1. The applicant moved this court by way of the Notice of Motion dated 12th May 2025 filed through the firm of Omwenga & Company Advocates, the Applicants herein sought the following orders THAT: -
1. SPENT
2. SPENT
3. SPENT
4. THAT This Honourable court be pleased to grant an order of stay of execution of the judgment delivered on 26.2.2025 in Kisii CMCC NO. E261 OF 2021 , the decree issued thereof and all the consequential orders arising therefrom, pending hearing and determination of the intended appeal.
5. This Honourable court be pleased to extend the time within which to file an appeal against the judgment delivered in Kisii CMCC NO. E261 OF 2021 out of time.
6. The cost of the application be in the cause.
2. The grounds on the face of the application were that;
a) The respondent filed a suit against the respondent Vide Kisii CMCC no. E261 of 2021 seeking special and general damages and the respondent was awarded a sum of Ksh. 379, 888/= on 26.2.25 .
b) The applicant was aggrieved by t4e said judgment and wishes to file an appeal . the insurers of the applicant reviewed the judgment and instructed M/s Omwenga and co advocates to file an appeal against the said judgment .
c) By the time the said counsel got instructions to file the appeal on 8.5.25 , the 30 days to appeal had expired .
d) The delay in filing the appeal was caused by inadvertent mistake of the insurers of the applicant which is excusable .
e) The intended appeal raises triable issues and has high chances of success.
f) The intended appeal will be rendered nugatory unless the application is allowed as the respondent shall proceed to execute the said judgment .
g) The applicant is ready and willing to deposit the entire decretal sum in a joint interest earning account in the names of both counsel on record as security for performance of the decree pending hearing and determination of the appeal .
h) The applicant stands to suffer irreparable loss and damage should the orders sought be denied .
i) The application is made in good faith and without undue delay.
j) The Respondent will not suffer any prejudice if this application is allowed.
The application is based on the annexed affidavit (dated 16.5.25) sworn by Hendricus Osoro the director of the applicant
DETERMINATION
3. I have considered the Application herein. The same is not opposed .
Section 79G of the Civil Procedure Act provides as follows: -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.
4. Leave to file an appeal out of time is a discretionary matter, which discretion ought to be exercised judiciously.
5. In the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR, the Supreme Court derived the following principles to be considered when exercising its discretion to extend time to file an appeal out of time:
a. 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;
b. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;
c. Whether the court should exercise discretion to extend time, is a consideration to be made on a case-to-case basis;
d. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;
e. Whether there will be any prejudice suffered by the respondents if the extension is granted;
f. Whether the application has been brought without undue delay; and
g. Whether in certain cases, like election petitions, public interest should be a consideration for extending time.
6. In the case of Thuita Mwangi v Kenya Airways Ltd. [2003] eKLR, the Court of Appeal faced with an application for extension of time to file a fresh Notice of Appeal and Record of Appeal, the Court held as follows: -
“Over the years, the Court has, of course set out guidelines on what a single Judge should consider when dealing with an application for extension of time under rule 4 of the Rules. For instance, in Leo Sila Mutiso v Hellen Wangari Mwangi (Civil Application No. Nai 255 of 1997) (unreported), the Court expressed itself thus:“It is now 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 takes into account 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.”These, in general, are the things a judge exercising the discretion under rule 4 will take into account. We do not understand this list to be exhaustive; it was not meant to be exhaustive and that is clear from the use of the words “in general”. Rule 4 gives the single judge an unfettered discretion and so long as the discretion is exercised judicially, a judge would be perfectly entitled to consider any other factor outside those listed in the paragraph we have quoted above so long as the factor is relevant to the issue being considered. To limit such issues only to the four set out in the paragraph would be to fetter the discretion of single judge and as we have pointed out, the rule itself gives a discretion which is not fettered in anyway.
Again, as we have pointed out, we do not think the Court intended that the list of four items it set out in Mutiso’s case, ante, was ever meant or intended to be exhaustive. It is also clear that the third issue for consideration, namely, the chances of the appeal succeeding if the application is granted is merely stated as something for a “possible” consideration, not that it must be considered. This is understandable because the “chances of an appeal succeeding” is normally dealt with by this Court under the rubric of an “an arguable appeal” or “an appeal which is not frivolous” and the full Court normally considers that issue under rule 5(2) (b) of the rules when the question is whether or not there should be a stay of execution, an injunction and so on. The requirement for the consideration of whether an intended or proposed appeal has any chances of success appears to have its origins in the case Bhaichand Bhagwanji Shah v D Jamnadas & Co Ltd [1959] EA 838 where Sir Owen Corrie, Ag JA is recorded as saying at pg. 840 Letter I to pg 841 at Letter A:
“…..It is thus essential in my view, that an applicant for an extension of time under rule 9 should support his application by a sufficient statement of the nature of the judgment and of his reasons for desiring to appeal against it to enable the Court to determine whether or not a refusal of the application would appear to cause an injustice. In the applicant’s affidavit of September 19 last no indication whatever of the nature of the case is included and I hold that if that affidavit stood alone, not sufficient ground would have been shown for granting application….”
7. This was the holding in the cases of Charles Karanja Kiiru v Charles Githinji Muigwa [2017] eKLR; Omar Shurie v Marian Rashe Yafar [2020] eKLR; Edith Gichugu Koine v Stephen Njagi Thoithi [2014] eKLR where the Court of Appeal pronounced itself as such.
8. In application for leave to extend time to file and appeal out of time , the court are enjoined to consider :
i. length of delay.
ii. reasons for delay .
iii. whether the applicant has an arguable appeal . .
9. On stay pending appeal, Order 42 Rule 6 of the Civil Procedure Rules, 2010 provides as follows:-
Stay in case of appeal
[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 to have such order set aside.
[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.
[4] For the purposes of this rule an appeal to the Court of Appeal shall be deemed to have been filed when under the Rules of that Court notice of appeal has been given.
[5] An application for stay of execution may be made informally immediately following the delivery of judgment or ruling.
[6] Notwithstanding anything contained in subrule [1] of this rule the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with.
10. In the case of Vishram Ravji Halai vs. Thornton & Turpin Civil Application No. Nai. 15 of 1990 [1990] KLR 365, the Court of Appeal held that whereas the Court of Appeal’s power to grant a stay pending appeal is unfettered, the High Court’s jurisdiction to do so under Order 42 rule 6 of the Civil Procedure Rules is fettered by three conditions namely, establishment of a sufficient cause, satisfaction of substantial loss and the furnishing of security. Further the application must be made without unreasonable delay.
11. It is thus clear that in an application for stay pending appeal the court must consider;
a. Whether the applicant will suffer substantial loss unless the stay is granted.
b. Whether the application has been filed without indue delay
c. Whether the applicant has offered security for due performance
12. I am therefore tasked with determining whether the present application meets the requirements set out hereinabove.
Length of delay
13. On length of delay The Ruling in question was delivered on 25.2.25 and the instan12. application was mounted on 16.5.25 .The intended appeal ought to have been filed within 30 days from 25.2.25 i.e by 25.3.25 . The delay was thus of about 1 1/2 . This is not an undue delay.
Reason for the delay
14. The Deponent deponed that the delay was caused by an inadvertent mistake of his insurer who took time to give instructions for the appeal . This reason is plausible due to the bureaucracy of the insurance companies .
Arguable appeal
15. On whether the applicant has an arguable appeal , the draft memorandum of appeal raises an arguable issues of quantum and damages . The same is arguable .
Substantial loss
The applicant said that if execution is allowed to proceed he will suffer irreparable loss as the appeal will be rendered nugatory . This issue has not been argued as the respondent did not challenge the application. I appreciate that a decree holder is entitled to the fruit of his judgment . the court has a duty to balance this right and the right of the appellant to pursue his intended appeal . The appellant has offered to deposit the entire decretal sum in a joint interest earning account in the joint names of both law firms representing the parties herein . This is a reasonable proposal and it would ensure that there is security for due performance and the winning party at the end of the appeal will earn interest from the decretal sum . .
Conclusion not granted as execution will proceed
16. In the upshot I find that the application is merited .I issue the following orders :
a. The applicant is granted leave to file the intended appeal within 14 days from today.
b. Stay of execution of the judgment and decree in Kisii CMCC no. E261 of 2021 is granted pending hearing and determination of the intended appeal .
c. The condition for grant of prayer (b) is that the entire decretal sum be deposited in a joint interest earning account to be opened in the joint names of both law firms on record within 45 days from the date of this ruling .
d. Each party to bear his own costs.
T.A ODERA
JUDGE
19 .6.25
Delivered virtually Via teams plat form in the presence of :
MR Khaemba for the applicant .
N/A for the respondent .
CA : Kipchirchir
1. SPENT
2. SPENT
3. SPENT
4. THAT This Honourable court be pleased to grant an order of stay of execution of the judgment delivered on 26.2.2025 in Kisii CMCC NO. E261 OF 2021 , the decree issued thereof and all the consequential orders arising therefrom, pending hearing and determination of the intended appeal.
5. This Honourable court be pleased to extend the time within which to file an appeal against the judgment delivered in Kisii CMCC NO. E261 OF 2021 out of time.
6. The cost of the application be in the cause.
2. The grounds on the face of the application were that;
a) The respondent filed a suit against the respondent Vide Kisii CMCC no. E261 of 2021 seeking special and general damages and the respondent was awarded a sum of Ksh. 379, 888/= on 26.2.25 .
b) The applicant was aggrieved by t4e said judgment and wishes to file an appeal . the insurers of the applicant reviewed the judgment and instructed M/s Omwenga and co advocates to file an appeal against the said judgment .
c) By the time the said counsel got instructions to file the appeal on 8.5.25 , the 30 days to appeal had expired .
d) The delay in filing the appeal was caused by inadvertent mistake of the insurers of the applicant which is excusable .
e) The intended appeal raises triable issues and has high chances of success.
f) The intended appeal will be rendered nugatory unless the application is allowed as the respondent shall proceed to execute the said judgment .
g) The applicant is ready and willing to deposit the entire decretal sum in a joint interest earning account in the names of both counsel on record as security for performance of the decree pending hearing and determination of the appeal .
h) The applicant stands to suffer irreparable loss and damage should the orders sought be denied .
i) The application is made in good faith and without undue delay.
j) The Respondent will not suffer any prejudice if this application is allowed.
The application is based on the annexed affidavit (dated 16.5.25) sworn by Hendricus Osoro the director of the applicant
DETERMINATION
3. I have considered the Application herein. The same is not opposed .
Section 79G of the Civil Procedure Act provides as follows: -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.
4. Leave to file an appeal out of time is a discretionary matter, which discretion ought to be exercised judiciously.
5. In the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR, the Supreme Court derived the following principles to be considered when exercising its discretion to extend time to file an appeal out of time:
a. 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;
b. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;
c. Whether the court should exercise discretion to extend time, is a consideration to be made on a case-to-case basis;
d. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;
e. Whether there will be any prejudice suffered by the respondents if the extension is granted;
f. Whether the application has been brought without undue delay; and
g. Whether in certain cases, like election petitions, public interest should be a consideration for extending time.
6. In the case of Thuita Mwangi v Kenya Airways Ltd. [2003] eKLR, the Court of Appeal faced with an application for extension of time to file a fresh Notice of Appeal and Record of Appeal, the Court held as follows: -
“Over the years, the Court has, of course set out guidelines on what a single Judge should consider when dealing with an application for extension of time under rule 4 of the Rules. For instance, in Leo Sila Mutiso v Hellen Wangari Mwangi (Civil Application No. Nai 255 of 1997) (unreported), the Court expressed itself thus:“It is now 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 takes into account 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.”These, in general, are the things a judge exercising the discretion under rule 4 will take into account. We do not understand this list to be exhaustive; it was not meant to be exhaustive and that is clear from the use of the words “in general”. Rule 4 gives the single judge an unfettered discretion and so long as the discretion is exercised judicially, a judge would be perfectly entitled to consider any other factor outside those listed in the paragraph we have quoted above so long as the factor is relevant to the issue being considered. To limit such issues only to the four set out in the paragraph would be to fetter the discretion of single judge and as we have pointed out, the rule itself gives a discretion which is not fettered in anyway.
Again, as we have pointed out, we do not think the Court intended that the list of four items it set out in Mutiso’s case, ante, was ever meant or intended to be exhaustive. It is also clear that the third issue for consideration, namely, the chances of the appeal succeeding if the application is granted is merely stated as something for a “possible” consideration, not that it must be considered. This is understandable because the “chances of an appeal succeeding” is normally dealt with by this Court under the rubric of an “an arguable appeal” or “an appeal which is not frivolous” and the full Court normally considers that issue under rule 5(2) (b) of the rules when the question is whether or not there should be a stay of execution, an injunction and so on. The requirement for the consideration of whether an intended or proposed appeal has any chances of success appears to have its origins in the case Bhaichand Bhagwanji Shah v D Jamnadas & Co Ltd [1959] EA 838 where Sir Owen Corrie, Ag JA is recorded as saying at pg. 840 Letter I to pg 841 at Letter A:
“…..It is thus essential in my view, that an applicant for an extension of time under rule 9 should support his application by a sufficient statement of the nature of the judgment and of his reasons for desiring to appeal against it to enable the Court to determine whether or not a refusal of the application would appear to cause an injustice. In the applicant’s affidavit of September 19 last no indication whatever of the nature of the case is included and I hold that if that affidavit stood alone, not sufficient ground would have been shown for granting application….”
7. This was the holding in the cases of Charles Karanja Kiiru v Charles Githinji Muigwa [2017] eKLR; Omar Shurie v Marian Rashe Yafar [2020] eKLR; Edith Gichugu Koine v Stephen Njagi Thoithi [2014] eKLR where the Court of Appeal pronounced itself as such.
8. In application for leave to extend time to file and appeal out of time , the court are enjoined to consider :
i. length of delay.
ii. reasons for delay .
iii. whether the applicant has an arguable appeal . .
9. On stay pending appeal, Order 42 Rule 6 of the Civil Procedure Rules, 2010 provides as follows:-
Stay in case of appeal
[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 to have such order set aside.
[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.
[4] For the purposes of this rule an appeal to the Court of Appeal shall be deemed to have been filed when under the Rules of that Court notice of appeal has been given.
[5] An application for stay of execution may be made informally immediately following the delivery of judgment or ruling.
[6] Notwithstanding anything contained in subrule [1] of this rule the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with.
10. In the case of Vishram Ravji Halai vs. Thornton & Turpin Civil Application No. Nai. 15 of 1990 [1990] KLR 365, the Court of Appeal held that whereas the Court of Appeal’s power to grant a stay pending appeal is unfettered, the High Court’s jurisdiction to do so under Order 42 rule 6 of the Civil Procedure Rules is fettered by three conditions namely, establishment of a sufficient cause, satisfaction of substantial loss and the furnishing of security. Further the application must be made without unreasonable delay.
11. It is thus clear that in an application for stay pending appeal the court must consider;
a. Whether the applicant will suffer substantial loss unless the stay is granted.
b. Whether the application has been filed without indue delay
c. Whether the applicant has offered security for due performance
12. I am therefore tasked with determining whether the present application meets the requirements set out hereinabove.
Length of delay
13. On length of delay The Ruling in question was delivered on 25.2.25 and the instan12. application was mounted on 16.5.25 .The intended appeal ought to have been filed within 30 days from 25.2.25 i.e by 25.3.25 . The delay was thus of about 1 1/2 . This is not an undue delay.
Reason for the delay
14. The Deponent deponed that the delay was caused by an inadvertent mistake of his insurer who took time to give instructions for the appeal . This reason is plausible due to the bureaucracy of the insurance companies .
Arguable appeal
15. On whether the applicant has an arguable appeal , the draft memorandum of appeal raises an arguable issues of quantum and damages . The same is arguable .
Substantial loss
The applicant said that if execution is allowed to proceed he will suffer irreparable loss as the appeal will be rendered nugatory . This issue has not been argued as the respondent did not challenge the application. I appreciate that a decree holder is entitled to the fruit of his judgment . the court has a duty to balance this right and the right of the appellant to pursue his intended appeal . The appellant has offered to deposit the entire decretal sum in a joint interest earning account in the joint names of both law firms representing the parties herein . This is a reasonable proposal and it would ensure that there is security for due performance and the winning party at the end of the appeal will earn interest from the decretal sum . .
Conclusion not granted as execution will proceed
16. In the upshot I find that the application is merited .I issue the following orders :
a. The applicant is granted leave to file the intended appeal within 14 days from today.
b. Stay of execution of the judgment and decree in Kisii CMCC no. E261 of 2021 is granted pending hearing and determination of the intended appeal .
c. The condition for grant of prayer (b) is that the entire decretal sum be deposited in a joint interest earning account to be opened in the joint names of both law firms on record within 45 days from the date of this ruling .
d. Each party to bear his own costs.
T.A ODERA
JUDGE
19 .6.25
Delivered virtually Via teams plat form in the presence of :
MR Khaemba for the applicant .
N/A for the respondent .
CA : Kipchirchir