1. In their Notice of Motion dated 8th May 2025, the applicants invoked sections 1A, 1B, 3A and 79G of the Civil Procedure Act seeking the following reliefs:
1. … Spent;
2. … Spent;
3. THAT this Honourable Court be pleased to grant a stay of execution of the judgment and/or decree delivered on 28th March 2025 for Kshs. 2,384,694.00 together with costs and interest pending the hearing and determination of the intended appeal;
4. THAT this Honourable Court be pleased to grant leave to the applicant (sic) to file an appeal out of time from the judgment and decree by Hon. Silas Kemei (CM) delivered (sic) 28th March 2025 in Mavoko MCCC No. E245 of 2024; Gideon Muthama Lucas vs. Pauline Katanu Paul & Gabriel Muthiani;
5. THAT in addition to prayer 4 above, the annexed memorandum of appeal be allowed;
6. THAT the costs of this application be in the cause.
2. The application is supported by the grounds on its face and the supporting affidavit of Esther Wanjiku Ndung’u, the legal officer of Fidelity Shield Insurance Limited, the applicant’s insurer, sworn on 8th May 2025. The applicant contends that in a judgment delivered on 28th March 2025 in Mavoko MCCC No. E245 of 2024, the respondent was awarded Kshs. 1,200,000.00 in general damages. That they are aggrieved and dissatisfied with that award, and intend to appeal against it.
3. The applicants explained that the delay in filing the appeal was caused by consultations between the insured and insurer on the best way forward. That, they only instructed their counsel on 3rd May 2025 resulting in a delay of ten days which they argue is not inordinate. They annexed a memorandum of appeal to demonstrate their intent to pursue the matter.
4. The applicants submit that the intended appeal raises serious triable issues of law and fact and thus ought not to be driven away from the seat of justice. They argue that denying them the right of appeal would be tantamount to occasioning a miscarriage of justice which is contrary to Article 50 of the Constitution. They contended that the respondent will suffer no prejudice, as he will have an opportunity to respond to the appeal. Further, if the decretal sum is paid, the respondent’s ability to refund the sums is untested. They added that execution was imminent hence the need for stay. Finally, they were ready and willing to comply with any conditions imposed by the court, including furnishing security for the due performance of the decree.
5. The respondent opposed the application through a replying affidavit sworn on 27th May 2025. He summarized the facts giving rise to the dispute. They depose that the applicants failed to disclose that they had already been granted 30 days stay of execution on 28th March 2025, therefore guilty of material misrepresentation. That they ought to have regularized their position within that period instead of seeking a second stay. Further, that the allegation that the delay was only 10 days was misleading and unjust. They urged that the applicants are not serious as they have neither applied for nor paid for typed proceedings.
6. The respondent contended that the applicants had previously, approached him with a view to settling the matter out of court, only to renege by filing the present application. He maintained that the judgment in his favor was regular and that no sufficient reason had been advanced to deny him the right to enjoy the fruits of that judgment. In his view granting the application would occasion a miscarriage of justice. Accordingly, he prayed that the application be dismissed with costs.
7. The application was canvassed through written submissions. The applicants filed joint submissions dated 26th September 2025, in which they urged the court to allow the application as prayed. The respondent, in his submissions dated 21st November 2025, equally argued at length that the application should be dismissed with costs.
8. I have considered the application, the affidavits in support and opposition, as well as the parties’ submissions and the applicable law. The applicants seek two substantive prayers namely; a stay of execution pending the hearing and determination of the intended appeal; and leave to appeal out of time.
9. The Court must first consider the question of whether leave should be granted. It is only upon the grant of such leave that the subsequent prayer for stay of execution may properly be entertained. The application seeks leave to file an appeal out of time. The power of the Court to enlarge time for filing an appeal out of time is expressly donated by Section 79G of the Civil Procedure Act which provides that:
“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.”
10. The principles governing leave to appeal out of time are settled. In the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral & Boundaries Commission & 7 others (2014) eKLR the Supreme Court stated as follows;
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 the discretion to extend time, is a consideration to be made on a case by 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.
g. Whether in certain cases, like election petitions, public interest should be a consideration for extending time.
11. Guided by the above authority, the successful applicant must demonstrate “good and sufficient cause” for not filing the appeal in time. In the present case, the application was filed approximately one month after the expiry of the statutory period. The applicants have explained that the delay was due to consultations, between the insured and the insurer, which this court finds to be a sufficient and bona fide reason in this circumstance. The delay is not excessive. Moreover, the intended appeal raises arguable issues, and the respondent will suffer no prejudice as he will have the opportunity to respond to the appeal.
12. I am therefore satisfied that the applicants have demonstrated good and sufficient cause for the delay and are deserving of the court’s discretion to extend time.
13. On the second limb of prayers, order 42, rule 6 of the Civil Procedure Rules provides that an order for stay of execution pending appeal may be granted if the applicant demonstrate that substantial loss may result unless the order is made, that the application has been brought without unreasonable delay and that security for the due performance of the decree is furnished.
14. In Butt vs. Rent Restriction Tribunal [1982] KLR 417, the Court of Appeal set out guiding principles for the exercise of discretion in applications for stay of execution:
“1. The power of the court to grant or refuse an application for a stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal.
2. The general principle in granting or refusing a stay is; if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should that appeal court reverse the judge’s discretion.
3. A judge should not refuse a stay if there are good grounds for granting it merely because in his opinion, a better remedy may become available to the applicant at the end of the proceedings.
4. The court in exercising its discretion whether to grant [or] refuse an application for stay will consider the special circumstances of the case and unique requirements. The special circumstances in this case were that there was a large amount of rent in dispute and the appellant had an undoubted right of appeal.
5. The court in exercising its powers under Order XLI rule 4(2)(b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security for costs as ordered will cause the order for stay of execution to lapse.”
15. Turning to the merits of the application, the applicants must demonstrate that substantial loss may result if stay is not granted. The Court of Appeal in Mukuma vs. Abuoga (1988) KLR 645 had this to say on substantial loss:
“the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”
16. The applicants have argued that if execution proceeds, there will be nothing left for the appellate court to consider. While it is trite law that execution is a lawful process, compelling reasons must be shown to justify its suspension. In the present case, I am persuaded that unless stay is granted, the intended appeal will be rendered moot.
17. The applicants have further submitted that the respondent is a man of straw, a fact not denied by the respondent. Consequently, it is not guaranteed that if execution proceeds and the appeal later succeeds, the respondent would be in a position to refund the decretal sum. The Court of Appeal addressed this concern in National Industrial Credit Bank Ltd v. Aquinas Francis Wasike & Another [2006] KECA 333 (KLR), where it held:
18. :
“This Court has said before and it would bear repeating that while the legal duty is on an applicant to prove the allegation that an appeal would be rendered nugatory because a respondent would be unable to pay back the decretal sum, it is unreasonable to expect such an applicant to know in detail the resources owned by a respondent or the lack of them. Once an applicant expresses a reasonable fear that a respondent would be unable to pay back the decretal sum, the evidential burden must then shift to the respondent to show what resources he has since that is a matter which is peculiarly within his knowledge — see for example section 112 of the Evidence Act, Chapter 80 Laws of Kenya.”
19. Applying this principle, I am persuaded that the applicants have demonstrated a reasonable apprehension that the respondent may not be able to refund the decretal sum if the appeal succeeds. The evidential burden therefore shifted to the respondent, who failed to discharge it.
20. On the question of delay, the record shows that the present application was filed ten days after the lapse of the interim stay of execution. The applicants explained that the delay was occasioned by consultations between themselves and their insurer. In my view, a delay of ten days is not inordinate and is sufficiently explained. The application therefore meets the second requirement for the grant of stay.
21. With respect to security, the applicants have expressed their willingness to abide by any conditions imposed by the court and to furnish security for the due performance of the decree. This satisfies the third requirement under Order 42 Rule 6 of the Civil Procedure Rules. Accordingly, I am satisfied that the applicants have met the threshold for the grant of stay of execution. The specific orders shall be set out at the conclusion of this ruling.
22. In view of the foregoing, the following are my final orders:
1. Leave is granted to the applicants to file and serve their memorandum of appeal within seven (7) days from the date of this order;
2. An order of stay of execution of the judgment and/or decree delivered on 28th March 2025 for Kshs. 2,384,694.00 together with costs and interest be and is hereby granted pending the hearing and determination of the intended appeal;
3. The applicants shall deposit the decretal sum of Kshs. 2,384,694.00 in a joint interest account held by the applicants’ and the respondent’s counsel in a reputable bank within 45 days from the date of this order;
4. If the order in (1) and (3) above are not complied with, the stay orders granted herein shall automatically lapse without any further reference to this court;
5. The costs of this application shall abide the outcome of the appeal.
It is so ordered.
Dated and Delivered at Machakos this 22nd day of January 2026.
1. … Spent;
2. … Spent;
3. THAT this Honourable Court be pleased to grant a stay of execution of the judgment and/or decree delivered on 28th March 2025 for Kshs. 2,384,694.00 together with costs and interest pending the hearing and determination of the intended appeal;
4. THAT this Honourable Court be pleased to grant leave to the applicant (sic) to file an appeal out of time from the judgment and decree by Hon. Silas Kemei (CM) delivered (sic) 28th March 2025 in Mavoko MCCC No. E245 of 2024; Gideon Muthama Lucas vs. Pauline Katanu Paul & Gabriel Muthiani;
5. THAT in addition to prayer 4 above, the annexed memorandum of appeal be allowed;
6. THAT the costs of this application be in the cause.
2. The application is supported by the grounds on its face and the supporting affidavit of Esther Wanjiku Ndung’u, the legal officer of Fidelity Shield Insurance Limited, the applicant’s insurer, sworn on 8th May 2025. The applicant contends that in a judgment delivered on 28th March 2025 in Mavoko MCCC No. E245 of 2024, the respondent was awarded Kshs. 1,200,000.00 in general damages. That they are aggrieved and dissatisfied with that award, and intend to appeal against it.
3. The applicants explained that the delay in filing the appeal was caused by consultations between the insured and insurer on the best way forward. That, they only instructed their counsel on 3rd May 2025 resulting in a delay of ten days which they argue is not inordinate. They annexed a memorandum of appeal to demonstrate their intent to pursue the matter.
4. The applicants submit that the intended appeal raises serious triable issues of law and fact and thus ought not to be driven away from the seat of justice. They argue that denying them the right of appeal would be tantamount to occasioning a miscarriage of justice which is contrary to Article 50 of the Constitution. They contended that the respondent will suffer no prejudice, as he will have an opportunity to respond to the appeal. Further, if the decretal sum is paid, the respondent’s ability to refund the sums is untested. They added that execution was imminent hence the need for stay. Finally, they were ready and willing to comply with any conditions imposed by the court, including furnishing security for the due performance of the decree.
5. The respondent opposed the application through a replying affidavit sworn on 27th May 2025. He summarized the facts giving rise to the dispute. They depose that the applicants failed to disclose that they had already been granted 30 days stay of execution on 28th March 2025, therefore guilty of material misrepresentation. That they ought to have regularized their position within that period instead of seeking a second stay. Further, that the allegation that the delay was only 10 days was misleading and unjust. They urged that the applicants are not serious as they have neither applied for nor paid for typed proceedings.
6. The respondent contended that the applicants had previously, approached him with a view to settling the matter out of court, only to renege by filing the present application. He maintained that the judgment in his favor was regular and that no sufficient reason had been advanced to deny him the right to enjoy the fruits of that judgment. In his view granting the application would occasion a miscarriage of justice. Accordingly, he prayed that the application be dismissed with costs.
7. The application was canvassed through written submissions. The applicants filed joint submissions dated 26th September 2025, in which they urged the court to allow the application as prayed. The respondent, in his submissions dated 21st November 2025, equally argued at length that the application should be dismissed with costs.
8. I have considered the application, the affidavits in support and opposition, as well as the parties’ submissions and the applicable law. The applicants seek two substantive prayers namely; a stay of execution pending the hearing and determination of the intended appeal; and leave to appeal out of time.
9. The Court must first consider the question of whether leave should be granted. It is only upon the grant of such leave that the subsequent prayer for stay of execution may properly be entertained. The application seeks leave to file an appeal out of time. The power of the Court to enlarge time for filing an appeal out of time is expressly donated by Section 79G of the Civil Procedure Act which provides that:
“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.”
10. The principles governing leave to appeal out of time are settled. In the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral & Boundaries Commission & 7 others (2014) eKLR the Supreme Court stated as follows;
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 the discretion to extend time, is a consideration to be made on a case by 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.
g. Whether in certain cases, like election petitions, public interest should be a consideration for extending time.
11. Guided by the above authority, the successful applicant must demonstrate “good and sufficient cause” for not filing the appeal in time. In the present case, the application was filed approximately one month after the expiry of the statutory period. The applicants have explained that the delay was due to consultations, between the insured and the insurer, which this court finds to be a sufficient and bona fide reason in this circumstance. The delay is not excessive. Moreover, the intended appeal raises arguable issues, and the respondent will suffer no prejudice as he will have the opportunity to respond to the appeal.
12. I am therefore satisfied that the applicants have demonstrated good and sufficient cause for the delay and are deserving of the court’s discretion to extend time.
13. On the second limb of prayers, order 42, rule 6 of the Civil Procedure Rules provides that an order for stay of execution pending appeal may be granted if the applicant demonstrate that substantial loss may result unless the order is made, that the application has been brought without unreasonable delay and that security for the due performance of the decree is furnished.
14. In Butt vs. Rent Restriction Tribunal [1982] KLR 417, the Court of Appeal set out guiding principles for the exercise of discretion in applications for stay of execution:
“1. The power of the court to grant or refuse an application for a stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal.
2. The general principle in granting or refusing a stay is; if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should that appeal court reverse the judge’s discretion.
3. A judge should not refuse a stay if there are good grounds for granting it merely because in his opinion, a better remedy may become available to the applicant at the end of the proceedings.
4. The court in exercising its discretion whether to grant [or] refuse an application for stay will consider the special circumstances of the case and unique requirements. The special circumstances in this case were that there was a large amount of rent in dispute and the appellant had an undoubted right of appeal.
5. The court in exercising its powers under Order XLI rule 4(2)(b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security for costs as ordered will cause the order for stay of execution to lapse.”
15. Turning to the merits of the application, the applicants must demonstrate that substantial loss may result if stay is not granted. The Court of Appeal in Mukuma vs. Abuoga (1988) KLR 645 had this to say on substantial loss:
“the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”
16. The applicants have argued that if execution proceeds, there will be nothing left for the appellate court to consider. While it is trite law that execution is a lawful process, compelling reasons must be shown to justify its suspension. In the present case, I am persuaded that unless stay is granted, the intended appeal will be rendered moot.
17. The applicants have further submitted that the respondent is a man of straw, a fact not denied by the respondent. Consequently, it is not guaranteed that if execution proceeds and the appeal later succeeds, the respondent would be in a position to refund the decretal sum. The Court of Appeal addressed this concern in National Industrial Credit Bank Ltd v. Aquinas Francis Wasike & Another [2006] KECA 333 (KLR), where it held:
18. :
“This Court has said before and it would bear repeating that while the legal duty is on an applicant to prove the allegation that an appeal would be rendered nugatory because a respondent would be unable to pay back the decretal sum, it is unreasonable to expect such an applicant to know in detail the resources owned by a respondent or the lack of them. Once an applicant expresses a reasonable fear that a respondent would be unable to pay back the decretal sum, the evidential burden must then shift to the respondent to show what resources he has since that is a matter which is peculiarly within his knowledge — see for example section 112 of the Evidence Act, Chapter 80 Laws of Kenya.”
19. Applying this principle, I am persuaded that the applicants have demonstrated a reasonable apprehension that the respondent may not be able to refund the decretal sum if the appeal succeeds. The evidential burden therefore shifted to the respondent, who failed to discharge it.
20. On the question of delay, the record shows that the present application was filed ten days after the lapse of the interim stay of execution. The applicants explained that the delay was occasioned by consultations between themselves and their insurer. In my view, a delay of ten days is not inordinate and is sufficiently explained. The application therefore meets the second requirement for the grant of stay.
21. With respect to security, the applicants have expressed their willingness to abide by any conditions imposed by the court and to furnish security for the due performance of the decree. This satisfies the third requirement under Order 42 Rule 6 of the Civil Procedure Rules. Accordingly, I am satisfied that the applicants have met the threshold for the grant of stay of execution. The specific orders shall be set out at the conclusion of this ruling.
22. In view of the foregoing, the following are my final orders:
1. Leave is granted to the applicants to file and serve their memorandum of appeal within seven (7) days from the date of this order;
2. An order of stay of execution of the judgment and/or decree delivered on 28th March 2025 for Kshs. 2,384,694.00 together with costs and interest be and is hereby granted pending the hearing and determination of the intended appeal;
3. The applicants shall deposit the decretal sum of Kshs. 2,384,694.00 in a joint interest account held by the applicants’ and the respondent’s counsel in a reputable bank within 45 days from the date of this order;
4. If the order in (1) and (3) above are not complied with, the stay orders granted herein shall automatically lapse without any further reference to this court;
5. The costs of this application shall abide the outcome of the appeal.
It is so ordered.
Dated and Delivered at Machakos this 22nd day of January 2026.