REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
MISCELLANEOUS CIVIL APPLICATION NO. E196 OF 2024
TITUS KIOKO MUIA .............................................................................. APPLICANT
-VERSUS-
ANGELINE KAMIYU MUTISYA (Suing as the legal representative
of the Estate of TITUS MUTISYA IKANU..............................................RESPONDENT
RULING
1. This ruling is on the Applicant’s application dated 5th July, 2024 seeking for the following Orders:
a) Spent
b) That this honourable court be pleased to extend time and grant leave to the applicant to file Memorandum of Appeal out of time against the
Judgment and decree of Honourable Paul. Wechuli, Senior Resident Magistrate, in Kithimani CMCC NO. E194 OF 2022 dated and delivered on 28th March, 2024;
c) That this Honourable Court be pleased to stay execution of the judgment delivered on 28th March, 2024 pending the hearing and determination of this Application and intended Appeal.
d) That the applicant to furnish this court with reasonable security in form of a bank guarantee.
e) Costs of the Application be in the cause.
2. The application is supported by the supporting affidavit sworn by the Applicant on 5th July 2024 and premised on the grounds on the face thereof. The Applicant’s case is that the judgement he seeks to appeal was delivered on 28th March 2024 and being aggrieved with the said judgement, instructed his advocates on record to lodge an appeal. the delay in lodging the appeal was occasioned by the need for communication between himself and his advocates on record in ascertaining the options available with regard to the judgement. The Applicant advised his advocates that he preferred an appeal owing to the high amount on quantum awarded to the Respondent. By the time the Applicant got back to his advocates in regard to his opinion to appeal, the time within which the appeal was to be lodged had lapsed.
3. The Applicant further states that he is apprehensive that the Respondent may levy execution against him. That his Insurer is willing to offer security for costs in form a Bank Guarantee and that his intended appeal has high chances of success. The application has been brought without unreasonable or undue delay.
4. The Applicant contends that as at the time of drafting and filing of these submissions the Respondent had not served her replying affidavit to the application.
5. The application is opposed by Angeline Kamiyu Mutisya the t Respondent vide her Replying Affidavit sworn on 29th August 2024. The Respondent avers that the application lacks merit and is an abuse of the court process and the same ought to be dismissed with costs as what is being sought by the Applicant is an equitable remedy that is only available to a party that is deserving of the same upon sufficient proof of the cause of delay. The Applicant herein has not attempted to demonstrate any cause of delay whatsoever required of him.
6. Directions were given for the application to be heard by way of written submissions. Both parties complied.
Analysis and determination
7. I have considered the application, the supporting affidavit, the replying affidavit and the rival submissions filed by the Parties’ counsel as well as the judicial decisions relied upon. In my view, the issues for determination are as follows:-
a. Whether the court should exercise its discretion to grant the applicant leave to file their appeal out of time;
b. Whether the applicant has met the prerequisite for grant of stay of execution pending appeal;
a. Whether the court should exercise its discretion to grant the applicant leave to file his appeal out of time;
8. Section 79G of the Civil Procedure Act states: -
“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 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.
9. It is clear from the wording of Section 79G of the Civil Procedure Act that before the court considers extension of time, the applicants must satisfy the court that that they have good and sufficient cause for filing the appeal out of time. This principle was enunciated in the case of Diplack Kenya Limited vs William Muthama Kitonyi [2018] eKLR that an applicant seeking enlargement of time to file an appeal or admission of an already filed appeal must show that he has a good cause for doing so.
10. The Supreme Court in the case of Nicholas Kiptoo Korir arap Salat vs IEBC and 7 Others [2014] eKLR enunciated the principles applicable in an application for leave to appeal out of time. The court stated inter alia that:-
“The underlying principles a court should consider in exercise of such discretion should include:-
a. Extension of time is not a right of any party. It is an equitable remedy that is only available to a deserving party at the discretion of the court;
b. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;
c. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case by case basis;
d. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;
e. Whether there will be any prejudice suffered by the respondent if the extension is granted;
f. Whether the application has been brought without undue delay.
11. Similarly in the case of Paul Musili Wambua vs Attorney General & 2 Others [2015] eKLR, the Court of Appeal in considering an application for extension of time and leave to file the Notice of Appeal out of time stated the following:-
“…….it is now settled by a long line of authorities by this court that the decision of whether or not to extend the time for filing an appeal the Judge exercises unfettered discretion. However, in the exercise of such discretion, the court must act upon reason(s) not based on whim or caprice. In general, the matters which a court takes into account in deciding whether or not to grant an extension of time are; the length of delay, the reason for the delay, the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the application is granted.”
12. Applying the above principles to the present case, the judgment herein was delivered on 28.03.2024 and the appeal ought to have been filed by 28.04.2024. The Applicant filed the current application together with the annexed Memorandum of Appeal on 11.07.2024. This is about three (3) months outside the time limited for filing an appeal. The Applicant has attributed the delay in filing her appeal to the need for communication between himself and his advocates on record in ascertaining the options available with regard to the judgement. The Applicant advised his advocates that he preferred an appeal owing to the high amount on quantum awarded to the Respondent. By the time the Applicant got back to his advocates in regard to his opinion to appeal
13. It is my position that nothing stopped the Applicant from allowing his Advocates file a Memorandum of Appeal within the stipulated 30 days and if need be, upon the issuing of further instructions, apply to make amendments if necessary.
14. I consider the three (3) months delay to be inordinate delay and the reasons for the delay not to have been satisfactorily explained to the court as required by the law. In my view, the Applicant has not given any plausible reasons for the delay in filing the appeal.
15. I have perused the intended Memorandum of Appeal and the judgment of the trial court and noted that the appeal faults the trial court on both liability and assessment of damages which they claim to be excessively high. As such, the appeal cannot be said to be without merit although at this juncture, I will restrain from delving into the merits of the appeal. It is my view that the Applicant ought to be given a chance to file his appeal out of time and prosecute it on merits.
b. Whether the applicant has met the prerequisite for grant of stay of execution pending appeal;
16. It is trite law that an appeal does not operate as an automatic stay of execution. The conditions which a party must establish in order for the court to order stay of execution are provided for under Order 42 Rule 6(2) Civil Procedure Rules. Order 42 Rule 6 of the Civil Procedure Rules stipulates:-
1.“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 orders set aside.
2. No order for stay of execution shall be made under sub rule 1 unless:-
a. The Court is satisfied that substantial loss may result to the 1st 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.
17. Thus, under Order 42 Rule 6(2) of the Civil Procedure Rules, an applicant should satisfy the court that:
1. Substantial loss may result to him/her unless the order is made;
2. That the application has been made without unreasonable delay; and
3. The applicant has given such security as the court orders for the due performance of such decree or order as may ultimately be binding on him.
18. Substantial loss was clearly explained in the case of James Wangalwa & Another vs Agnes Naliaka Cheseto [2012] eKLR:-
“No doubt in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process. 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”
19. The Applicant contend that he is apprehensive that following the judgment of Hon. Paul Matanda Wechuli delivered on 28th March, 2024 in Kithimani MCCC No. E194 of 2022, the Respondent is likely to proceed with execution of the said judgment against the Applicant. Such extreme and highly prejudicial consequences before the hearing and determination of the Appeal would subvert the ends of justice
20. It is trite law that execution is a lawful process and it is not a ground for granting stay of execution. The Applicants are required to show the manner in which execution will irreparably affect them or will alter the status quo to their detriment therefore rendering the appeal nugatory. The Applicant have failed to demonstrate substantial loss in my considered view.
21. On whether the application has been made without unreasonable delay. Judgment at the trial court was delivered on 28.03.2024 and the appeal ought to have been filed by 28.04.2024. The Applicants filed the current application together with the annexed Memorandum of Appeal on 11.07.2024. This is about three months outside the time limited for the application. This period is inordinate and inexcusable, however as already observed the Applicant deserves to be heard on his appeal.
22. On the issue of security for costs, the purpose of security was explained in the case of Arun C. Sharma vs Ashana Raikundalia t/a Raikundalia & Co. Advocates & 2 Others [2014] eKLR the court stated:-
“The purpose of the security needed under Order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the applicant. It is not to punish the judgment debtor…..Civil process is quite different because in civil process the judgment is like a debt hence the applicants become and are judgment debtors in relation to the respondent. That is why any security given under Order 42 Rule 6 of the Civil Procedure Rules acts as security for the due performance of such decree or order as may ultimately be binding on the applicants. I presume the security must be one which can serve that purpose.
23. Evidently, the issue of security is discretionary and it is upon the court to determine it and set its terms. The trial court entered judgment for Kshs.4,115,690/= for the Respondent as against the Applicant. The Applicant at paragraph 15 of the supporting affidavit is not opposed to giving a Bank Guarantee by his Insurer through Family Bank as security for the issuance of stay orders pending hearing and determination of the Appeal.
24. My perusal at the attached Bank Guarantee which by Family Bank shows that the same is for a period of only 12 months from 6th July, 2023 and that means that the same expired on 6d1 July, 2024 and there is no proof that has been renewed or that there is absolutely guarantee that the same will be renewed and yet there is no party that is aware how long the intended appeal will take to be heard and determined. Further, the said Bank Guarantee does not apply strictly to this matter and the Bank is not a party to these proceedings in order for it to be bound by whatever orders that this court gives. I find the Bank Guarantee not to be proper and adequate security.
25. It is imperative that the right of appeal must be balanced against an equally weighty rigid right of the plaintiff/claimant to enjoy the fruits of the judgment delivered in his/her favour. In the case of Samvir Trustee Limited vs Guardian Bank Limited [2007] eKLR the court stated:-
“The Court in considering whether to grant or refuse an application for stay is empowered to see whether there exist any special circumstances which can sway the discretion of the court in a particular manner. But the yardstick is for the court to balance or weigh the scales of justice by ensuring that an appeal is not rendered nugatory while at the same time ensuring that a successful party is not impeded from the enjoyment of the fruits of his judgment. It is a fundamental factor to bear in mind that a successful party is prima facie entitled to fruits of his judgment; hence the consequence of a judgment is that it has defined the rights of a party with definitive conclusion.”
26. Consequently, I do find that the Applicant is entitled to pursue his appeal on merit. I do allow the application dated 05.07.2024 on the following conditions:
a Leave is granted to the Applicant to file appeal out of time against the judgment delivered by Honourable Paul. Wechuli, Senior Resident Magistrate, in Kithimani CMCC NO. E194 OF 2022 dated and delivered on 28th March, 2024.
b The Applicant shall to file and serve his Memorandum of Appeal as per the attached draft within Seven (7) days hereof and thereafter to compile, file and serve the Record of Appeal within Forty-Five (45) days of this ruling in default, appropriate directions shall be given on matter.
c. Execution of the Judgment/decree in Kithimani CMCC NO. E194 of 2022 dated and delivered on 28th March, 2024 is hereby stayed pending the hearing and determination of the appeal on condition that the Applicant shall deposit half the decretal amount into court OR into a joint interest earning Bank account to be opened in a reputable Bank in the names of the Advocates’ Law firms on record within Forty-Five (45) days hereof in default the Respondents will be at liberty to execute.
d. The Applicant shall pay to the Respondents throw away costs of this application assessed at Kshs.15,000/=.
e. A Mention date to be fixed to confirm compliance with order 2, 3 and 4 above and for further directions.
f. This Miscellaneous file will be closed on the next mention date.
It is hereby so ordered.
RULING WRITTEN, DATED & SIGNED AT MACHAKOS THIS 9TH DECEMBER 2025
NOEL I. ADAGI
JUDGE
DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 9TH DECEMBER 2025
In the presence of:-
IN THE HIGH COURT OF KENYA AT MACHAKOS
MISCELLANEOUS CIVIL APPLICATION NO. E196 OF 2024
TITUS KIOKO MUIA .............................................................................. APPLICANT
-VERSUS-
ANGELINE KAMIYU MUTISYA (Suing as the legal representative
of the Estate of TITUS MUTISYA IKANU..............................................RESPONDENT
RULING
1. This ruling is on the Applicant’s application dated 5th July, 2024 seeking for the following Orders:
a) Spent
b) That this honourable court be pleased to extend time and grant leave to the applicant to file Memorandum of Appeal out of time against the
Judgment and decree of Honourable Paul. Wechuli, Senior Resident Magistrate, in Kithimani CMCC NO. E194 OF 2022 dated and delivered on 28th March, 2024;
c) That this Honourable Court be pleased to stay execution of the judgment delivered on 28th March, 2024 pending the hearing and determination of this Application and intended Appeal.
d) That the applicant to furnish this court with reasonable security in form of a bank guarantee.
e) Costs of the Application be in the cause.
2. The application is supported by the supporting affidavit sworn by the Applicant on 5th July 2024 and premised on the grounds on the face thereof. The Applicant’s case is that the judgement he seeks to appeal was delivered on 28th March 2024 and being aggrieved with the said judgement, instructed his advocates on record to lodge an appeal. the delay in lodging the appeal was occasioned by the need for communication between himself and his advocates on record in ascertaining the options available with regard to the judgement. The Applicant advised his advocates that he preferred an appeal owing to the high amount on quantum awarded to the Respondent. By the time the Applicant got back to his advocates in regard to his opinion to appeal, the time within which the appeal was to be lodged had lapsed.
3. The Applicant further states that he is apprehensive that the Respondent may levy execution against him. That his Insurer is willing to offer security for costs in form a Bank Guarantee and that his intended appeal has high chances of success. The application has been brought without unreasonable or undue delay.
4. The Applicant contends that as at the time of drafting and filing of these submissions the Respondent had not served her replying affidavit to the application.
5. The application is opposed by Angeline Kamiyu Mutisya the t Respondent vide her Replying Affidavit sworn on 29th August 2024. The Respondent avers that the application lacks merit and is an abuse of the court process and the same ought to be dismissed with costs as what is being sought by the Applicant is an equitable remedy that is only available to a party that is deserving of the same upon sufficient proof of the cause of delay. The Applicant herein has not attempted to demonstrate any cause of delay whatsoever required of him.
6. Directions were given for the application to be heard by way of written submissions. Both parties complied.
Analysis and determination
7. I have considered the application, the supporting affidavit, the replying affidavit and the rival submissions filed by the Parties’ counsel as well as the judicial decisions relied upon. In my view, the issues for determination are as follows:-
a. Whether the court should exercise its discretion to grant the applicant leave to file their appeal out of time;
b. Whether the applicant has met the prerequisite for grant of stay of execution pending appeal;
a. Whether the court should exercise its discretion to grant the applicant leave to file his appeal out of time;
8. Section 79G of the Civil Procedure Act states: -
“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 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.
9. It is clear from the wording of Section 79G of the Civil Procedure Act that before the court considers extension of time, the applicants must satisfy the court that that they have good and sufficient cause for filing the appeal out of time. This principle was enunciated in the case of Diplack Kenya Limited vs William Muthama Kitonyi [2018] eKLR that an applicant seeking enlargement of time to file an appeal or admission of an already filed appeal must show that he has a good cause for doing so.
10. The Supreme Court in the case of Nicholas Kiptoo Korir arap Salat vs IEBC and 7 Others [2014] eKLR enunciated the principles applicable in an application for leave to appeal out of time. The court stated inter alia that:-
“The underlying principles a court should consider in exercise of such discretion should include:-
a. Extension of time is not a right of any party. It is an equitable remedy that is only available to a deserving party at the discretion of the court;
b. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;
c. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case by case basis;
d. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;
e. Whether there will be any prejudice suffered by the respondent if the extension is granted;
f. Whether the application has been brought without undue delay.
11. Similarly in the case of Paul Musili Wambua vs Attorney General & 2 Others [2015] eKLR, the Court of Appeal in considering an application for extension of time and leave to file the Notice of Appeal out of time stated the following:-
“…….it is now settled by a long line of authorities by this court that the decision of whether or not to extend the time for filing an appeal the Judge exercises unfettered discretion. However, in the exercise of such discretion, the court must act upon reason(s) not based on whim or caprice. In general, the matters which a court takes into account in deciding whether or not to grant an extension of time are; the length of delay, the reason for the delay, the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the application is granted.”
12. Applying the above principles to the present case, the judgment herein was delivered on 28.03.2024 and the appeal ought to have been filed by 28.04.2024. The Applicant filed the current application together with the annexed Memorandum of Appeal on 11.07.2024. This is about three (3) months outside the time limited for filing an appeal. The Applicant has attributed the delay in filing her appeal to the need for communication between himself and his advocates on record in ascertaining the options available with regard to the judgement. The Applicant advised his advocates that he preferred an appeal owing to the high amount on quantum awarded to the Respondent. By the time the Applicant got back to his advocates in regard to his opinion to appeal
13. It is my position that nothing stopped the Applicant from allowing his Advocates file a Memorandum of Appeal within the stipulated 30 days and if need be, upon the issuing of further instructions, apply to make amendments if necessary.
14. I consider the three (3) months delay to be inordinate delay and the reasons for the delay not to have been satisfactorily explained to the court as required by the law. In my view, the Applicant has not given any plausible reasons for the delay in filing the appeal.
15. I have perused the intended Memorandum of Appeal and the judgment of the trial court and noted that the appeal faults the trial court on both liability and assessment of damages which they claim to be excessively high. As such, the appeal cannot be said to be without merit although at this juncture, I will restrain from delving into the merits of the appeal. It is my view that the Applicant ought to be given a chance to file his appeal out of time and prosecute it on merits.
b. Whether the applicant has met the prerequisite for grant of stay of execution pending appeal;
16. It is trite law that an appeal does not operate as an automatic stay of execution. The conditions which a party must establish in order for the court to order stay of execution are provided for under Order 42 Rule 6(2) Civil Procedure Rules. Order 42 Rule 6 of the Civil Procedure Rules stipulates:-
1.“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 orders set aside.
2. No order for stay of execution shall be made under sub rule 1 unless:-
a. The Court is satisfied that substantial loss may result to the 1st 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.
17. Thus, under Order 42 Rule 6(2) of the Civil Procedure Rules, an applicant should satisfy the court that:
1. Substantial loss may result to him/her unless the order is made;
2. That the application has been made without unreasonable delay; and
3. The applicant has given such security as the court orders for the due performance of such decree or order as may ultimately be binding on him.
18. Substantial loss was clearly explained in the case of James Wangalwa & Another vs Agnes Naliaka Cheseto [2012] eKLR:-
“No doubt in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process. 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”
19. The Applicant contend that he is apprehensive that following the judgment of Hon. Paul Matanda Wechuli delivered on 28th March, 2024 in Kithimani MCCC No. E194 of 2022, the Respondent is likely to proceed with execution of the said judgment against the Applicant. Such extreme and highly prejudicial consequences before the hearing and determination of the Appeal would subvert the ends of justice
20. It is trite law that execution is a lawful process and it is not a ground for granting stay of execution. The Applicants are required to show the manner in which execution will irreparably affect them or will alter the status quo to their detriment therefore rendering the appeal nugatory. The Applicant have failed to demonstrate substantial loss in my considered view.
21. On whether the application has been made without unreasonable delay. Judgment at the trial court was delivered on 28.03.2024 and the appeal ought to have been filed by 28.04.2024. The Applicants filed the current application together with the annexed Memorandum of Appeal on 11.07.2024. This is about three months outside the time limited for the application. This period is inordinate and inexcusable, however as already observed the Applicant deserves to be heard on his appeal.
22. On the issue of security for costs, the purpose of security was explained in the case of Arun C. Sharma vs Ashana Raikundalia t/a Raikundalia & Co. Advocates & 2 Others [2014] eKLR the court stated:-
“The purpose of the security needed under Order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the applicant. It is not to punish the judgment debtor…..Civil process is quite different because in civil process the judgment is like a debt hence the applicants become and are judgment debtors in relation to the respondent. That is why any security given under Order 42 Rule 6 of the Civil Procedure Rules acts as security for the due performance of such decree or order as may ultimately be binding on the applicants. I presume the security must be one which can serve that purpose.
23. Evidently, the issue of security is discretionary and it is upon the court to determine it and set its terms. The trial court entered judgment for Kshs.4,115,690/= for the Respondent as against the Applicant. The Applicant at paragraph 15 of the supporting affidavit is not opposed to giving a Bank Guarantee by his Insurer through Family Bank as security for the issuance of stay orders pending hearing and determination of the Appeal.
24. My perusal at the attached Bank Guarantee which by Family Bank shows that the same is for a period of only 12 months from 6th July, 2023 and that means that the same expired on 6d1 July, 2024 and there is no proof that has been renewed or that there is absolutely guarantee that the same will be renewed and yet there is no party that is aware how long the intended appeal will take to be heard and determined. Further, the said Bank Guarantee does not apply strictly to this matter and the Bank is not a party to these proceedings in order for it to be bound by whatever orders that this court gives. I find the Bank Guarantee not to be proper and adequate security.
25. It is imperative that the right of appeal must be balanced against an equally weighty rigid right of the plaintiff/claimant to enjoy the fruits of the judgment delivered in his/her favour. In the case of Samvir Trustee Limited vs Guardian Bank Limited [2007] eKLR the court stated:-
“The Court in considering whether to grant or refuse an application for stay is empowered to see whether there exist any special circumstances which can sway the discretion of the court in a particular manner. But the yardstick is for the court to balance or weigh the scales of justice by ensuring that an appeal is not rendered nugatory while at the same time ensuring that a successful party is not impeded from the enjoyment of the fruits of his judgment. It is a fundamental factor to bear in mind that a successful party is prima facie entitled to fruits of his judgment; hence the consequence of a judgment is that it has defined the rights of a party with definitive conclusion.”
26. Consequently, I do find that the Applicant is entitled to pursue his appeal on merit. I do allow the application dated 05.07.2024 on the following conditions:
a Leave is granted to the Applicant to file appeal out of time against the judgment delivered by Honourable Paul. Wechuli, Senior Resident Magistrate, in Kithimani CMCC NO. E194 OF 2022 dated and delivered on 28th March, 2024.
b The Applicant shall to file and serve his Memorandum of Appeal as per the attached draft within Seven (7) days hereof and thereafter to compile, file and serve the Record of Appeal within Forty-Five (45) days of this ruling in default, appropriate directions shall be given on matter.
c. Execution of the Judgment/decree in Kithimani CMCC NO. E194 of 2022 dated and delivered on 28th March, 2024 is hereby stayed pending the hearing and determination of the appeal on condition that the Applicant shall deposit half the decretal amount into court OR into a joint interest earning Bank account to be opened in a reputable Bank in the names of the Advocates’ Law firms on record within Forty-Five (45) days hereof in default the Respondents will be at liberty to execute.
d. The Applicant shall pay to the Respondents throw away costs of this application assessed at Kshs.15,000/=.
e. A Mention date to be fixed to confirm compliance with order 2, 3 and 4 above and for further directions.
f. This Miscellaneous file will be closed on the next mention date.
It is hereby so ordered.
RULING WRITTEN, DATED & SIGNED AT MACHAKOS THIS 9TH DECEMBER 2025
NOEL I. ADAGI
JUDGE
DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 9TH DECEMBER 2025
In the presence of:-