1. The Applicant approached this court seeking orders thus;
1) Spent.
2) Spent.
3) This honourable court be pleased to grant the Applicant leave to appeal out of time in respect to the judgment/decree delivered in Nyahururu CMCC No. 259 of 2019 by Hon. N. Osoro SRM.
4) This honourable court be pleased to grant a temporary order of stay of execution of the judgment/or the decree delivered on 5 th November, 2025 and all consequential orders arising therefrom pending the hearing and determination of this application inter-parties.
5) This honourable court be pleased to grant an order of stay of execution of the judgment and/or the decree delivered on or about 5 th November, 2025 and all consequential orders arising therefrom pending the hearing and determination of the intended appeal herein.
6) This honorable court be pleased to issue an order allowing the Applicant to deposit half the decretal sum in a joint interest earning account in the names of counsels for both parties and the other half to be deposited in court as security pending hearing and determination of the intended appeal herein.
7) This honourable court be pleased to issue any other order as it may deem just, appropriate and expedient in the interest of justice.
8) Costs of this application be provided for.
2. The application is premised on grounds that the judgment was delivered in favour of the Respondents as against the Applicant where he was to shoulder 100% liability and the quantum of damages was assessed as follows;
- Pain and suffering Kshs.50,000/-
- Loss of expectation of life Kshs.100,000/-
- Special damages Kshs.1,241,561.50/-
3. That the delay in filing of the appeal was inadvertent and excusable due to delay in receiving instructions from the client. That the appeal has good chances of success and the Respondent will commence execution proceedings against the Applicant to his detriment. That the Applicant stands to suffer substantial loss and damage if orders sought are not granted and the intended appeal will be rendered nugatory which will curtail the Applicant’s right to appeal.
4. That the application is made timely and the Respondent will not be prejudiced. And, that the Applicant is willing and ready to deposit half the decretal sum in a joint interest earning account in the names of counsels for both parties and the other half to be deposited in court as security pending hearing of the intended appeal.
5. In the affidavit in support of the application, Doreen M. Nasimiyu counsel for the Applicant in conduct the matter depones that the Respondent’s means of income remain unknown hence there is a high propensity that they may not be able to refund the decretal sum in event that the appeal succeeds and it is in the interest of justice that the subject matter be preserved.
6. The application is unopposed.
7. Section 79G of the Civil Procedure Act provides thus;
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.
8. The court is seized of discretion to grant the order sought. The judgment was delivered on November, 2025 and the application was filed on 10 th December, 2025. The reason for the delay was failure by the instructing counsel to give instructions to appeal within statutory time. The delay is not inordinate. It will be in the interest of justice for the Applicant to be granted the opportunity to appeal. The Respondents having not responded it cannot be assumed that they will be prejudiced by the order if granted. Therefore, declining to grant the order sought may cause an injustice.
9. On the issue of stay of execution, the principle is provided by Order 42 Rule(1) (2) of the Civil Procedure Rules.
10. The substantial loss the Applicant will suffer is non-refund of the decretal sum if paid out, the appeal may be rendered nugatory yet it has a high chance of succeeding. And the willingness to provide security for due performance has been expressed. All these averments are not controverted.
11. In the premises, I allow the application and grant orders thus;
(i) The Applicant be and are hereby granted leave to appeal out of time within 30 days of today, 16 th February, 2026.
(ii) There be stay of execution of the Judgment and decree in Nyahururu CMCC No. E259 of 2019 pending hearing and determination of the intended appeal, on condition that the entire decretal sum be deposited in court for due performance within 30 days.
(iii) In default, orders granted to stand vacated and execution to issue.
(iv) Costs of the application to abide the appeal.
12. It is so ordered.
HCC MISC. APP E073 OF 2025 (RUL.) Page 2 of 2
1) Spent.
2) Spent.
3) This honourable court be pleased to grant the Applicant leave to appeal out of time in respect to the judgment/decree delivered in Nyahururu CMCC No. 259 of 2019 by Hon. N. Osoro SRM.
4) This honourable court be pleased to grant a temporary order of stay of execution of the judgment/or the decree delivered on 5 th November, 2025 and all consequential orders arising therefrom pending the hearing and determination of this application inter-parties.
5) This honourable court be pleased to grant an order of stay of execution of the judgment and/or the decree delivered on or about 5 th November, 2025 and all consequential orders arising therefrom pending the hearing and determination of the intended appeal herein.
6) This honorable court be pleased to issue an order allowing the Applicant to deposit half the decretal sum in a joint interest earning account in the names of counsels for both parties and the other half to be deposited in court as security pending hearing and determination of the intended appeal herein.
7) This honourable court be pleased to issue any other order as it may deem just, appropriate and expedient in the interest of justice.
8) Costs of this application be provided for.
2. The application is premised on grounds that the judgment was delivered in favour of the Respondents as against the Applicant where he was to shoulder 100% liability and the quantum of damages was assessed as follows;
- Pain and suffering Kshs.50,000/-
- Loss of expectation of life Kshs.100,000/-
- Special damages Kshs.1,241,561.50/-
3. That the delay in filing of the appeal was inadvertent and excusable due to delay in receiving instructions from the client. That the appeal has good chances of success and the Respondent will commence execution proceedings against the Applicant to his detriment. That the Applicant stands to suffer substantial loss and damage if orders sought are not granted and the intended appeal will be rendered nugatory which will curtail the Applicant’s right to appeal.
4. That the application is made timely and the Respondent will not be prejudiced. And, that the Applicant is willing and ready to deposit half the decretal sum in a joint interest earning account in the names of counsels for both parties and the other half to be deposited in court as security pending hearing of the intended appeal.
5. In the affidavit in support of the application, Doreen M. Nasimiyu counsel for the Applicant in conduct the matter depones that the Respondent’s means of income remain unknown hence there is a high propensity that they may not be able to refund the decretal sum in event that the appeal succeeds and it is in the interest of justice that the subject matter be preserved.
6. The application is unopposed.
7. Section 79G of the Civil Procedure Act provides thus;
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.
8. The court is seized of discretion to grant the order sought. The judgment was delivered on November, 2025 and the application was filed on 10 th December, 2025. The reason for the delay was failure by the instructing counsel to give instructions to appeal within statutory time. The delay is not inordinate. It will be in the interest of justice for the Applicant to be granted the opportunity to appeal. The Respondents having not responded it cannot be assumed that they will be prejudiced by the order if granted. Therefore, declining to grant the order sought may cause an injustice.
9. On the issue of stay of execution, the principle is provided by Order 42 Rule(1) (2) of the Civil Procedure Rules.
10. The substantial loss the Applicant will suffer is non-refund of the decretal sum if paid out, the appeal may be rendered nugatory yet it has a high chance of succeeding. And the willingness to provide security for due performance has been expressed. All these averments are not controverted.
11. In the premises, I allow the application and grant orders thus;
(i) The Applicant be and are hereby granted leave to appeal out of time within 30 days of today, 16 th February, 2026.
(ii) There be stay of execution of the Judgment and decree in Nyahururu CMCC No. E259 of 2019 pending hearing and determination of the intended appeal, on condition that the entire decretal sum be deposited in court for due performance within 30 days.
(iii) In default, orders granted to stand vacated and execution to issue.
(iv) Costs of the application to abide the appeal.
12. It is so ordered.
HCC MISC. APP E073 OF 2025 (RUL.) Page 2 of 2