keca-2026-02044

substantially favored the Respondent, making ndings on agency, joint ventures, and ownership of motor vehicles. The Applicant was aggrieved and intended to appeal but failed to le a Notice of Appeal within the statutory 14 days, which expired on 12th December 2025. 4. I have identied the following issues for determination: a. Whether the Applicant is entitled to an extension of time to le a Notice of Appeal under Rule 4 of the Court of Appeal Rules, 2022. b. Whether the Applicant is entitled to an order of stay of execution under Rule 5(2)(b). 5. In respect to the rst issue, the principles guiding the Court in exercising its discretion under Rule 4 of the Court of Appeal Rules are well settled. In Nicholas Kiptoo Arap Korir Salat v Independent Electoral & Boundaries Commission & 7 Others [2014] eKLR, the Supreme Court held that extension of time is an equitable remedy. The Court must consider the length of delay, the reason for the delay, the arguability of the intended appeal, and potential prejudice to the Respondent. 6. On the length of delay, the Judgment was delivered on 28th November 2025. The application was led on 17th February 2026. The delay in ling the Notice of Appeal is approximately two (2) months. In my view, this period is not inordinately long. It does not demonstrate an intention to abandon the appeal or a complete disregard for the court process. 7. On the reason for the delay, the Applicant attributes it to the conduct of his former advocates. He avers that he only became aware of the judgment in mid-January 2026 and that his former advocate was initially unresponsive and later declined to pursue the matter. The Respondent has raised a valid concern regarding a contradiction in the Applicant’s adavit, pointing to a letter led by the said rm on 13th February 2026 requesting proceedings. 8. While I acknowledge the Respondent’s concerns regarding the explanation proered, and the fact that the Applicant’s counsel was present during the delivery of the Judgment, I am guided by the overriding objective of the Courts to administer justice without undue regard to technicalities. The mistake of counsel should not be visited upon a litigant to the extent of locking them out of the appellate process, particularly where the delay is short. 9. Regarding the arguability of the intended appeal, I have perused the draft Memorandum of Appeal. The appeal raises serious questions of law touching on the burden of proof, the evaluation of evidence regarding agency versus joint venture, and the propriety of orders transferring assets. These are not frivolous questions; they are triable issues that deserve consideration by this Court on merit. 10. As to prejudice, the Respondent will suer no prejudice that cannot be compensated by an award of costs. The Respondent has already been successful in the High Court; allowing the appeal to proceed will not undo that success but merely subjects it to appellate scrutiny. On the other hand, denying the Applicant an opportunity to be heard would cause him irreparable prejudice by shutting the doors of justice. 11. In the premises, I am satised that this is a t case for the exercise of discretion in favor of the Applicant. The interest of justice dictates that the substantive dispute between the parties be resolved on its merits rather than on a technicality of a two- month delay. Consequently, I allow the application under Rule 4 of the Court of Appeal Rules. 12. In regard to the second prayer seeking a stay of execution pending appeal under Rule 5(2)(b) of the Court of Appeal Rules,2022. The Applicant fears that the Respondent will execute the judgment, specically regarding the transfer of motor vehicles and access to bank accounts, which constitute his livelihood. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2044/eng@2026-05-22 2

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12. However, a prayer for stay of execution brought under section 5(2)(b) of the Court of Appeal Rules should be heard by a 3Judge bench. Sitting as a single Judge, I lack the jurisdiction to entertain the prayer. 13. For the foregoing reasons, I make the following orders: a. Time to le and serve a Notice of Appeal and Memorandum of Appeal against the Judgment of the High Court in HCCA/E118/2024 is hereby extended. b. The Draft Notice of Appeal and Memorandum of Appeal, both dated 11th February 2026 and annexed to the application herein, are deemed as duly led and served upon payment of the requisite court fees. c. Notice of Motion be placed before a Bench of Three (3) Judges for hearing and determination of the substantive application for Stay of Execution (Prayer 4). d. Costs of this application to abide by the outcome of the appeal. Order accordingly. DATED, SIGNED, AND DELIVERED AT KAKAMEGA THIS 22ND DAY OF May, 2026. R. NGETICH …………………………… JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2044/eng@2026-05-22 3

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