'1. In a ruling delivered on 25th July 2025, this Court found as follows in paragraph 30 thereof:-
“The applicants have argued that the subject matter is not a money decree and therefore that there is no need for security. At the same time, the Respondent has insisted on security if an order for stay is to be granted. Order for security is a matter of discretion. I have perused the warrants of arrest and note that they are regarding a decretal sum. I hereby direct that the applicants deposit Kes.3,072,800/- in court as security within 30 days of the date hereof, failing which the stay hereby granted will lapse. The said amount represents the 16.7% share of the deceased’s estate as established by the Honourable Kadhi, that the Respondent is entitled to.”
2. There was non-compliance with the said order as a result of which the Respondent executed by having the 1st Applicant arrested and committed to civil jail. It is the execution that triggered the application now before the Court.
3. The application before the Court is a Notice of Motion dated 8th September 2025. The application is brought under Order 42 Rule 6 and 51 Rule 1 of the Civil Procedure Rules, Sections 1A, 1B, 3A, and 78(1) (d) of the Civil Procedure Act, and Articles 25(c), 48, 50 (2), and 159 (2) (e) of the Constitution. The orders that are sought are, so far as relevant, for extension of time within which the Applicants can comply with the orders of this Court dated 25th July 2025 on payment of security and for the Court to deem security to be deposited upon the extension of time as having been properly deposited.
4. In the grounds of support of the application, the applicants stated that they were unable to raise the amount stated within the time given by the Court. Due to their failure, the 1st applicant was arrested and is now incarcerated at Shimo la Tewa Maximum Prison. It was further stated that the security sum had since been obtained and that it was necessary for the orders sought to be issued in the interest of justice, as applicants would suffer irreparable harm if the orders sought were not granted. The Applicants urged that the Respondent wouldn’t suffer prejudice, as they would have furnished security.
5. Having commenced execution, the Respondent withdrew the Notice of Appeal vide a Notice filed on 10th September 2025. The Respondent opposed the application vide a Replying Affidavit sworn on 11th September 2025. In the said affidavit, it was deposed that the order issued by the Court lapsed and stood dismissed, for all intents and purposes. The deponent stated that his attempts to communicate with the Applicants bore no fruit. It was denied that the Applicants had any difficulty raising the security sum. Further, the Respondent urged that no valid reason had been given for the extension of time.
6. Regarding prejudice, the Respondent urged that he would be prejudiced as he would be kept away from enjoying the fruits of a lawful judgment in his favour. The Court was therefore urged to dismiss the application.
7. The application was argued on 12th September 2025, due to its urgency. The arguments made by the counsels for the parties are broadly what I have already set out. I will therefore not rehash them here. I reserved my ruling for today on the grounds of its urgency.
8. It is a common ground that this Court has discretion to extend time. The counsels for the parties all agree that, like all discretions, the discretion to extend time must be exercised judiciously, based on sound principles, and not whimsically or capriciously.
9. What then should this Court do? What orders should be issued?
10. I must set out the legal provisions before considering the merits of the application. My first port of call is the Civil Procedure Rules. Order 50 Rule 6 states that:-
“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:
Provided that the costs of any application to extend such time and of any order made thereon shall be borne by the parties making such application, unless the court orders otherwise.”
11. It would seem to them that the principles governing the extension of time to comply with the orders of the Court are well understood. An application for extension of time may be filed even after the time within which the action could be done has lapsed. In my view, Order 50 Rule 6 of the Rules of Court is clear in its provisions.
12. What principles govern the grant of an application for extension of time? I am guided by the decision of the Supreme Court in the case of County Executive of Kisumu v County Government of Kisumu & 8 others [2017] KESC 16 (KLR), where the Supreme Court stated that:-
“23.It is trite law that in an application for extension of time, the whole period of delay should be declared and explained satisfactorily to the Court. Further, this Court has settled the principles that are to guide it in the exercise of its discretion to extend time in the Nicholas Salat case to which all the parties herein have relied upon. The Court delineated the following as:
the under-lying principles that a Court should consider in exercise of such discretion:
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 that seeks for extension of time has the burden of laying a 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-by-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.”
13. Although the above principles were in respect of extension of time to file a suit, it is my view that the said principles apply mutatis mutandis to the extension of time to make a deposit pursuant to the orders of the Court.
14. The amount sought to be deposed in this case is Kes 3,072,800.00. In the Kenyan context, this amount of money is colossal. The applicants aver that it took time to raise the same, and hence the delay. This explanation for the delay would appear to me as being reasonable.
15. I also note that the delay on the part of the Applicants was for a period of about 12 days. Given what I have stated above, I am convinced that the said period of time is not unreasonable. It is also the case that there has been an explanation for the want of timely compliance.
16. Will the respondent suffer prejudice? It has been stated that the Respondent is being kept away from the fruits of a judgment in his favour, whereas the Court notes the extension of time will create some inconvenience to the Respondent who will have to wait further before he can benefit from the judgment, assuming the appeal is dismissed, the said inconvinced does not amount in the eyes of this court to prejudice. The Court notes that it would serve the greater interest of justice for the appeal to be heard and determined on the merits and for the substratum of the appeal to be preserved. In my view, therefore, depositing the money in Court upon extension of time will not occasion the Respondent prejudice.
17. It is clear from the foregoing that I have found merit in the application. I allow the application and order that the Applicants comply with my orders of 25th July 2025 within the next two days of the date hereof. Upon deposit within the said timeline, the deposit will be deemed as having been properly made.
18. In the interest of justice, the appeal shall be heard and determined on a priority basis.
19. On costs, I award the Respondent costs of Kes.20,000/- to be paid within 14 days of the date hereof.
20. It is so ordered.
Dated and signed at Mombasa, this 15th day of September 2025. Delivered virtually through Microsoft TEAMS.
'
“The applicants have argued that the subject matter is not a money decree and therefore that there is no need for security. At the same time, the Respondent has insisted on security if an order for stay is to be granted. Order for security is a matter of discretion. I have perused the warrants of arrest and note that they are regarding a decretal sum. I hereby direct that the applicants deposit Kes.3,072,800/- in court as security within 30 days of the date hereof, failing which the stay hereby granted will lapse. The said amount represents the 16.7% share of the deceased’s estate as established by the Honourable Kadhi, that the Respondent is entitled to.”
2. There was non-compliance with the said order as a result of which the Respondent executed by having the 1st Applicant arrested and committed to civil jail. It is the execution that triggered the application now before the Court.
3. The application before the Court is a Notice of Motion dated 8th September 2025. The application is brought under Order 42 Rule 6 and 51 Rule 1 of the Civil Procedure Rules, Sections 1A, 1B, 3A, and 78(1) (d) of the Civil Procedure Act, and Articles 25(c), 48, 50 (2), and 159 (2) (e) of the Constitution. The orders that are sought are, so far as relevant, for extension of time within which the Applicants can comply with the orders of this Court dated 25th July 2025 on payment of security and for the Court to deem security to be deposited upon the extension of time as having been properly deposited.
4. In the grounds of support of the application, the applicants stated that they were unable to raise the amount stated within the time given by the Court. Due to their failure, the 1st applicant was arrested and is now incarcerated at Shimo la Tewa Maximum Prison. It was further stated that the security sum had since been obtained and that it was necessary for the orders sought to be issued in the interest of justice, as applicants would suffer irreparable harm if the orders sought were not granted. The Applicants urged that the Respondent wouldn’t suffer prejudice, as they would have furnished security.
5. Having commenced execution, the Respondent withdrew the Notice of Appeal vide a Notice filed on 10th September 2025. The Respondent opposed the application vide a Replying Affidavit sworn on 11th September 2025. In the said affidavit, it was deposed that the order issued by the Court lapsed and stood dismissed, for all intents and purposes. The deponent stated that his attempts to communicate with the Applicants bore no fruit. It was denied that the Applicants had any difficulty raising the security sum. Further, the Respondent urged that no valid reason had been given for the extension of time.
6. Regarding prejudice, the Respondent urged that he would be prejudiced as he would be kept away from enjoying the fruits of a lawful judgment in his favour. The Court was therefore urged to dismiss the application.
7. The application was argued on 12th September 2025, due to its urgency. The arguments made by the counsels for the parties are broadly what I have already set out. I will therefore not rehash them here. I reserved my ruling for today on the grounds of its urgency.
8. It is a common ground that this Court has discretion to extend time. The counsels for the parties all agree that, like all discretions, the discretion to extend time must be exercised judiciously, based on sound principles, and not whimsically or capriciously.
9. What then should this Court do? What orders should be issued?
10. I must set out the legal provisions before considering the merits of the application. My first port of call is the Civil Procedure Rules. Order 50 Rule 6 states that:-
“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:
Provided that the costs of any application to extend such time and of any order made thereon shall be borne by the parties making such application, unless the court orders otherwise.”
11. It would seem to them that the principles governing the extension of time to comply with the orders of the Court are well understood. An application for extension of time may be filed even after the time within which the action could be done has lapsed. In my view, Order 50 Rule 6 of the Rules of Court is clear in its provisions.
12. What principles govern the grant of an application for extension of time? I am guided by the decision of the Supreme Court in the case of County Executive of Kisumu v County Government of Kisumu & 8 others [2017] KESC 16 (KLR), where the Supreme Court stated that:-
“23.It is trite law that in an application for extension of time, the whole period of delay should be declared and explained satisfactorily to the Court. Further, this Court has settled the principles that are to guide it in the exercise of its discretion to extend time in the Nicholas Salat case to which all the parties herein have relied upon. The Court delineated the following as:
the under-lying principles that a Court should consider in exercise of such discretion:
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 that seeks for extension of time has the burden of laying a 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-by-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.”
13. Although the above principles were in respect of extension of time to file a suit, it is my view that the said principles apply mutatis mutandis to the extension of time to make a deposit pursuant to the orders of the Court.
14. The amount sought to be deposed in this case is Kes 3,072,800.00. In the Kenyan context, this amount of money is colossal. The applicants aver that it took time to raise the same, and hence the delay. This explanation for the delay would appear to me as being reasonable.
15. I also note that the delay on the part of the Applicants was for a period of about 12 days. Given what I have stated above, I am convinced that the said period of time is not unreasonable. It is also the case that there has been an explanation for the want of timely compliance.
16. Will the respondent suffer prejudice? It has been stated that the Respondent is being kept away from the fruits of a judgment in his favour, whereas the Court notes the extension of time will create some inconvenience to the Respondent who will have to wait further before he can benefit from the judgment, assuming the appeal is dismissed, the said inconvinced does not amount in the eyes of this court to prejudice. The Court notes that it would serve the greater interest of justice for the appeal to be heard and determined on the merits and for the substratum of the appeal to be preserved. In my view, therefore, depositing the money in Court upon extension of time will not occasion the Respondent prejudice.
17. It is clear from the foregoing that I have found merit in the application. I allow the application and order that the Applicants comply with my orders of 25th July 2025 within the next two days of the date hereof. Upon deposit within the said timeline, the deposit will be deemed as having been properly made.
18. In the interest of justice, the appeal shall be heard and determined on a priority basis.
19. On costs, I award the Respondent costs of Kes.20,000/- to be paid within 14 days of the date hereof.
20. It is so ordered.
Dated and signed at Mombasa, this 15th day of September 2025. Delivered virtually through Microsoft TEAMS.
'