1. The basis of the instant ruling is a Notice of Motion dated 1st September 2026 by the Applicant, Velma Gacheri. The application is opposed by the Respondent, Ramson Muchui Nkari, through a Replying Affidavit sworn on 4th September 2026.
2. From the prayers sought and the material placed before the Court, the application principally seeks leave to appeal out of time against the decision of the subordinate court delivered on 16th July 2026 in Tigania SPMCC No. E016 of 2024 and, consequentially, an order staying execution of the judgment and decree in that suit pending the hearing and determination of the intended appeal.
3. The application arises from a road traffic claim instituted by the Respondent against the Applicant following an accident which occurred on 15th November 2023 at a garage at Mulika Market. The Respondent's case was that he was injured when motor vehicle registration number KDL 753L, a Toyota Succeed, was suddenly reversed into the garage and knocked him down.
4. The suit was filed on 4th April 2024. The subordinate court subsequently entered judgment in favour of the Respondent on 30th January 2025. The Respondent was awarded Kshs.200,000/= as general damages, Kshs.30,900/= as special damages and Kshs.210,000/= for future medical expenses, making a total of Kshs.440,900/=, together with costs and interest. The Respondent's party-and-party bill of costs was thereafter taxed at Kshs.87,900/= on 19th June 2025.
5. On 13th April 2026, Lifeline Auctioneers issued a proclamation of attachment against the Applicant's property for a sum stated to be Kshs.604,169/=, inclusive of the decretal amount, interest and auctioneer's charges. On 22nd August 2026, a further proclamation was issued in respect of the Applicant's household goods and motor vehicle registration number KDL 753L.
6. The Respondent contends, and the record placed before the Court shows, that the Applicant entered appearance and filed a Statement of Defence through Kimondo Gachoka Advocates on 7th May 2024.
7. Following the judgment of 30th January 2025, the Applicant instructed Kairu & McCourt Advocates, who filed an application dated 14th February 2025 seeking, among other reliefs, the setting aside of the judgment. In that application, the Applicant's explanation for her failure to attend the hearing was that there had been a power outage affecting the virtual court proceedings. That application was heard and dismissed on 8th May 2025. The Applicant did not appeal against that decision.
8. On 14th April 2026, the Applicant, through M.D. Maranya & Co. Advocates, filed another application before the subordinate court seeking to set aside the same judgment.
9. In that subsequent application, she relied principally upon alleged non-service and asserted that she had not previously known of the proceedings. The subordinate court dismissed that application on 16th July 2026, holding, inter alia, that it was barred by the doctrine of res judicata , was incompetent under Order 9 Rule 9 of the Civil Procedure Rules and lacked merit.
10. The Applicant now approaches this Court principally on the footing that she has an arguable appeal against the decision of 16th July 2026 and that she should be permitted to challenge that decision notwithstanding the expiry of the prescribed period. There is also evidence that, on 24th August 2026, the Applicant instituted Tigania MCCC/E042/2026, Velma Gacheri v Directline Assurance Company , seeking relief against her insurer in relation to the same decree.
11. The Applicant's case is that she was never served with summons to enter appearance, the plaint or other processes in the original suit and only became aware of the proceedings when the auctioneer attended her premises on 13th April 2026. She contends that the intended appeal raises serious and arguable questions, particularly concerning the alleged want of service and the competence of the proceedings leading to judgment.
12. The Applicant further contends that she was unable to obtain the ruling delivered on 16th July 2026 timeously because it was not uploaded on the Judiciary's Case Tracking System and because of communication difficulties. She therefore urges the Court to find that the delay was satisfactorily explained.
13. On substantial loss, the Applicant contends that execution of the decree will result in the sale of her property and that the intended appeal would thereby be rendered nugatory. Particular reference is made to motor vehicle registration number KDL 753L, which she states is no longer owned by her and is presently registered in the name of a third party, Mwerotia Julius.
14. The Applicant also relies on the draft Memorandum of Appeal and submits that the intended appeal is arguable. She relies, among other authorities, on Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet , Caroline Muthoni Njuguna v Python Njeru Nyaga and James Kanyiita Nderitu v Marios Philotas Ghikas .
15. The Respondent opposes the application. His position is that the Applicant's assertion that she did not know of the proceedings cannot be reconciled with the court record showing that she entered appearance and filed a defence in May 2024 and subsequently filed an application seeking to set aside the judgment in February 2025.
16. The Respondent therefore submits that the present application is not simply one involving an innocent failure to learn of proceedings. In his view, it represents a further attempt to reopen matters which have already been considered by the subordinate court. He relies principally on Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others and contends that extension of time is a discretionary and equitable remedy.
17. The Respondent further submits that the Applicant's subsequent suit against Directline Assurance Company demonstrates that she has herself treated the judgment as an existing and enforceable judgment while simultaneously seeking, in this Court, to challenge its validity. He contends that such conduct amounts to approbation and reprobation and constitutes an abuse of the court process.
18. The Respondent consequently urges the Court to find that no sufficient basis has been laid for extension of time or stay of execution.
Issues for Determination
19. Having considered the application, the affidavits, the submissions and the record before the Court, I consider the following issues to arise for determination:
1. Whether the Applicant has established sufficient cause for extension of time to lodge the intended appeal;
2. Whether, if leave to appeal out of time is granted, the Applicant has satisfied the requirements for stay of execution under Order 42 Rule 6 of the Civil Procedure Rules; and
3. What orders should issue as to the application and costs.
Whether the Applicant has established sufficient cause for extension of time
20. The jurisdiction to enlarge time is discretionary. Section 79G of the Civil Procedure Act requires an appeal from a subordinate court to the High Court to be filed within thirty days from the date of the decree or order appealed against, subject to the proviso permitting admission of an appeal out of time where the appellant satisfies the Court that he or she had good and sufficient cause for not filing the appeal within time.
21. The discretion is not exercised as a matter of course. It is a judicial discretion which must be exercised upon consideration of the circumstances of each case, including the length and explanation of the delay, the chances of the intended appeal succeeding, the degree of prejudice likely to be occasioned to the respondent, and the overall interests of justice.
22. The Supreme Court in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others identified the principles applicable to extension of time. Of particular relevance is that extension of time is an equitable remedy, that a party seeking it bears the burden of laying a satisfactory basis for the exercise of the Court's discretion, and that the discretion should be exercised judiciously rather than mechanically.
23. Similarly, in Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet , the Court of Appeal stated:
"a plausible and satisfactory explanation for delay is the key that unlocks the court's flow of discretionary favour."
24. The first matter requiring clarification is the period of delay. The Applicant's application is dated 1st September 2026 and is principally directed at the ruling of 16th July 2026. If that is the decision intended to be challenged, the delay in filing an appeal is approximately forty-seven days. It would therefore be inaccurate to characterise the delay in relation to that decision as one extending from the date of the original judgment of 30th January 2025.
25. The position would, however, be materially different if the intended appeal is directed against the original judgment of 30th January 2025. In that event, the delay is more than nineteen months. The Court must therefore consider the application based on the decision that the Applicant has expressly or constructively identified as the subject of the intended appeal, namely the ruling of 16th July 2026, while recognising that the grounds proposed in the draft Memorandum of Appeal substantially challenge the underlying judgment and the subordinate court's refusal to set it aside.
26. The Applicant explains the delay after 16th July 2026 principally by stating that she did not obtain the ruling timeously because it was not uploaded on the Case Tracking System and because of communication difficulties. A delay occasioned by inability to access a ruling can, in an appropriate case, constitute a satisfactory explanation. The Court of Appeal recognised this possibility in Caroline Muthoni Njuguna v Python Njeru Nyaga , where the circumstances surrounding access to a ruling and procedural difficulties were considered in determining whether delay was excusable.
27. The difficulty for the Applicant in the present case, however, is that the delay cannot be considered in isolation from the procedural history of the matter. By the time the ruling of 16th July 2026 was delivered, the Applicant was already fully aware of the underlying litigation. She had entered appearance and filed a defence; she had subsequently applied to set aside the judgment; and that first application had been dismissed on 8th May 2025.
28. The Applicant's assertion that she had no knowledge of the original suit until April 2026 is consequently inconsistent with the documentary history placed before the Court. The contradiction is not a minor discrepancy. It goes to the foundation of the explanation advanced for her conduct.
29. The record also shows that the Applicant had already sought substantially similar relief from the subordinate court in February 2025. The explanation then advanced was not non-service or lack of knowledge of the suit, but an alleged disruption of virtual proceedings. That application was dismissed on 8th May 2025 and was not appealed.
30. The Applicant subsequently filed another application seeking to set aside the same judgment. The subordinate court dismissed that application on 16th July 2026 on the grounds already stated. These matters are relevant because a party seeking discretionary extension of time must place before the Court a complete and coherent explanation for the procedural history that has led to the application.
31. On the material before the Court, the Applicant has not adequately explained why, having participated in the proceedings through counsel, having filed a defence, having previously sought to set aside the judgment, and having failed to appeal the dismissal of that first application, the subsequent challenge based on alleged non-service was only pursued in April 2026.
32. The Court therefore finds that, although the period between 16th July 2026 and 1st September 2026 is not, standing alone, exceptionally long, the explanation offered for the Applicant's conduct as a whole is not sufficiently satisfactory to warrant the exercise of the Court's discretion in her favour.
Whether the Intended Appeal is Arguable
33. The Court must also consider the proposed grounds of appeal, not with a view to determining the appeal itself, but to ascertain whether the intended appeal raises a bona fide question deserving appellate consideration.
34. The Applicant principally relies on the contention that she was not served with summons and that the judgment entered against her was consequently irregular. Reliance is placed on James Kanyiita Nderitu v Marios Philotas Ghikas & Another , where the Court of Appeal distinguished between a regular judgment entered in the absence of a defendant and an irregular judgment entered where service of summons was not proved.
35. The principle is not in dispute. Where a defendant is not served with summons and judgment is entered in his or her absence, the judgment is ordinarily irregular and the court has an obligation to set it aside ex debito justitiae . Conversely, where summons were duly served and the defendant failed to attend or participate in the hearing, the judgment is regular and the discretion to set it aside is exercised upon established principles.
36. The difficulty for the Applicant is evidential. The material presently before the Court contains evidence that she entered appearance and filed a defence in the suit on 7th May 2024. There is also evidence that she subsequently invoked the jurisdiction of the same subordinate court to set aside the judgment and, in the earlier application, advanced a different explanation for her non-attendance.
37. Those matters do not, without more, conclusively determine every question relating to service of summons. The filing of a memorandum of appearance and defence does not retrospectively establish every aspect of service. Nevertheless, they substantially undermine the factual premise upon which the Applicant now seeks to invoke the doctrine of an irregular judgment.
38. More importantly, the issue of setting aside the judgment has already been litigated before the subordinate court. The first application was dismissed on 8th May 2025. The Applicant did not appeal that determination. Instead, she filed a further application raising a different factual basis for setting aside the same judgment, which was dismissed on 16th July 2026.
39. The subordinate court's decision of 16th July 2026 raises, among others, the question whether the second application was barred by res judicata and whether it was procedurally competent under Order 9 Rule 9 of the Civil Procedure Rules. Those are not matters that can simply be assumed away by recasting the dispute as one concerning non-service.
40. The draft Memorandum of Appeal may therefore raise questions capable of being formulated as grounds of appeal. However, arguability does not mean that an appeal must ultimately succeed. Nor does the existence of a potentially arguable point, standing alone, entitle a party to extension of time.
41. The Court must consider the arguability of the proposed appeal together with the Applicant's conduct, the explanation for delay and the interests of justice. On that composite assessment, the Court is not persuaded that the Applicant has laid a sufficient basis for the exercise of the discretionary jurisdiction under Section 79G.
42. The Respondent has drawn attention to the suit filed by the Applicant against Directline Assurance Company on 24th August 2026. The existence of that suit is not disputed.
43. The Respondent characterises the institution of that proceeding as an admission by the Applicant that the judgment and decree are valid, while her present application is said to proceed on the opposite premise.
44. The Court does not consider it necessary, for purposes of determining this application, to make a definitive finding on the Applicant's subjective intention in instituting the declaratory suit. The legal effect of that proceeding, and the precise reliefs sought therein, are matters for determination by the court seized of that suit.
45. Nevertheless, the proceeding is relevant to the question of the Applicant's overall conduct. It demonstrates that, contemporaneously with the present application, the Applicant has invoked a statutory mechanism under section 10 of the Insurance (Motor Vehicle Third Party Risks) Act in relation to the same decree.
46. That circumstance does not, by itself, extinguish the Applicant's right of appeal or constitute an automatic bar to the present application. A litigant may, in appropriate circumstances, pursue alternative remedies where the law permits. However, where a party seeks an equitable and discretionary remedy, the Court is entitled to consider whether the manner in which different proceedings have been pursued is consistent and bona fide.
47. The Court therefore takes the existence of the parallel proceedings into account, but does not base its decision solely upon them.
Whether the Applicant is entitled to Stay of Execution
48. The Applicant also seeks stay of execution pending the hearing and determination of the intended appeal.The applicable principles are contained in Order 42 Rule 6(2) of the Civil Procedure Rules, which provides:
"No order for stay of execution shall be made under subrule (1) unless—
(a) the court is satisfied that substantial loss may result to the 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."
49. The three principal requirements are therefore that the application be made without unreasonable delay, that the Applicant demonstrate substantial loss, and that security for the due performance of the decree be provided.
50. The importance of substantial loss was explained by the Court of Appeal in Kenya Shell Ltd v Benjamin Karuga Kibiru & Another [1986] KLR 410 , where Gachuhi JA stated:
" Substantial loss in its various forms, is the cornerstone of both jurisdictions for granting a stay. That is what has to be prevented. Therefore, without this evidence it is difficult to see why the respondents should be kept out of their money."
51. Execution of a decree does not constitute substantial loss. In James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR , the Court of Appeal observed:
"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 not the kind of substantial loss that would render the appeal nugatory. However, a party 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."
52. The Applicant contends that her household property is at risk of sale and that motor vehicle KDL 753L is no longer hers but is registered in the name of a third party. The existence of a proclamation demonstrates that execution is not merely speculative. However, the fact of execution does not, in itself, satisfy the requirement of substantial loss. The Applicant was required to demonstrate the particular prejudice that would arise and explain why the ordinary consequences of execution could not adequately be addressed in the event of a successful appeal.
53. The Applicant has also not demonstrated, on the material before the Court, that the Respondent would be unable to refund the decretal amount should the intended appeal ultimately succeed.
54. In National Industrial Credit Bank Ltd v Aquinas Francis Wasike & Another [2006] eKLR , t he Court of Appeal stated:
" This Court has said before, and it would bear repeating that while the legal duty is on an applicant to prove the allegation that an appeal would be rendered nugatory because a respondent would be unable to pay back the decretal sum, it is unreasonable to expect such an applicant to know in detail the resources owned by a respondent or the lack of them. Once an applicant expresses a reasonable fear that a respondent would be unable to pay back the decretal sum, the evidential burden shifts to the respondent to show what resources he has since that is a matter which is peculiarly within his knowledge."
55. The Applicant has not placed before the Court sufficient material to raise such a reasonable evidential concern in the first place. The Respondent therefore cannot be said to bear an evidential burden which has not been triggered on the material presented.
56. The requirement of security must also be considered. Security is not a punitive condition imposed upon a litigant for exercising a right of appeal. It is intended to protect the decree holder against the risk of being deprived of the fruits of a judgment while at the same time preserving the appellant's right to pursue an appeal.
57. In Focin Motorcycle Co. Ltd v Ann Wambui Wangui & Another [2018] eKLR , the Court stated:
"Where the applicant proposes to provide security, the Court has to balance the interests of the applicant who is exercising his right of appeal and the respondent who has a decree in his favour. The security must therefore be sufficient to safeguard the decree holder's interests."
58. Likewise, in Absalom Dova v Tarbo Transporters [2013] eKLR , the Court observed:
"The security must ensure that the decree holder is not prejudiced by being deprived of the fruits of his judgment in the event the appeal does not succeed."
59. In the present application, no adequate proposal for security has been made. The Applicant has not offered to deposit the decretal amount, or any other specific form of security, as a condition for stay.
60. It follows that, even if the Court were to consider the application for stay independently of the question of extension of time, the Applicant has not satisfactorily demonstrated all the requirements under Order 42 Rule 6(2).
61. In the circumstances, the application for leave to appeal out of time and the consequential application for stay of execution cannot succeed.
62. Accordingly, the court makes the following orders,
i. The Notice of Motion dated 1st September 2026 is hereby dismissed.
ii. The interim order of stay of execution issued in this matter is hereby vacated.
iii. The costs of the application shall be borne by the Applicant.
63. Orders accordingly.
D ATED, SIGNED AND DELIVERED AT MERU THIS 8TH DAY OF SEPTEMBER 2026 .
2. From the prayers sought and the material placed before the Court, the application principally seeks leave to appeal out of time against the decision of the subordinate court delivered on 16th July 2026 in Tigania SPMCC No. E016 of 2024 and, consequentially, an order staying execution of the judgment and decree in that suit pending the hearing and determination of the intended appeal.
3. The application arises from a road traffic claim instituted by the Respondent against the Applicant following an accident which occurred on 15th November 2023 at a garage at Mulika Market. The Respondent's case was that he was injured when motor vehicle registration number KDL 753L, a Toyota Succeed, was suddenly reversed into the garage and knocked him down.
4. The suit was filed on 4th April 2024. The subordinate court subsequently entered judgment in favour of the Respondent on 30th January 2025. The Respondent was awarded Kshs.200,000/= as general damages, Kshs.30,900/= as special damages and Kshs.210,000/= for future medical expenses, making a total of Kshs.440,900/=, together with costs and interest. The Respondent's party-and-party bill of costs was thereafter taxed at Kshs.87,900/= on 19th June 2025.
5. On 13th April 2026, Lifeline Auctioneers issued a proclamation of attachment against the Applicant's property for a sum stated to be Kshs.604,169/=, inclusive of the decretal amount, interest and auctioneer's charges. On 22nd August 2026, a further proclamation was issued in respect of the Applicant's household goods and motor vehicle registration number KDL 753L.
6. The Respondent contends, and the record placed before the Court shows, that the Applicant entered appearance and filed a Statement of Defence through Kimondo Gachoka Advocates on 7th May 2024.
7. Following the judgment of 30th January 2025, the Applicant instructed Kairu & McCourt Advocates, who filed an application dated 14th February 2025 seeking, among other reliefs, the setting aside of the judgment. In that application, the Applicant's explanation for her failure to attend the hearing was that there had been a power outage affecting the virtual court proceedings. That application was heard and dismissed on 8th May 2025. The Applicant did not appeal against that decision.
8. On 14th April 2026, the Applicant, through M.D. Maranya & Co. Advocates, filed another application before the subordinate court seeking to set aside the same judgment.
9. In that subsequent application, she relied principally upon alleged non-service and asserted that she had not previously known of the proceedings. The subordinate court dismissed that application on 16th July 2026, holding, inter alia, that it was barred by the doctrine of res judicata , was incompetent under Order 9 Rule 9 of the Civil Procedure Rules and lacked merit.
10. The Applicant now approaches this Court principally on the footing that she has an arguable appeal against the decision of 16th July 2026 and that she should be permitted to challenge that decision notwithstanding the expiry of the prescribed period. There is also evidence that, on 24th August 2026, the Applicant instituted Tigania MCCC/E042/2026, Velma Gacheri v Directline Assurance Company , seeking relief against her insurer in relation to the same decree.
11. The Applicant's case is that she was never served with summons to enter appearance, the plaint or other processes in the original suit and only became aware of the proceedings when the auctioneer attended her premises on 13th April 2026. She contends that the intended appeal raises serious and arguable questions, particularly concerning the alleged want of service and the competence of the proceedings leading to judgment.
12. The Applicant further contends that she was unable to obtain the ruling delivered on 16th July 2026 timeously because it was not uploaded on the Judiciary's Case Tracking System and because of communication difficulties. She therefore urges the Court to find that the delay was satisfactorily explained.
13. On substantial loss, the Applicant contends that execution of the decree will result in the sale of her property and that the intended appeal would thereby be rendered nugatory. Particular reference is made to motor vehicle registration number KDL 753L, which she states is no longer owned by her and is presently registered in the name of a third party, Mwerotia Julius.
14. The Applicant also relies on the draft Memorandum of Appeal and submits that the intended appeal is arguable. She relies, among other authorities, on Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet , Caroline Muthoni Njuguna v Python Njeru Nyaga and James Kanyiita Nderitu v Marios Philotas Ghikas .
15. The Respondent opposes the application. His position is that the Applicant's assertion that she did not know of the proceedings cannot be reconciled with the court record showing that she entered appearance and filed a defence in May 2024 and subsequently filed an application seeking to set aside the judgment in February 2025.
16. The Respondent therefore submits that the present application is not simply one involving an innocent failure to learn of proceedings. In his view, it represents a further attempt to reopen matters which have already been considered by the subordinate court. He relies principally on Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others and contends that extension of time is a discretionary and equitable remedy.
17. The Respondent further submits that the Applicant's subsequent suit against Directline Assurance Company demonstrates that she has herself treated the judgment as an existing and enforceable judgment while simultaneously seeking, in this Court, to challenge its validity. He contends that such conduct amounts to approbation and reprobation and constitutes an abuse of the court process.
18. The Respondent consequently urges the Court to find that no sufficient basis has been laid for extension of time or stay of execution.
Issues for Determination
19. Having considered the application, the affidavits, the submissions and the record before the Court, I consider the following issues to arise for determination:
1. Whether the Applicant has established sufficient cause for extension of time to lodge the intended appeal;
2. Whether, if leave to appeal out of time is granted, the Applicant has satisfied the requirements for stay of execution under Order 42 Rule 6 of the Civil Procedure Rules; and
3. What orders should issue as to the application and costs.
Whether the Applicant has established sufficient cause for extension of time
20. The jurisdiction to enlarge time is discretionary. Section 79G of the Civil Procedure Act requires an appeal from a subordinate court to the High Court to be filed within thirty days from the date of the decree or order appealed against, subject to the proviso permitting admission of an appeal out of time where the appellant satisfies the Court that he or she had good and sufficient cause for not filing the appeal within time.
21. The discretion is not exercised as a matter of course. It is a judicial discretion which must be exercised upon consideration of the circumstances of each case, including the length and explanation of the delay, the chances of the intended appeal succeeding, the degree of prejudice likely to be occasioned to the respondent, and the overall interests of justice.
22. The Supreme Court in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others identified the principles applicable to extension of time. Of particular relevance is that extension of time is an equitable remedy, that a party seeking it bears the burden of laying a satisfactory basis for the exercise of the Court's discretion, and that the discretion should be exercised judiciously rather than mechanically.
23. Similarly, in Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet , the Court of Appeal stated:
"a plausible and satisfactory explanation for delay is the key that unlocks the court's flow of discretionary favour."
24. The first matter requiring clarification is the period of delay. The Applicant's application is dated 1st September 2026 and is principally directed at the ruling of 16th July 2026. If that is the decision intended to be challenged, the delay in filing an appeal is approximately forty-seven days. It would therefore be inaccurate to characterise the delay in relation to that decision as one extending from the date of the original judgment of 30th January 2025.
25. The position would, however, be materially different if the intended appeal is directed against the original judgment of 30th January 2025. In that event, the delay is more than nineteen months. The Court must therefore consider the application based on the decision that the Applicant has expressly or constructively identified as the subject of the intended appeal, namely the ruling of 16th July 2026, while recognising that the grounds proposed in the draft Memorandum of Appeal substantially challenge the underlying judgment and the subordinate court's refusal to set it aside.
26. The Applicant explains the delay after 16th July 2026 principally by stating that she did not obtain the ruling timeously because it was not uploaded on the Case Tracking System and because of communication difficulties. A delay occasioned by inability to access a ruling can, in an appropriate case, constitute a satisfactory explanation. The Court of Appeal recognised this possibility in Caroline Muthoni Njuguna v Python Njeru Nyaga , where the circumstances surrounding access to a ruling and procedural difficulties were considered in determining whether delay was excusable.
27. The difficulty for the Applicant in the present case, however, is that the delay cannot be considered in isolation from the procedural history of the matter. By the time the ruling of 16th July 2026 was delivered, the Applicant was already fully aware of the underlying litigation. She had entered appearance and filed a defence; she had subsequently applied to set aside the judgment; and that first application had been dismissed on 8th May 2025.
28. The Applicant's assertion that she had no knowledge of the original suit until April 2026 is consequently inconsistent with the documentary history placed before the Court. The contradiction is not a minor discrepancy. It goes to the foundation of the explanation advanced for her conduct.
29. The record also shows that the Applicant had already sought substantially similar relief from the subordinate court in February 2025. The explanation then advanced was not non-service or lack of knowledge of the suit, but an alleged disruption of virtual proceedings. That application was dismissed on 8th May 2025 and was not appealed.
30. The Applicant subsequently filed another application seeking to set aside the same judgment. The subordinate court dismissed that application on 16th July 2026 on the grounds already stated. These matters are relevant because a party seeking discretionary extension of time must place before the Court a complete and coherent explanation for the procedural history that has led to the application.
31. On the material before the Court, the Applicant has not adequately explained why, having participated in the proceedings through counsel, having filed a defence, having previously sought to set aside the judgment, and having failed to appeal the dismissal of that first application, the subsequent challenge based on alleged non-service was only pursued in April 2026.
32. The Court therefore finds that, although the period between 16th July 2026 and 1st September 2026 is not, standing alone, exceptionally long, the explanation offered for the Applicant's conduct as a whole is not sufficiently satisfactory to warrant the exercise of the Court's discretion in her favour.
Whether the Intended Appeal is Arguable
33. The Court must also consider the proposed grounds of appeal, not with a view to determining the appeal itself, but to ascertain whether the intended appeal raises a bona fide question deserving appellate consideration.
34. The Applicant principally relies on the contention that she was not served with summons and that the judgment entered against her was consequently irregular. Reliance is placed on James Kanyiita Nderitu v Marios Philotas Ghikas & Another , where the Court of Appeal distinguished between a regular judgment entered in the absence of a defendant and an irregular judgment entered where service of summons was not proved.
35. The principle is not in dispute. Where a defendant is not served with summons and judgment is entered in his or her absence, the judgment is ordinarily irregular and the court has an obligation to set it aside ex debito justitiae . Conversely, where summons were duly served and the defendant failed to attend or participate in the hearing, the judgment is regular and the discretion to set it aside is exercised upon established principles.
36. The difficulty for the Applicant is evidential. The material presently before the Court contains evidence that she entered appearance and filed a defence in the suit on 7th May 2024. There is also evidence that she subsequently invoked the jurisdiction of the same subordinate court to set aside the judgment and, in the earlier application, advanced a different explanation for her non-attendance.
37. Those matters do not, without more, conclusively determine every question relating to service of summons. The filing of a memorandum of appearance and defence does not retrospectively establish every aspect of service. Nevertheless, they substantially undermine the factual premise upon which the Applicant now seeks to invoke the doctrine of an irregular judgment.
38. More importantly, the issue of setting aside the judgment has already been litigated before the subordinate court. The first application was dismissed on 8th May 2025. The Applicant did not appeal that determination. Instead, she filed a further application raising a different factual basis for setting aside the same judgment, which was dismissed on 16th July 2026.
39. The subordinate court's decision of 16th July 2026 raises, among others, the question whether the second application was barred by res judicata and whether it was procedurally competent under Order 9 Rule 9 of the Civil Procedure Rules. Those are not matters that can simply be assumed away by recasting the dispute as one concerning non-service.
40. The draft Memorandum of Appeal may therefore raise questions capable of being formulated as grounds of appeal. However, arguability does not mean that an appeal must ultimately succeed. Nor does the existence of a potentially arguable point, standing alone, entitle a party to extension of time.
41. The Court must consider the arguability of the proposed appeal together with the Applicant's conduct, the explanation for delay and the interests of justice. On that composite assessment, the Court is not persuaded that the Applicant has laid a sufficient basis for the exercise of the discretionary jurisdiction under Section 79G.
42. The Respondent has drawn attention to the suit filed by the Applicant against Directline Assurance Company on 24th August 2026. The existence of that suit is not disputed.
43. The Respondent characterises the institution of that proceeding as an admission by the Applicant that the judgment and decree are valid, while her present application is said to proceed on the opposite premise.
44. The Court does not consider it necessary, for purposes of determining this application, to make a definitive finding on the Applicant's subjective intention in instituting the declaratory suit. The legal effect of that proceeding, and the precise reliefs sought therein, are matters for determination by the court seized of that suit.
45. Nevertheless, the proceeding is relevant to the question of the Applicant's overall conduct. It demonstrates that, contemporaneously with the present application, the Applicant has invoked a statutory mechanism under section 10 of the Insurance (Motor Vehicle Third Party Risks) Act in relation to the same decree.
46. That circumstance does not, by itself, extinguish the Applicant's right of appeal or constitute an automatic bar to the present application. A litigant may, in appropriate circumstances, pursue alternative remedies where the law permits. However, where a party seeks an equitable and discretionary remedy, the Court is entitled to consider whether the manner in which different proceedings have been pursued is consistent and bona fide.
47. The Court therefore takes the existence of the parallel proceedings into account, but does not base its decision solely upon them.
Whether the Applicant is entitled to Stay of Execution
48. The Applicant also seeks stay of execution pending the hearing and determination of the intended appeal.The applicable principles are contained in Order 42 Rule 6(2) of the Civil Procedure Rules, which provides:
"No order for stay of execution shall be made under subrule (1) unless—
(a) the court is satisfied that substantial loss may result to the 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."
49. The three principal requirements are therefore that the application be made without unreasonable delay, that the Applicant demonstrate substantial loss, and that security for the due performance of the decree be provided.
50. The importance of substantial loss was explained by the Court of Appeal in Kenya Shell Ltd v Benjamin Karuga Kibiru & Another [1986] KLR 410 , where Gachuhi JA stated:
" Substantial loss in its various forms, is the cornerstone of both jurisdictions for granting a stay. That is what has to be prevented. Therefore, without this evidence it is difficult to see why the respondents should be kept out of their money."
51. Execution of a decree does not constitute substantial loss. In James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR , the Court of Appeal observed:
"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 not the kind of substantial loss that would render the appeal nugatory. However, a party 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."
52. The Applicant contends that her household property is at risk of sale and that motor vehicle KDL 753L is no longer hers but is registered in the name of a third party. The existence of a proclamation demonstrates that execution is not merely speculative. However, the fact of execution does not, in itself, satisfy the requirement of substantial loss. The Applicant was required to demonstrate the particular prejudice that would arise and explain why the ordinary consequences of execution could not adequately be addressed in the event of a successful appeal.
53. The Applicant has also not demonstrated, on the material before the Court, that the Respondent would be unable to refund the decretal amount should the intended appeal ultimately succeed.
54. In National Industrial Credit Bank Ltd v Aquinas Francis Wasike & Another [2006] eKLR , t he Court of Appeal stated:
" This Court has said before, and it would bear repeating that while the legal duty is on an applicant to prove the allegation that an appeal would be rendered nugatory because a respondent would be unable to pay back the decretal sum, it is unreasonable to expect such an applicant to know in detail the resources owned by a respondent or the lack of them. Once an applicant expresses a reasonable fear that a respondent would be unable to pay back the decretal sum, the evidential burden shifts to the respondent to show what resources he has since that is a matter which is peculiarly within his knowledge."
55. The Applicant has not placed before the Court sufficient material to raise such a reasonable evidential concern in the first place. The Respondent therefore cannot be said to bear an evidential burden which has not been triggered on the material presented.
56. The requirement of security must also be considered. Security is not a punitive condition imposed upon a litigant for exercising a right of appeal. It is intended to protect the decree holder against the risk of being deprived of the fruits of a judgment while at the same time preserving the appellant's right to pursue an appeal.
57. In Focin Motorcycle Co. Ltd v Ann Wambui Wangui & Another [2018] eKLR , the Court stated:
"Where the applicant proposes to provide security, the Court has to balance the interests of the applicant who is exercising his right of appeal and the respondent who has a decree in his favour. The security must therefore be sufficient to safeguard the decree holder's interests."
58. Likewise, in Absalom Dova v Tarbo Transporters [2013] eKLR , the Court observed:
"The security must ensure that the decree holder is not prejudiced by being deprived of the fruits of his judgment in the event the appeal does not succeed."
59. In the present application, no adequate proposal for security has been made. The Applicant has not offered to deposit the decretal amount, or any other specific form of security, as a condition for stay.
60. It follows that, even if the Court were to consider the application for stay independently of the question of extension of time, the Applicant has not satisfactorily demonstrated all the requirements under Order 42 Rule 6(2).
61. In the circumstances, the application for leave to appeal out of time and the consequential application for stay of execution cannot succeed.
62. Accordingly, the court makes the following orders,
i. The Notice of Motion dated 1st September 2026 is hereby dismissed.
ii. The interim order of stay of execution issued in this matter is hereby vacated.
iii. The costs of the application shall be borne by the Applicant.
63. Orders accordingly.
D ATED, SIGNED AND DELIVERED AT MERU THIS 8TH DAY OF SEPTEMBER 2026 .