Introduction
1. The notice of motion application dated 14th April, 2025 seeks the following orders;
a) Leave to file an appeal to this court against the judgment of the lower court delivered on 14th October, 2024 in Iten SPM ELC NO. 13 OF 2020;
b) That an interim stay of execution and or further execution of the judgment be granted pending hearing and determination of the application and the appeal.
2. The application is anchored on the grounds on its face and supported by the affidavit of Benjamin Kiptoo, sworn on 14th April, 2025. He avers that the trial court delivered a judgment on 14th October 2024, in favour of the 1st defendant and allowed his counterclaim. Aggrieved by the decision, the plaintiff instructed his advocate to file an appeal. He avers that his advocate applied for a copy of certified typed proceedings vide a letter dated 16th October, 2024 but there was delay from the court in supplying them prompting his advocate to prepare a certificate of delay and submit it so that the same could be appended.
3. He further avers that the 1st respondent has already moved to the lower court to execute the judgement. He urges the court to allow his application as his appeal raises serious and weighty legal issues; that the suit property is in danger of being disposed of; that the applicant and his family stand to suffer loss that cannot be compensated monetarily; that the applicant is willing to follow any conditions the court will set including security for costs and that no prejudice will be suffered by the respondent if the orders sought are granted.
4. In opposition, the respondent filed a replying affidavit sworn by John Cheptorus on 7th July, 2025. He avers that the application is devoid of merit and is for dismissal with costs; that the power to grant an order stay of execution is discretionary and that no appeal or second appeal operates as a stay of execution or proceedings. On substantial loss, based on the case of James Wangalwa & Another v Agnes Naliaka Cheseto (2012) eklr, he avers that the fact that the process of execution has been put in motion or is likely to be put in motion does not amount to substantial loss. It is his contention that the purpose of an application for stay of execution pending an appeal is to preserve the subject matter in a dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful is not rendered nugatory but in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgement. He relied on the case of RWW V EKW (2019) eKLR and urged the court to dismiss the application with costs.
5. Pursuant to the directions given on 29th May 2025, the application was disposed of by way of written submissions. The 1st respondent filed his submissions on 23rd June 2025. By the time of writing this ruling, the applicant had not filed submissions and if he did, the submissions were not placed in the file.
1st Respondent’s submissions
6. The respondent identified the following as the issues for the court’s determination; -
i) Whether the application is merited.
ii) Whether allowing the appeal will result to injustice against the applicants.
7. On whether the application is merited, it is submitted that the instant application is a delaying tactic made in bad faith, is misconceived and ought to be dismissed with costs.
8. On whether allowing the appeal will result in an injustice against the applicants; based on the case of James Wangalwa & Another v Agnes Naliaka Cheseto (2012) eklr and Order 42 rule 6(2) of the Civil Procedure Rules, the 1st respondent submitted that the fact that the process of execution has been put in motion by itself, does not amount to substantial loss. He submitted that the applicant must establish other factors that show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the applicant as the successful party in the appeal.
9. The 1st respondent placed reliance on the case of Kenya Shell Ltd v Kibiru & Another (1986) eKLR which set out the principles that courts should consider when exercising discretion in determining whether the applicant has demonstrated the likelihood of suffering if stay is denied.
10. On costs, the 1st respondent relied on Section 27 of the Civil Procedure Act and placed reliance on the case of Republic v Rosemary Wairimu Munene, Ex-parte Applicant v Ihururu Dairy Farmers Co-operative no. 6 of 2014 and DGM v EWG (2021) eKLR.
Analysis and Determination.
11. I have carefully read and considered the application, the affidavit in support, the replying affidavit and the submissions by the 1st respondent and I find the sole issue for the court’s determination to be whether the applicant has made up a case for being granted the orders sought.
12. Section 79 G of the Civil Procedure Act and Section 16A of the Environment and Land Court Act provide that appeals from the subordinate courts must be filed within a period of 30 days from the date of decree or order from which the appeal lies. The proviso to that section, however allows for extension of time to appeal where good and sufficient cause has been shown. As such, extension of time within which an appeal ought to be filed is a matter of judicial discretion.
13. Enlargement of time is provided for under Order 50 Rule 6 of the Civil Procedure rules as follows;
“Where a limited time has been fixed for doing any act or taking any proceedings under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed...”
14. In the case of Nicholas Kiptoo Arap Korir Salat vs. IEBC & 7 others, SC Appl 16/2014 (2014) eKLR, the Supreme Court of Kenya laid down the following as principles that courts should consider when exercising discretion on whether to grant leave to file an appeal out of time;
(i) “Extension of time is not a right of a party. It is equitable remedy that is available to a deserving party at the discretion of the court;
(ii) The party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;
(iii) As to whether the court should exercise the discretion to extend time, is a consideration to be made a case by case basis;
(iv) Whether there is a reason for the delay; the delay should be explained to the satisfaction of the court;
(v) Whether there will be any prejudice to be suffered by the respondents if the extension is graned;
(vi) The application should have been brought without undue delay; and
(vii) In certain cases, like election petitions, public interest should be a consideration for extending time.”
15. In applying the law and the cited decisions to the circumstances of this case, it is noted that judgment was delivered by the trial court on 14th October, 2024 in the presence of the applicant’s counsel. The applicant cites the reason for delay in filing the appeal by182 calendar days to be failure by the court in supplying certified copies of the typed proceedings enable him file an appeal. He annexed a copy of a letter dated 24th October, 2024 requesting for certified typed proceedings and an un appended copy of certificate of delay.
16. Order 42 rule 1 of the Civil Procedure Rules provides: “Every appeal to the High Court shall be in the form of a memorandum of appeal signed in the same manner as a pleading.” From the above provision of the Law, certified typed proceedings are not required at the stage of filing a memorandum of appeal. It is at the point of compiling and filing the record of appeal, that certified typed proceedings are required as provided under Order 42 Rule 13 (4):
“4. Before allowing the appeal to go for hearing the judge shall be satisfied that the following documents are on the court record, and that such of them as are not in the possession of either party have been served on that party, that is to say—
(a)the memorandum of appeal;
(b)the pleadings;
(c)the notes of the trial magistrate made at the hearing;
(d)the transcript of any official shorthand, typist notes electronic recording or palantypist notes made at the hearing;
(e)all affidavits, maps and other documents whatsoever put in evidence before the magistrate;
(f)the judgment, order or decree appealed from, and, where appropriate, the order (if any) giving leave to appeal……”
17. The applicant’s counsel was present in court when judgement was delivered. Whilst, the applicant has attached a copy of the letter dated 16th October, 2024 requesting for certified typed proceedings and has given the reason for delay to be failure by the court in supplying the certified typed proceedings, the attached copy of the certificate of delay is not appended. Under the circumstances, this court is unable to determine whether it is true that the delay in obtaining typed proceedings was occasioned by the court.
18. In Alfred Induvuagwa Savatia v. Nandi Tea Estates & Ano. Civil Application No. 4 of 2018. [2018], the court held; -
“The primary reason given for the delay of over two years is that the delay was caused by failure to obtain certified copies of the proceedings. If this were so, the applicant ought to have annexed a certificate of delay. This was not done. The absence of a certificate of delay diminishes the value and weight to be given to the applicant’s explanation for delay. Accordingly, we agree with the learned single judge…”
19. Consequently, this court finds the reason given for failing to file an appeal on time to be unsatisfactory. In the end, I decline to exercise this court’s discretion in favour the applicant and I dismiss the application with costs to the respondent.
20. Orders accordingly.
Ruling dated, signed and delivered virtually at Iten this 17th November, 2025.
Ruling delivered virtually in the presence of;-
Ms. Tanui holding brief for Mr. Ngigi Mbugua/Applicant
Mr. Barmao for the Respondents
Court Assistant: Christine