1. The Applicant filed Notice of Motion dated 30th July 2025 seeking the following orders:
1) Spent.
2) THAT the firm of Karanja Maina & Co. Advocates be granted leave to come on record for the Appellants.
3) THAT the Appellant be granted leave to file a Memorandum of Appeal out of time and the attached draft Memorandum of Appeal be deemed as properly filed.
4) THAT the Honourable Court be pleased to grant a stay of execution of the Decree dated 9th May 2025 and issued on 21st July 2025 in Othaya Principal Magistrate's Court, Environment and Land Case No. E007 of 2025, pending the hearing and determination of this application.
5) THAT costs of this Application be borne by the Respondent.
2. The Application is supported by the affidavit of the Applicant, sworn on 30th July 2025. The Applicant states that on 22nd July 2025, she was served with a Decree dated 9th May 2025. She was shocked by the eviction Decree as she had lived and developed the subject land, MAHIGA/KAMOKO/149, together with her deceased husband for a period of over 50 years.
3. The Applicant deposes that she did not participate in the proceedings before the lower court, and the affidavit of service marked as "RWN 3B", sworn by Julius Kariuki Mundia, dated 15th January 2024, has errors, as it predates the institution of the suit on 9th August 2024.
4. The Applicant denies being served with the summons to enter appearance and the mention notice. Thus, she states, it is against the tenets of natural justice as she is condemned unheard. The Applicant believes that the Trial Court is in contravention of Articles 10, 47, 48 and 50 of the Constitution of Kenya, 2010, and Section 152E of the Land Act No. 6 of 2012.
5. The Applicant attached a draft memorandum of appeal, and deposed that she has good grounds of appeal which raise triable issues, and the appeal has a good chance of success.
The Respondent’s replying affidavit.
6. The Respondent swore an affidavit in response to application on 12th September 2025. He denied the contention that the Applicant was not served with the proceedings in the lower court, as service is evidenced by the affidavits of service on record. The Applicant was aware of the suit against her but chose to ignore it.
7. The Respondent contends that the Applicant seeks to deprive him enjoyment of the fruits of his judgment as a successful litigant. He also states that the green card exhibited by the Applicant as “RWN 2b” confirms that the land belongs to him and the Applicant has not shown tangible evidence of her claim to the land.
8. Further, it is the Respondent's case that the Applicant has not given a sufficient or reasonable explanation for the inordinate delay in filing the memorandum of appeal within the prescribed statutory period, stating that she slept on her rights and cannot seek to benefit from her own indolence.
9. The Respondent is apprehensive that he will suffer great prejudice, loss and injustice if the decree is stayed. He states that the Applicant has not demonstrated that she will suffer substantial loss if the decree is executed. For the stay to be granted, the Respondent prays that a deposit of Ksh.500,000/= be deposited as security for costs and other eventualities.
Applicants’ written submissions
10. Counsel for the Applicant submitted by quoting Order 42 rule 6(2) on stay of execution and the case of Muchiri vs. Rutere (2023) KEELC 22377 KLR, stating that the appeal will be rendered nugatory if stay is not granted and the appeal is successful.
11. The Counsel submits that the decision to grant leave to file a Memorandum of Appeal out of time is within the discretion of the court, which power is judicial in nature and must be confined to the rules of reason and justice, placing reliance on the authority of Njoroge v. Kimani(2022)KECA 1188(KLR). The Applicant claims she was unaware of the court proceedings until she was served with the Decree.
12. The Applicant stated that the Respondent is in the process of executing the orders in the Decree, as they have filed an application dated 26th August 2025 seeking to obtain security from the police to effect eviction of the Applicant.
13. On the matter of delay, it is submitted that the Applicant was served with the Decree on 22nd July 2023 and filed this application on the 30th of July 2025, thus there was no inordinate delay in filing the instant application.
14. The Applicants’ Counsel relied on Section 79G of the Civil Procedure Act, submitting that the delay in filing the appeal was neither deliberate nor contemptuous. Counsel cited
Global Tours & Travels Limited, Nairobi HC Winding Up Cause No.43 of 2000 Leo Sila Mutiso v. Rose Hellen Wangari Mwangi, Mbukoni Services Limited & Another v. Mutindi Reuben Nzili(2021) KEHC 4795 eKLR, Andrew Kiplagat Chemaringo v. Paul Kipkori Kibet(2018)eKLR
15. Counsel further submitted that the Memorandum of Appeal raises arguable grounds with a reasonable chance of success and that no real prejudice will be occasioned to the Respondents if the application is allowed, adding that the purpose of stay is to maintain the substratum of the case as it was held in the case of Consolidated Marine v. Nampijja & another Civil App. No. 93 of 1989.
The Respondent’s written submissions
16. The Respondent, who acts in person, submitted that he is the lawful and absolute proprietor of land parcel MAHIGA/KAMOKO/149, having been issued with a valid title deed on 5th June 2024. That Sections 24 and 26 of the Land Registration Act confer absolute ownership rights to a registered proprietor and protect such title unless fraud or illegality is proved.
17. On the Applicant’s prayer for stay, the Respondent submits that as per Order 42 Rule 6 (2) of the Civil Procedure Rules, the for grant of an order of stay are (a) that substantial loss may result to the Applicant unless the order is made; (b) that the application has been made without unreasonable delay; and (c) that such security as the court orders for the due performance of such decree or order as may ultimately be binding on the Applicant has been given.
18. Regarding substantial loss, it is submitted that the Applicant has not satisfied the Court of any substantial loss that will be occasioned in the event that stay is not granted. There will be no damage that will be occasioned upon the Applicant that cannot be compensated with costs. Counsel cited the following cases: Butt vs. Rent Restriction Tribunal [1979], James Wangalwa & Another vs. Agnes Naliaka Cheseto [2012] eKLR, Machira t/a Machira & Co. Advocates vs. East African Standard (No 2) (2002) KLR 63.
19. The Respondent also submitted that the Applicant has not provided any security for due performance of the decree, and if the stay is granted, it should be on condition that the Applicant deposits Kshs. 500,000/= as security on costs and other eventualities. They relied on the holding in the following authorities: Absalom Dova vs. Tarbo Transporters [2013] EKLR, RWW vs. EKW [2019] EKLR and Gianfranco Manenthi & another vs. Africa Merchant Assurancе Company Ltd [2019] eKLR.
20. Regarding the prayer for extension of time to file the Memorandum of Appeal, the Respondent quoted Section 79G of the Civil Procedure Act and summarised the requirements as follows:
a) Good and sufficient cause for the delay;
b) Length of delay is not inordinate;
c) Prompt action once the explanation became available;
d) No prejudice to the Respondent.
21. The Respondent submits that the Applicant has failed on all four requirements, by not providing any explanation for the delay, that the delay is inordinate and inexcusable, that the intended appeal is not arguable and that he will suffer prejudice if any further delay in executing the decree continues to deny him the enjoyment of proprietary rights protected under Sections 24 and 26 of the Land Registration Act.
Analysis and Determination
22. Having considered the instant application dated 30th July 2025, the replying affidavit and the rival submissions, the Court finds that the following issues arise for determination.
1) Whether the Applicant ought to be granted an extension of time to file a Memorandum of Appeal.
2) Whether the Applicant ought to be granted a stay of execution of the Magistrate’s Court decision delivered on 9th May 2025.
3) Whether the Applicant ought to be granted an extension of time to file a Memorandum of Appeal.
23. Judgment in the Trial Court, Othaya Principal Magistrates Court ELC case number E007 of 2025 was delivered on the 9th of May 2025, in the absence of the Applicant. The judgment directed as follows;
a) The defendant is hereby issued a 90-day notice from the date of this judgment to move and vacate the land title no. Mahiga/Kamoko/146.
b) General damages of Kes 80,000 for trespass, together with interest at court rates from the date of judgment until payment in full;
c) The plaintiff is also awarded the costs of the suit.
24. The Applicant argues that she was completely unaware of the proceedings before the Magistrates’ Court and that she only came to learn of their existence after she was served with the Decree on 22nd July 2025.
25. On the other hand, the Respondent contended that the Applicants were well aware of the ongoing situation as shown in the affidavit of service sworn on 31st December 2024, annexed to the Applicant’s supporting affidavit.
26. Section 79G of the Civil Procedure Act, CAP 21, Laws of Kenya, provides that the period allowed for filing an appeal from a subordinate court to the High Court is 30 days. The provision states 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 a good and sufficient cause for not filing the appeal in time”
27. Section 95 of the Civil Procedure Act also provides for the extension of time, stating that:
“Where any period is fixed or granted by the court for the doing of any act prescribed or allowed by this Act, the court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired.”
28. In the case of Leo Sila Mutiso v Hellen Wangari Mwangi [1999] 2 EA 231, the court provided for the discretion of the court and the matters to be taken into account before making orders and held as follows:
“It is now well 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.”
29. In the case of Aviation Cargo Support Limited v St. Mark Freight Services Limited [2014] eKLR, the court held that:
“The order whether or not to grant extension of time or leave to file and serve record of appeal out of time is discretionary. Such discretion is exercised judicially with a view to doing justice. Each case depends on its own merit. For the Court to exercise its discretion in favour of an applicant, the latter must demonstrate to the Court that the delay in lodging the record of appeal is not inordinate and where it is inordinate the applicant must give plausible explanation to the satisfaction of the Court why it occurred and what steps the applicant took to ensure that it came to Court as soon as was practicable. In the normal vicissitudes of life, deadlines will be missed even by those who are knowledgeable and zealous. The Courts are not blind to this fact. When this happens, the reason why it occurred should be explained satisfactorily, including the steps taken to ensure compliance with the law by coming to Court to seek extension of time or leave to file out of time."
30. The Court has considered the above-cited provisions of the law and the court decisions. On consideration of the length of the delay in filing the present application, the court has considered that the date of the Trial Court judgment is 9th May 2025. It is noted that further orders were made on 30th May 2025, correcting the land reference number for the suit land from Mahiga/Kamoko/146 to Mahiga/Kamoko/149. The Applicant states that she was served with the decree of the trial court on 22nd July 2025. The present application was filed on 30th July 2025.
31. The reason that the Applicant gives for the delay in filing the appeal within the time allowed by law is that she was unaware of the proceedings. The Court has noted that there are two identical affidavits of service on record filed before the Othaya Principal Magistrate’s Court in ELC case E004 of 2024. The two are sworn on 31st December 2024 and 5th January 2024, respectively. The deponent, one Julius Kariuki Mundia, stated that the Applicant was served with a mention notice as well as summons to enter appearance, plaint, witness statements and a list of documents dated 13th June 2024.
32. The Applicant disputes service and states that on 5th January 2024, when one of the affidavits was sworn, the suit before the Othaya Magistrates’ Court had yet to be instituted.
33. The length of delay in filing the appeal is about two months and a few days since judgment was delivered. The Court is of the view that the delay in filing the application is not inordinate. The reason for the delay is that the Applicant was unaware of the proceedings. Considering the challenge to the affidavit of service attached to both affidavits of the Applicant and the Respondent, the Court is satisfied that the reason given is plausible and finds that the Applicant had a good and sufficient cause for not filing the appeal in time.
34. In exercising its discretion on whether or not to extend time, the Court has considered the chances of success of the intended appeal. The Draft Memorandum of Appeal raises arguable issues which include inter alia whether or not the eviction notice subject matter of the suit before the trial court complied with the provisions of Section 152E of the Land Registration Act. The Court is of the view that it is in the interests of justice that the issues raised be ventilated in the intended appeal.
35. Regarding the prejudice that will be suffered by the respondent if the application is granted, the Court is of the view that the Respondent will not be prejudiced by an order allowing the Applicant to exercise his legal right of appeal. The court is mandated to balance the Respondent’s right to enjoy a successful judgment with the Applicant’s right to appeal.
Whether the Applicant ought to be granted a stay of the Magistrate’s Court decision delivered on 9th May 2025.
36. The Applicant seeks an order of stay of execution of the Decree issued by the trial court. The Judgment of the Court issued a 90-day notice of eviction from the suit land, awarded general damages for trespass of Ksh.80,000/= and costs of the suit.
37. Stay pending appeal is provided for under Order 42 Rule 6 of the Civil Procedure Rules, which states that:
“No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except appeal case of 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 the application being made, to consider such application and to make such order thereon as may to it seems 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.”
38. The purpose of an order of stay of execution pending appeal was emphasized in the case of RWW vs. EKW (2019) eKLR where the Court held that the purpose of an order of 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.
39. Similarly, in the case of Butt vs. Rent Restriction Tribunal [1979] eKLR, the Court of Appeal underscored the considerations for the grant or refusal of a stay of execution pending appeal. The court said that the power of the court to grant or refuse an application for a stay of execution is discretionary, and the discretion should be exercised in such a way as not to prevent an appeal. Secondly, the general principle in granting or refusing a stay is that if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should the appeal court reverse the judge's discretion. Thirdly, 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. Finally, the court, in exercising its discretion whether to grant or refuse an application for stay, will consider the special circumstances of the case and its unique requirements.
40. It was observed in James Wangalwa & Another vs. Agnes Naliaka Cheseto [2012] eKLR, which was relied on by the Applicants, that:
“The applicant must establish other factors which 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 ... 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.”
41. The Court notes the importance of balancing the plea for an order of stay of execution with the right of a successful litigant to enjoy the fruits of his judgment. In the case of Kenya Shell Limited v Benjamin Karuga Kibiru & another [1986] eKLR, Hancox JA was of the view that:
"As I said, I accept the proposition that if it is shown that execution or enforcement would render a proposed appeal nugatory, then a stay can properly be given. Parallel with that is the equally important proposition that a litigant, if successful, should not be deprived of the fruits of a judgment in his favour without just cause.”
42. The Court is satisfied from the evidence shown by the Applicant and the very nature of the claim before the Trial Court that the Applicant has possession of the suit land where she has constructed a house and carries on farming activities. The Court has also noted that the suit parcel of land has been the subject of disputes, as evidenced on the green card, which has recorded a number of court cases, cautions and prohibitory orders registered against the title, spanning from 1968 to June 2024 when the present suit was filed.
43. The Court is of the view that execution of the decree by way of eviction will prejudice the Applicant and render the appeal and any other proceedings nugatory and likely extinguish whatever rights she may have to the land.
44. On the matter of security for the due performance of such decree, the Court directs the Applicant to deposit in court the sum of Kshs 20,000/- within 14 days from the date of this order.
45. The final order of the Court on the Notice of Motion dated 30th July 2025 is as follows;
1) The Applicant is granted leave to file a Memorandum of Appeal within 14 days from the date hereof.
2) An order of stay of execution of the Decree dated 9th May 2025 and issued on 21st July 2025 in Othaya Principal Magistrate's Court, Environment and Land Case No. E007 of 2025 is hereby issued pending the hearing and determination of the appeal. In default of filing of a Memorandum of Appeal in compliance with order 1) above, the order of stay of execution will automatically lapse.
3) The Applicant shall deposit in court the sum of Kshs 20,000 as security for the due performance of the decree of the Trial Court within 14 days from the date hereof, in default of which order 2) above shall automatically lapse.
4) Costs of this application shall abide the outcome of the appeal
Dated, Signed and Delivered at Nyeri, this 5th Day of February 2026
Ruling read in open Court and virtually in the presence of:
Court Assistant Brian
Ms. Muruiki Holding Brief for.Karanja Maina for the Applicant
Wilson Ndungu, the Respondent in person