1. Before this court is the Notice of Motion dated 4th July 2025 filed by the Applicant. It seeks, in substance, leave to file an appeal out of time against the ruling delivered in Kisii CMCC No. E069 of 2022, and an order staying proceedings in the subordinate court pending the hearing and determination of the intended appeal.
2. The application is supported by the affidavit of the Applicant. He depones that he is the defendant in Kisii CMCC No. E069 of 2022; that on 23rd May 2025 the lower court delivered a ruling dismissing his application to set aside an interlocutory judgment and to be allowed to defend the suit; that neither he nor his advocates were aware of that ruling until 3rd July 2025 when his advocate checked the court tracking system; that time for filing an appeal had by then lapsed; and that the lower court matter had been fixed for formal proof on 10th September 2025, hence the need for stay of proceedings. He has annexed a copy of the impugned ruling, a draft memorandum of appeal, and material showing the lower court mention and hearing dates.
3. The respondent opposes the motion through the replying affidavit of Winston Makori Magara, advocate. The respondent’s position is that the application is frivolous, intended to delay the lower court matter, and amounts to an abuse of process. He contends that counsel for the applicant was present on 24th April 2025 when the ruling date was given and later adjourned; that the applicant failed to exercise due diligence in following up the matter physically and through the Judiciary Court Tracking System; that the delay of about forty days is inordinate; and that the intended appeal is not arguable because the draft defence in the lower court raised no triable issues.
4. The parties also filed written submissions reiterating those rival positions. The applicant anchors the prayer for extension of time on the court’s discretion under section 95 of the Civil Procedure Act and section 79G of the Civil Procedure Act, and argues that the delay was explained by lack of notice of delivery of the ruling. The respondent, on the other hand, urges that the applicant was indolent and does not deserve the discretion of the court.
5. I have considered the motion, affidavits, annextures and the able filed by both parties submissions. In my view, the issues for determination are:
a. Whether the applicant has made out a case for leave to appeal out of time.
b. Whether the applicant has met the threshold for stay of proceedings in Kisii CMCC No. E069 of 2022.
c. What orders should issue as to costs.
A. Leave to appeal out of time
6. The applicable law is section 79G of the Civil Procedure Act, which requires appeals from subordinate courts to the High Court to be filed within thirty days from the date of the decree or order appealed from, but permits admission of an appeal out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time. The court also retains a general discretion to enlarge time under section 95 of the Civil Procedure Act.
7. The principles guiding the exercise of that discretion are settled. The court considers, among other things, the length of delay, the reason for the delay, whether the intended appeal is arguable, the degree of prejudice to the respondent, and whether the application was brought promptly once the applicant became aware of the decision.
8. The impugned ruling in the subordinate court is dated 23rd May 2025. The present application was filed on 4th July 2025. On the face of it, that is a delay of slightly over one month beyond the thirty days allowed by statute. The applicant’s explanation is that he only became aware of the ruling on 3rd July 2025 when his advocate checked the court tracking system. That position is expressly stated in the supporting affidavit and is also repeated in the grounds and submissions.
9. The respondent argues that counsel had been present earlier when the ruling date was given and later adjourned, and that there was therefore no sufficient reason for failing to file the appeal in time. That is a serious contention. However, from the material placed before this court, there is also a degree of uncertainty as to the actual notification and tracking of the ruling date. Notably, the annexed CTS extract shows “Ruling 2025-05-15 … ruling delivered-case closed,” while the copy of the subordinate court ruling itself is clearly dated, signed and delivered on 23rd May 2025. That discrepancy lends some support to the applicant’s complaint that there was confusion surrounding the delivery and publication of the ruling.
10. Further, once the applicant says he became aware of the ruling on 3rd July 2025, the present application was filed almost immediately, namely on 4th July 2025. That conduct does not bespeak indolence from the date of knowledge. In the circumstances of this case, and bearing in mind that the right of appeal ought not to be shut out where a plausible explanation has been offered, I am satisfied that the delay, though not insignificant, has been sufficiently explained.
11. I have also Perused the draft memorandum of appeal. Without delving into it’s merits and demerits , it raises complaints that the learned magistrate erred in finding that there had been proper service, in holding that the interlocutory judgment was regular, and in finding that the draft defence disclosed no triable issues. Those are not frivolous questions on their face. They are issues that an appellate court can properly interrogate.
12. On prejudice, the respondent will no doubt suffer further delay in the prosecution of the lower court suit. That prejudice is real. However, it can be alleviated by directing the applicant to file the appeal within a strict timeline and by limiting the stay to the expeditious prosecution of that appeal. On the other hand, if leave is refused and the lower court matter proceeds to formal proof before the applicant has ventilated his intended appeal, the appeal may be rendered largely academic.
13. I therefore find merit in the prayer for leave to appeal out of time.
B. Stay of proceedings
14. The applicant also seeks stay of proceedings in Kisii CMCC No. E069 of 2022 pending the hearing and determination of the intended appeal. A stay of proceedings is a serious order because it halts the progress of a suit and should therefore be granted sparingly, and only where the interests of justice demand it. Global Tours &Travels Limited; Nairobi HC Winding Up Cause No. 43 of 2000 persuasively stated thus;
“As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of Justice .... the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously” (emphasis added)
In Halsbury’s Law of England, 4th Edition. Vol. 37 page 330 and 332, that:
“The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the court’s general practice is that a stay of proceedings should not be imposed unless the proceeding beyond all reasonable doubt ought not to be allowed to continue.”
“This is a power which, it has been emphasized, ought to be exercised sparingly, and only in exceptional cases.”
“It will be exercised where the proceedings are shown to be frivolous, vexatious or harassing or to be manifestly groundless or in which there is clearly no cause of action in law or in equity. The applicant for a stay on this ground must show not merely that the plaintiff might not, or probably would not, succeed but that he could not possibly succeed on the basis of the pleading and the facts of the case.”
15. The material before court shows that after the dismissal of the application to set aside the interlocutory judgment, the respondent moved the lower court for a formal proof date, and the matter was fixed for hearing on 10th September 2025. If proceedings are not stayed and the matter proceeds to formal proof, judgment may follow before the intended appeal is heard. Since the intended appeal challenges the refusal to set aside the interlocutory judgment and the refusal to allow the applicant to defend the suit, allowing the lower court matter to proceed would create a real risk of rendering the appeal nugatory.
16. I am also satisfied that the application for stay was brought without undue delay once the applicant says he became aware of the ruling. The arguability threshold has been met at the prima facie level, and the scales of justice favour preserving the subject matter so that the intended appeal, once filed, is not overtaken by events.
17. In the result, I am persuaded that this is a proper case for a stay of proceedings, but on condition that ensure the intended appeal is filed and prosecuted without delay.
Disposition
18. Accordingly, I proceed to make the following orders:
a. Leave is hereby granted to the applicant to file an appeal out of time against the ruling delivered on 23rd May 2025 in Kisii CMCC No. E069 of 2022.
b. The memorandum of appeal shall be filed and served within Seven (7 ) days from the date hereof, failing which the leave hereby granted shall automatically lapse.
c. There shall be a stay of proceedings in Kisii CMCC No. E069 of 2022 pending the filing of the appeal and thereafter pending the hearing and determination of the appeal.
d. The applicant shall take all necessary steps to ensure that that appeal is expedited cause the appeal to be admitted and directions to be taken on priority basis.
e. .Costs of the application shall abide the outcome of the appeal.
It is so ordered.
T.A ODERA
JUDGE
17.3.26
DELIVERED, VIRTUALLY VIA TEAMS PLATFORM ON THIS AT THIS 11TH DAY OF MARCH 2026, IN THE PRESENCE OF MR MAGARA FOR THE RESPONDENT & MR KIPCHIRCHIR -COURT ASSISTANT M/S BEN K GICHANA IS FOR THE APPLICANT -ABSENT
2. The application is supported by the affidavit of the Applicant. He depones that he is the defendant in Kisii CMCC No. E069 of 2022; that on 23rd May 2025 the lower court delivered a ruling dismissing his application to set aside an interlocutory judgment and to be allowed to defend the suit; that neither he nor his advocates were aware of that ruling until 3rd July 2025 when his advocate checked the court tracking system; that time for filing an appeal had by then lapsed; and that the lower court matter had been fixed for formal proof on 10th September 2025, hence the need for stay of proceedings. He has annexed a copy of the impugned ruling, a draft memorandum of appeal, and material showing the lower court mention and hearing dates.
3. The respondent opposes the motion through the replying affidavit of Winston Makori Magara, advocate. The respondent’s position is that the application is frivolous, intended to delay the lower court matter, and amounts to an abuse of process. He contends that counsel for the applicant was present on 24th April 2025 when the ruling date was given and later adjourned; that the applicant failed to exercise due diligence in following up the matter physically and through the Judiciary Court Tracking System; that the delay of about forty days is inordinate; and that the intended appeal is not arguable because the draft defence in the lower court raised no triable issues.
4. The parties also filed written submissions reiterating those rival positions. The applicant anchors the prayer for extension of time on the court’s discretion under section 95 of the Civil Procedure Act and section 79G of the Civil Procedure Act, and argues that the delay was explained by lack of notice of delivery of the ruling. The respondent, on the other hand, urges that the applicant was indolent and does not deserve the discretion of the court.
5. I have considered the motion, affidavits, annextures and the able filed by both parties submissions. In my view, the issues for determination are:
a. Whether the applicant has made out a case for leave to appeal out of time.
b. Whether the applicant has met the threshold for stay of proceedings in Kisii CMCC No. E069 of 2022.
c. What orders should issue as to costs.
A. Leave to appeal out of time
6. The applicable law is section 79G of the Civil Procedure Act, which requires appeals from subordinate courts to the High Court to be filed within thirty days from the date of the decree or order appealed from, but permits admission of an appeal out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time. The court also retains a general discretion to enlarge time under section 95 of the Civil Procedure Act.
7. The principles guiding the exercise of that discretion are settled. The court considers, among other things, the length of delay, the reason for the delay, whether the intended appeal is arguable, the degree of prejudice to the respondent, and whether the application was brought promptly once the applicant became aware of the decision.
8. The impugned ruling in the subordinate court is dated 23rd May 2025. The present application was filed on 4th July 2025. On the face of it, that is a delay of slightly over one month beyond the thirty days allowed by statute. The applicant’s explanation is that he only became aware of the ruling on 3rd July 2025 when his advocate checked the court tracking system. That position is expressly stated in the supporting affidavit and is also repeated in the grounds and submissions.
9. The respondent argues that counsel had been present earlier when the ruling date was given and later adjourned, and that there was therefore no sufficient reason for failing to file the appeal in time. That is a serious contention. However, from the material placed before this court, there is also a degree of uncertainty as to the actual notification and tracking of the ruling date. Notably, the annexed CTS extract shows “Ruling 2025-05-15 … ruling delivered-case closed,” while the copy of the subordinate court ruling itself is clearly dated, signed and delivered on 23rd May 2025. That discrepancy lends some support to the applicant’s complaint that there was confusion surrounding the delivery and publication of the ruling.
10. Further, once the applicant says he became aware of the ruling on 3rd July 2025, the present application was filed almost immediately, namely on 4th July 2025. That conduct does not bespeak indolence from the date of knowledge. In the circumstances of this case, and bearing in mind that the right of appeal ought not to be shut out where a plausible explanation has been offered, I am satisfied that the delay, though not insignificant, has been sufficiently explained.
11. I have also Perused the draft memorandum of appeal. Without delving into it’s merits and demerits , it raises complaints that the learned magistrate erred in finding that there had been proper service, in holding that the interlocutory judgment was regular, and in finding that the draft defence disclosed no triable issues. Those are not frivolous questions on their face. They are issues that an appellate court can properly interrogate.
12. On prejudice, the respondent will no doubt suffer further delay in the prosecution of the lower court suit. That prejudice is real. However, it can be alleviated by directing the applicant to file the appeal within a strict timeline and by limiting the stay to the expeditious prosecution of that appeal. On the other hand, if leave is refused and the lower court matter proceeds to formal proof before the applicant has ventilated his intended appeal, the appeal may be rendered largely academic.
13. I therefore find merit in the prayer for leave to appeal out of time.
B. Stay of proceedings
14. The applicant also seeks stay of proceedings in Kisii CMCC No. E069 of 2022 pending the hearing and determination of the intended appeal. A stay of proceedings is a serious order because it halts the progress of a suit and should therefore be granted sparingly, and only where the interests of justice demand it. Global Tours &Travels Limited; Nairobi HC Winding Up Cause No. 43 of 2000 persuasively stated thus;
“As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of Justice .... the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously” (emphasis added)
In Halsbury’s Law of England, 4th Edition. Vol. 37 page 330 and 332, that:
“The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the court’s general practice is that a stay of proceedings should not be imposed unless the proceeding beyond all reasonable doubt ought not to be allowed to continue.”
“This is a power which, it has been emphasized, ought to be exercised sparingly, and only in exceptional cases.”
“It will be exercised where the proceedings are shown to be frivolous, vexatious or harassing or to be manifestly groundless or in which there is clearly no cause of action in law or in equity. The applicant for a stay on this ground must show not merely that the plaintiff might not, or probably would not, succeed but that he could not possibly succeed on the basis of the pleading and the facts of the case.”
15. The material before court shows that after the dismissal of the application to set aside the interlocutory judgment, the respondent moved the lower court for a formal proof date, and the matter was fixed for hearing on 10th September 2025. If proceedings are not stayed and the matter proceeds to formal proof, judgment may follow before the intended appeal is heard. Since the intended appeal challenges the refusal to set aside the interlocutory judgment and the refusal to allow the applicant to defend the suit, allowing the lower court matter to proceed would create a real risk of rendering the appeal nugatory.
16. I am also satisfied that the application for stay was brought without undue delay once the applicant says he became aware of the ruling. The arguability threshold has been met at the prima facie level, and the scales of justice favour preserving the subject matter so that the intended appeal, once filed, is not overtaken by events.
17. In the result, I am persuaded that this is a proper case for a stay of proceedings, but on condition that ensure the intended appeal is filed and prosecuted without delay.
Disposition
18. Accordingly, I proceed to make the following orders:
a. Leave is hereby granted to the applicant to file an appeal out of time against the ruling delivered on 23rd May 2025 in Kisii CMCC No. E069 of 2022.
b. The memorandum of appeal shall be filed and served within Seven (7 ) days from the date hereof, failing which the leave hereby granted shall automatically lapse.
c. There shall be a stay of proceedings in Kisii CMCC No. E069 of 2022 pending the filing of the appeal and thereafter pending the hearing and determination of the appeal.
d. The applicant shall take all necessary steps to ensure that that appeal is expedited cause the appeal to be admitted and directions to be taken on priority basis.
e. .Costs of the application shall abide the outcome of the appeal.
It is so ordered.
T.A ODERA
JUDGE
17.3.26
DELIVERED, VIRTUALLY VIA TEAMS PLATFORM ON THIS AT THIS 11TH DAY OF MARCH 2026, IN THE PRESENCE OF MR MAGARA FOR THE RESPONDENT & MR KIPCHIRCHIR -COURT ASSISTANT M/S BEN K GICHANA IS FOR THE APPLICANT -ABSENT