A. INTRODUCTION
1. Before this Court is the Notice of Motion dated 19th March 2026 brought under certificate of urgency by the Appellant/Applicant seeking the following substantive orders:
a. Leave to file an appeal out of time against the ruling and/or orders delivered on 30th October 2025 in Mombasa CMCC E1891 of 2025; and
b. An order staying proceedings in Mombasa CMCC E1891 of 2025 pending the hearing and determination of the intended appeal.
2. The application is supported by the affidavit of Dolphine Moindi sworn on 19th March 2026 together with the annexures thereto.
3. The Respondent opposed the application through a Replying Affidavit sworn by Mahad Abshir Ahmed.
4. Although the Respondent’s response was filed outside the prescribed timelines, the Respondent subsequently moved the Court seeking leave to regularize the filing. This Court has considered both the said application and the Replying Affidavit filed thereunder.
5. In keeping with the dictates of substantive justice and the constitutional imperative of fair hearing, the Court has considered the matter on its merits upon allowing both parties to ventilate their respective positions.
B. BACKGROUND
6. The dispute before the subordinate court arises from a claim for Kshs. 800,000/= allegedly arising out of an accident said to have occurred on 4th August 2022 involving motor vehicle registration number KBH 685N, which allegedly overturned and caused damage to goods in transit.
7. The Applicant contends that the suit before the subordinate court is statute-barred pursuant to Section 4(2) of the Limitation of Actions Act and that the learned trial magistrate improperly enlarged time under Section 27 of the Act.
8. According to the Applicant, the order extending time was granted irregularly and without sufficient legal basis, thereby warranting appellate intervention.
9. The Respondent, on the other hand, maintains that extension of time was lawfully obtained through the appropriate procedure and that proceedings before the subordinate court are properly grounded and ought to proceed to hearing.
10. The Respondent further contends that the present application is intended to delay the expeditious disposal of the lower court suit and prejudice the Respondent’s right to substantive adjudication.
C. ISSUES FOR DETERMINATION
11. Having considered the pleadings, affidavits, submissions, and the applicable law, the Court identifies the following issues for determination:
a. Whether the Applicant has satisfied the legal threshold for extension of time to file the appeal out of time; and
b. Whether this Court should grant an order staying proceedings in Mombasa CMCC E1891 of 2025 pending determination of the appeal.
D. APPLICABLE LEGAL PRINCIPLES
(a) Extension of Time
12. The principles governing extension of time are now well settled. In Nicholas Kiptoo Arap Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR , the Supreme Court held that extension of time is not a right but an equitable remedy exercisable at the discretion of the Court upon sufficient cause being shown.
13. The Court identified the following guiding principles:
i. Extension of time is an equitable remedy available only to a deserving party;
ii. The applicant bears the burden of laying a proper basis for the exercise of discretion;
iii. The Court must consider the length of delay and whether the same has been satisfactorily explained;
iv. The Court must consider whether the application has been brought without undue delay;
v. The Court must consider the degree of prejudice likely to be suffered by the respondent;
vi. The Court must consider whether the intended appeal is arguable; and
vii. The overarching consideration remains the interests of justice.
14. Further, Section 79G of the Civil Procedure Act requires appeals from subordinate courts to be filed within thirty (30) days from the date of decree or order appealed against, save where sufficient cause is shown for delay.
(b) Stay of Proceedings
15. Stay of proceedings is a discretionary and exceptional remedy granted sparingly and only where the interests of justice so demand.
16. The applicable principles were articulated in Global Tours & Travels Limited; Nairobi HC Winding Up Cause No. 43 of 2000 , where the Court held that in determining whether to grant stay of proceedings, the Court must weigh:
i. The interests of justice;
ii. The need for expeditious disposal of cases;
iii. The arguability of the intended appeal;
iv. Whether the appeal may be rendered nugatory absent stay;
v. Judicial economy and proportionality; and
vi. The likely prejudice to be suffered by either party.
17. The power to stay proceedings must therefore be exercised cautiously and judicially, bearing in mind that it temporarily interrupts a litigant’s right to pursue proceedings before a competent court.
E. ANALYSIS AND DETERMINATION
(a) Whether Leave to Appeal Out of Time Should Be Granted
18. The ruling and/or order sought to be appealed against was delivered on 30th October 2025.
19. The present appeal was filed on 16th March 2026, outside the statutory period prescribed under Section 79G of the Civil Procedure Act.
20. The central issue therefore becomes whether the delay has been satisfactorily explained.
21. This Court has carefully examined the pleadings, annexures, and the Court record together with the electronic case tracking system.
22. The record reveals that in MCCMISC E450 of 2025, the Applicant was not served with the proceedings relating to extension of time.
23. The Court further notes that service in Mombasa CMCC E1891 of 2025 was only effected upon the Applicant on or about 5th February 2026, following which subsequent formal service was undertaken.
24. The chronology presented before this Court demonstrates that the Applicant became aware of the impugned proceedings and orders in February 2026 and moved the Court shortly thereafter.
25. In the circumstances, the delay, though admittedly outside the statutory period, has been reasonably and satisfactorily explained.
26. The Court is equally satisfied that the application was brought without inordinate delay upon discovery of the impugned proceedings.
27. Further, this Court is unable at this interlocutory stage to conclude that the intended appeal is frivolous or devoid of merit.
28. The question whether the subordinate court properly invoked Section 27 of the Limitation of Actions Act to enlarge time is neither idle nor superficial. It raises a legitimate point of law deserving interrogation at the appellate stage.
29. The intended appeal is therefore arguable and not merely speculative.
30. The Respondent has argued that granting leave would occasion prejudice through delay of proceedings. While this concern is legitimate, the Court must balance such prejudice against the Applicant’s constitutional and statutory right of appeal.
31. Prejudice capable of being compensated by costs cannot ordinarily override the right of a litigant to ventilate a bona fide grievance before an appellate court.
32. In the premises, this Court is satisfied that sufficient basis has been laid for the exercise of discretion in favour of the Applicant.
(b) Consideration of the Respondent’s Late Filing
33. The Respondent admittedly filed its response outside the timelines prescribed by the Court.
34. However, the Respondent subsequently sought leave to regularize the position and the Court has duly considered both the application for leave and the Replying Affidavit filed.
35. This matter has therefore been determined on substantive merit rather than procedural default.
36. The Court is guided by the constitutional dictates of fair hearing under Article 50(1) and the obligation under Article 159(2)(d) of the Constitution to administer justice without undue regard to procedural technicalities.
37. Both parties have therefore been accorded a fair opportunity to present their respective positions before this Court.
(c) Constitutional and Jurisprudential Framework
38. This Court remains guided by the Constitution of Kenya, 2010 and particularly:
a. Article 48 on access to justice;
b. Article 47 on lawful, reasonable, and procedurally fair administrative action;
c. Article 50(1) on the right to a fair hearing; and
d. Article 159(2)(d) on substantive justice free from undue technicality.
39. Judicial discretion relating to extension of time must be exercised in a manner that advances rather than obstructs substantive justice.
40. Courts exist not merely to terminate disputes procedurally, but to facilitate fair, proportionate, and substantive adjudication of disputes placed before them.
41. Where a party demonstrates a plausible and satisfactory explanation for delay, the Court ought, where appropriate, to lean in favour of sustaining rather than extinguishing the right of appeal.
42. The appellate process forms an integral component of the constitutional architecture of fair hearing and access to justice.
43. To deny a party audience where delay has been reasonably explained would risk elevating procedural rigidity above substantive justice.
(d) Whether Stay of Proceedings Should Be Granted
44. The Applicant also seeks stay of proceedings in Mombasa CMCC E1891 of 2025 pending determination of the intended appeal.
45. As already observed, stay of proceedings is an exceptional remedy which must be exercised cautiously.
46. This Court has considered the nature of the intended appeal and the issues raised therein.
47. The intended appeal challenges the legality, propriety, and jurisdictional basis upon which extension of time was granted by the subordinate court.
48. Significantly, the material placed before this Court reveals that there is no detailed ruling explaining the rationale underpinning the order enlarging time. What exists on record is essentially the extracted order itself.
49. In the absence of a reasoned ruling, the appellate court would be deprived of the benefit of understanding the legal and factual basis upon which discretion was exercised by the subordinate court.
50. This factor alone renders the intended appeal neither idle nor frivolous.
51. Further, permitting the subordinate court proceedings to proceed to full hearing before determination of the appeal risks rendering the appellate process academic.
52. If the appeal ultimately succeeds on the question of limitation and extension of time, substantial judicial time and party resources would already have been expended in proceedings potentially undertaken without proper jurisdictional foundation.
53. The Court must equally guard against unnecessary procedural back-and-forth litigation that undermines judicial economy and efficient administration of justice.
54. In the peculiar circumstances of this matter, it is prudent that the foundational issue touching on limitation and extension of time be conclusively resolved before the subordinate court proceedings proceed further.
55. The balance of convenience, proportionality, and the interests of justice therefore favour preservation of the status quo pending determination of the appeal.
56. The prejudice likely to be occasioned to the Respondent by temporary stay is outweighed by the need to safeguard the integrity and utility of the appellate process.
F. FINDINGS
57. Consequently, this Court makes the following findings:
a. The delay in filing the appeal has been satisfactorily explained;
b. The application was filed without undue delay upon discovery of the impugned proceedings;
c. The intended appeal is arguable and raises legitimate points of law;
d. The Respondent’s response has been duly considered notwithstanding late filing;
e. Both parties have been accorded a fair opportunity to be heard;
f. The interests of justice favour extension of time and preservation of the appellate process through stay of proceedings.
58. The application therefore satisfies the threshold for exercise of this Court’s discretion.
G. ORDERS
59. Accordingly, the Notice of Motion dated 19th March 2026 is hereby allowed in the following terms:
a. Leave is hereby granted to the Applicant to file and serve the appeal out of time.
b. The Memorandum of Appeal already filed is deemed as duly filed upon payment of the requisite court fees, if any.
c. There shall be a stay of proceedings in Mombasa CMCC E1891 of 2025 pending hearing and determination of this appeal.
d. Costs of the application shall abide the outcome of the appeal.
60. It is so ordered.
DATED, SIGNED, AND DELIVERED AT MOMBASA THIS 13TH DAY OF MAY 2026.
HON. LADY JUSTICE W. K. MICHENI
JUDGE
1. Before this Court is the Notice of Motion dated 19th March 2026 brought under certificate of urgency by the Appellant/Applicant seeking the following substantive orders:
a. Leave to file an appeal out of time against the ruling and/or orders delivered on 30th October 2025 in Mombasa CMCC E1891 of 2025; and
b. An order staying proceedings in Mombasa CMCC E1891 of 2025 pending the hearing and determination of the intended appeal.
2. The application is supported by the affidavit of Dolphine Moindi sworn on 19th March 2026 together with the annexures thereto.
3. The Respondent opposed the application through a Replying Affidavit sworn by Mahad Abshir Ahmed.
4. Although the Respondent’s response was filed outside the prescribed timelines, the Respondent subsequently moved the Court seeking leave to regularize the filing. This Court has considered both the said application and the Replying Affidavit filed thereunder.
5. In keeping with the dictates of substantive justice and the constitutional imperative of fair hearing, the Court has considered the matter on its merits upon allowing both parties to ventilate their respective positions.
B. BACKGROUND
6. The dispute before the subordinate court arises from a claim for Kshs. 800,000/= allegedly arising out of an accident said to have occurred on 4th August 2022 involving motor vehicle registration number KBH 685N, which allegedly overturned and caused damage to goods in transit.
7. The Applicant contends that the suit before the subordinate court is statute-barred pursuant to Section 4(2) of the Limitation of Actions Act and that the learned trial magistrate improperly enlarged time under Section 27 of the Act.
8. According to the Applicant, the order extending time was granted irregularly and without sufficient legal basis, thereby warranting appellate intervention.
9. The Respondent, on the other hand, maintains that extension of time was lawfully obtained through the appropriate procedure and that proceedings before the subordinate court are properly grounded and ought to proceed to hearing.
10. The Respondent further contends that the present application is intended to delay the expeditious disposal of the lower court suit and prejudice the Respondent’s right to substantive adjudication.
C. ISSUES FOR DETERMINATION
11. Having considered the pleadings, affidavits, submissions, and the applicable law, the Court identifies the following issues for determination:
a. Whether the Applicant has satisfied the legal threshold for extension of time to file the appeal out of time; and
b. Whether this Court should grant an order staying proceedings in Mombasa CMCC E1891 of 2025 pending determination of the appeal.
D. APPLICABLE LEGAL PRINCIPLES
(a) Extension of Time
12. The principles governing extension of time are now well settled. In Nicholas Kiptoo Arap Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR , the Supreme Court held that extension of time is not a right but an equitable remedy exercisable at the discretion of the Court upon sufficient cause being shown.
13. The Court identified the following guiding principles:
i. Extension of time is an equitable remedy available only to a deserving party;
ii. The applicant bears the burden of laying a proper basis for the exercise of discretion;
iii. The Court must consider the length of delay and whether the same has been satisfactorily explained;
iv. The Court must consider whether the application has been brought without undue delay;
v. The Court must consider the degree of prejudice likely to be suffered by the respondent;
vi. The Court must consider whether the intended appeal is arguable; and
vii. The overarching consideration remains the interests of justice.
14. Further, Section 79G of the Civil Procedure Act requires appeals from subordinate courts to be filed within thirty (30) days from the date of decree or order appealed against, save where sufficient cause is shown for delay.
(b) Stay of Proceedings
15. Stay of proceedings is a discretionary and exceptional remedy granted sparingly and only where the interests of justice so demand.
16. The applicable principles were articulated in Global Tours & Travels Limited; Nairobi HC Winding Up Cause No. 43 of 2000 , where the Court held that in determining whether to grant stay of proceedings, the Court must weigh:
i. The interests of justice;
ii. The need for expeditious disposal of cases;
iii. The arguability of the intended appeal;
iv. Whether the appeal may be rendered nugatory absent stay;
v. Judicial economy and proportionality; and
vi. The likely prejudice to be suffered by either party.
17. The power to stay proceedings must therefore be exercised cautiously and judicially, bearing in mind that it temporarily interrupts a litigant’s right to pursue proceedings before a competent court.
E. ANALYSIS AND DETERMINATION
(a) Whether Leave to Appeal Out of Time Should Be Granted
18. The ruling and/or order sought to be appealed against was delivered on 30th October 2025.
19. The present appeal was filed on 16th March 2026, outside the statutory period prescribed under Section 79G of the Civil Procedure Act.
20. The central issue therefore becomes whether the delay has been satisfactorily explained.
21. This Court has carefully examined the pleadings, annexures, and the Court record together with the electronic case tracking system.
22. The record reveals that in MCCMISC E450 of 2025, the Applicant was not served with the proceedings relating to extension of time.
23. The Court further notes that service in Mombasa CMCC E1891 of 2025 was only effected upon the Applicant on or about 5th February 2026, following which subsequent formal service was undertaken.
24. The chronology presented before this Court demonstrates that the Applicant became aware of the impugned proceedings and orders in February 2026 and moved the Court shortly thereafter.
25. In the circumstances, the delay, though admittedly outside the statutory period, has been reasonably and satisfactorily explained.
26. The Court is equally satisfied that the application was brought without inordinate delay upon discovery of the impugned proceedings.
27. Further, this Court is unable at this interlocutory stage to conclude that the intended appeal is frivolous or devoid of merit.
28. The question whether the subordinate court properly invoked Section 27 of the Limitation of Actions Act to enlarge time is neither idle nor superficial. It raises a legitimate point of law deserving interrogation at the appellate stage.
29. The intended appeal is therefore arguable and not merely speculative.
30. The Respondent has argued that granting leave would occasion prejudice through delay of proceedings. While this concern is legitimate, the Court must balance such prejudice against the Applicant’s constitutional and statutory right of appeal.
31. Prejudice capable of being compensated by costs cannot ordinarily override the right of a litigant to ventilate a bona fide grievance before an appellate court.
32. In the premises, this Court is satisfied that sufficient basis has been laid for the exercise of discretion in favour of the Applicant.
(b) Consideration of the Respondent’s Late Filing
33. The Respondent admittedly filed its response outside the timelines prescribed by the Court.
34. However, the Respondent subsequently sought leave to regularize the position and the Court has duly considered both the application for leave and the Replying Affidavit filed.
35. This matter has therefore been determined on substantive merit rather than procedural default.
36. The Court is guided by the constitutional dictates of fair hearing under Article 50(1) and the obligation under Article 159(2)(d) of the Constitution to administer justice without undue regard to procedural technicalities.
37. Both parties have therefore been accorded a fair opportunity to present their respective positions before this Court.
(c) Constitutional and Jurisprudential Framework
38. This Court remains guided by the Constitution of Kenya, 2010 and particularly:
a. Article 48 on access to justice;
b. Article 47 on lawful, reasonable, and procedurally fair administrative action;
c. Article 50(1) on the right to a fair hearing; and
d. Article 159(2)(d) on substantive justice free from undue technicality.
39. Judicial discretion relating to extension of time must be exercised in a manner that advances rather than obstructs substantive justice.
40. Courts exist not merely to terminate disputes procedurally, but to facilitate fair, proportionate, and substantive adjudication of disputes placed before them.
41. Where a party demonstrates a plausible and satisfactory explanation for delay, the Court ought, where appropriate, to lean in favour of sustaining rather than extinguishing the right of appeal.
42. The appellate process forms an integral component of the constitutional architecture of fair hearing and access to justice.
43. To deny a party audience where delay has been reasonably explained would risk elevating procedural rigidity above substantive justice.
(d) Whether Stay of Proceedings Should Be Granted
44. The Applicant also seeks stay of proceedings in Mombasa CMCC E1891 of 2025 pending determination of the intended appeal.
45. As already observed, stay of proceedings is an exceptional remedy which must be exercised cautiously.
46. This Court has considered the nature of the intended appeal and the issues raised therein.
47. The intended appeal challenges the legality, propriety, and jurisdictional basis upon which extension of time was granted by the subordinate court.
48. Significantly, the material placed before this Court reveals that there is no detailed ruling explaining the rationale underpinning the order enlarging time. What exists on record is essentially the extracted order itself.
49. In the absence of a reasoned ruling, the appellate court would be deprived of the benefit of understanding the legal and factual basis upon which discretion was exercised by the subordinate court.
50. This factor alone renders the intended appeal neither idle nor frivolous.
51. Further, permitting the subordinate court proceedings to proceed to full hearing before determination of the appeal risks rendering the appellate process academic.
52. If the appeal ultimately succeeds on the question of limitation and extension of time, substantial judicial time and party resources would already have been expended in proceedings potentially undertaken without proper jurisdictional foundation.
53. The Court must equally guard against unnecessary procedural back-and-forth litigation that undermines judicial economy and efficient administration of justice.
54. In the peculiar circumstances of this matter, it is prudent that the foundational issue touching on limitation and extension of time be conclusively resolved before the subordinate court proceedings proceed further.
55. The balance of convenience, proportionality, and the interests of justice therefore favour preservation of the status quo pending determination of the appeal.
56. The prejudice likely to be occasioned to the Respondent by temporary stay is outweighed by the need to safeguard the integrity and utility of the appellate process.
F. FINDINGS
57. Consequently, this Court makes the following findings:
a. The delay in filing the appeal has been satisfactorily explained;
b. The application was filed without undue delay upon discovery of the impugned proceedings;
c. The intended appeal is arguable and raises legitimate points of law;
d. The Respondent’s response has been duly considered notwithstanding late filing;
e. Both parties have been accorded a fair opportunity to be heard;
f. The interests of justice favour extension of time and preservation of the appellate process through stay of proceedings.
58. The application therefore satisfies the threshold for exercise of this Court’s discretion.
G. ORDERS
59. Accordingly, the Notice of Motion dated 19th March 2026 is hereby allowed in the following terms:
a. Leave is hereby granted to the Applicant to file and serve the appeal out of time.
b. The Memorandum of Appeal already filed is deemed as duly filed upon payment of the requisite court fees, if any.
c. There shall be a stay of proceedings in Mombasa CMCC E1891 of 2025 pending hearing and determination of this appeal.
d. Costs of the application shall abide the outcome of the appeal.
60. It is so ordered.
DATED, SIGNED, AND DELIVERED AT MOMBASA THIS 13TH DAY OF MAY 2026.
HON. LADY JUSTICE W. K. MICHENI
JUDGE