Introduction
1. Before court is a Notice of Motion dated 29th June, 2023 filed by the appellant seeking the following orders;
a) Spent
b) That the court be pleased to enlarge the time for appealing and admits this appeal out of time.
c) That there be a stay of execution of the order made on 18th April, 2023 in Butali SPMC ELC Misc. App. No. 3 of 2023. John Kingetich Tabut –vs- Philip Kadagi Zablon pending the hearing and determination of this application in the first instance and thereafter pending the hearing and determination of this appeal.
d) That the costs of this application be provided for.
2. The application is premised on the grounds on its face and the supporting affidavit sworn by Margaret Afandi Kadagi. The applicant’s case is that on 18th April, 2023, the lower court at Butali delivered a ruling in Butali SPMC ELC Misc. Appl. No 3 of 2023 allowing the application filed therein. That being a widow, she was financially strained in obtaining funds to mount an appeal against the aforesaid decision which she was aggrieved with. That she received a letter from the County Surveyor stating that in June, 2023 he would be vising the suit property to implement the lower court order. She stated that the deceased’s family had been on the suit property for over 40 years and that she was ready to comply with orders of stay. She also argued that her appeal had high chances of success.
3. The application is opposed. The respondent filed a replying affidavit sworn on 24th September, 2024. He stated that there has been inordinate, unexplained and inexcusable delay in filing the instant application when the impugned ruling was delivered on 18th April, 2023. Further that the application was speculative and an abuse of the court process. He argued that the applicant had not met the threshold for stay of execution and extension of time and that she did not explain why she failed to obtain the ruling in good time when the same was uploaded on the Judiciary’s CTS on time. Further that she has failed to demonstrate substantial loss.
4. Parties were directed to file written submissions in support of their respective cases. On record are submissions filed by the respondent dated 14th February 2025, which this court has duly considered.
Analysis and Determination
5. The court has carefully considered the application, response and submissions filed. The only issue that arise for determination is whether the applicant has met the threshold for grant of orders for extension of time and stay of execution.
6. Section 79G of the Civil Procedure provides that;
“Every appeal from a subordinate court is 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 anytime 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 has good and sufficient cause for not filing the appeal in good time”.
7. Therefore, the period within which a party may appeal against the decision of a subordinate court is 30 days. However, this court has discretion on being satisfied that there is a good and sufficient cause for the delay, to extend time for filing appeal.
8. The power of the court to extend time is discretionary and must be exercised judiciously by interrogating the length and reasons for the delay, as well as the interests of justice.
9. In the case of Nicholas Kiptoo Arap Korir Salat –vs- Independent Electoral and Boundaries Commission & 7 Others (2014) e KLR, the Supreme Court held as follows;
(1) 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;
(2) A party who seeks for extension of time has the burden of laying the basis to the satisfaction of the court.
(3) Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis;
(4) Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;
(5) Whether there will be any prejudice suffered by the respondents if the extension is granted;
(6) Whether the application has been brought without undue delay; and
(7) Whether in certain cases, like election petitions, public interest should be a consideration for extending time.”
10. In the instant case, the impugned decision was delivered on 18th April, 2023, therefore, the applicant ought to have filed her appeal by 18th May, 2023. The Motion herein was filed on 29th June, 2023 which is a delay of one month and twelve days. The reasons given for the delay are that the applicant being a widow, was unable to immediately raise legal fees for legal representation and that there was a delay in accessing the ruling in question.
11. Although the respondent stated that the ruling was uploaded on the CTS, he did not state the date when that was done or provide any evidence to that effect. This court takes Judicial notice that hiring an advocate in our jurisdiction is not cheap and not everyone can afford it. In view of the fact that the delay is about a month and the reason thereof being inability to raise legal fees and access the ruling in time, this court is satisfied that the applicant’s explanation for the delay is satisfactory, the delay is not inordinate and therefore she deserves extension of time and an opportunity to be heard on appeal.
12. Regarding stay of execution pending appeal, Order 42 Rule 6 of the Civil Procedure Rules grants this court the power to order stay of execution pending appeal and provides as follows;
"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 from whose decision the appeal is preferred may apply to the appellate 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."
13. Therefore, where an applicant stands to suffer substantial loss and comes to court without inordinate delay, stay of execution may be granted. The discretion to grant stay of execution pending appeal ought to be exercised judiciously by considering whether the appeal would be rendered nugatory if stay is not granted and balancing the interests of the appellant as against the respondent’s interests in light of the interests of justice.
14. In the case of RWW v EKW [2019] e KLR, the court held that;
"The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in 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. However, 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 judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs. Indeed, to grant or refuse an application for stay of execution pending appeal is discretionary. The court when granting the stay however, must balance the interests of the appellant with those of the respondent."
15. In the instant case, it is clear from the titles presented before court that the applicant herein has been registered as owners of their parcels of land since 1983. The documents on record show that the applicant’s title was curved from a title held by the respondent’s deceased’s estate and consent for the transfer was given in 1981. It is not clear at this point why from 1981, the respondent filed a boundary dispute in the trial court, despite the fact that it is the respondent who transferred the land to the applicant. From the orders of the trial court a resurvey may affect the parties herein. The applicant states that she has been on the land for over 40 years, and that if the orders are executed she will be prejudiced and her appeal which has high chances of success, may be rendered nugatory.
16. I agree with the arguments of the appellant that interference with her stay before the appeal is heard may prejudice her and she may suffer substantial loss. In the premises, I find and hold that the prayer for stay of execution is merited.
17. In the end, I find and hold that the Notice of Motion dated 29th June, 2023 has merit and the same is hereby allowed as follows;
a) That the time for filing appeal against the order dated 18th April 2023 made in Butali ELC MISC. Appli. No. 3 of 2023 is hereby extended and the appeal filed herein is hereby admitted out of time.
b) That this court hereby orders stay of execution of the order dated 18th April 2023 made in Butali ELC Misc. Appl. No. 3 of 2023, pending hearing and determination of this appeal.
c) As the Appellant is to blame for the delay, I order that she shall bear the costs of the application herein.
18. It is so ordered.
DATED, SIGNED AND DELIVERED AT MACHAKOS VIRTUALLY THIS 27TH DAY OF FEBRUARY, 2025 THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM
In the presence of;
Mr. Wambua for the appellant
Mr. Orute for the Respondent
Court Assistant: M. Nguyai