would be rendered nugatory by compliance with the order. The decree of the lower court shall therefore remain in force pending the hearing and determination of the intended appeal.
19. Accordingly, the Court makes the following orders:
1) Leave is hereby granted to the Applicants to appeal out of time against the ruling of Hon. B. Jumar (RM) delivered on 04th November 2024 in Nyamira CMCC No. E005 of 2022.
2) The Appeal shall be filed within thirty (30) days of this ruling.
3) The prayer for stay of execution pending appeal is declined.
4) The costs of this application shall abide the outcome of the intended appeal.
5) This being a miscellaneous file, it is hereby closed
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