Kayser Investiment Limited v Bamburi Special Products Limited & 2 others (Environment and Land Case 534 of 2018) [2025] KEELC 6344 (KLR)

5. The principles regarding extension of time are well settled. The courts have had occasion to address the principles that ought to guide a court in extension of time. In the case of Edith Gichungu Koine Vs Stephen Njagi Thoithi [2014]eKLR Odek JJA stated: “ Nevertheless, it ought to be guided by consideration of factors stated in many previous decisions of this court including, but not limited to, the period of delay, the reasons for the delay, the degree of prejudice to Respondent if the application is granted, and whether the matter raises issues of public importance, amongst others.” 6. In the instant case the applicant states that it filed a notice of objection a few days after delivery of the Ruling but due to pressure of work did not file the reference in good time. Counsel contends that the applicant is likely to sufier prejudice if not allowed to file the reference. 7. I have considered the reasons given by the counsel for the Applicant to the efiect that the error was occasioned by counsel. While I would ordinarily ascribe apply to the school of thought that mistake by counsel should not be visited upon the client, it is the duty of the client to establish to the court that they did not contribute to the delay. This has not been proved in the instant case as the applicant did not swear an afidavit in support of the case. 8. On the question of stay of execution the Courts jurisdiction is derived from of Order 42 rule 6 (1) of the Civil Procedure Rules which provides; No order for stay of execution shall be made under subrule (1) unless— 14. (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. Substantial loss has been defined in several judicial pronouncements. In the case of Francis K. Chabari & another vs Mwarania Gaichura Kairubi [2022] eKL Justice C. K. YANO quoted Geofiery Muriungi & another v John Rukunga M’imonyoso as to define substantial loss as follows; “ the undisputed purpose of stay pending appeal is to prevent a successful appellant from becoming a holder of a barren result for reason that he cannot realize the fruits of his success in the appeal. I always refer to that eventuality as ‘’reducing the successful appellant into a pious explorer in the judicial process’’. The said state of afiairs is what is referred to as ‘’substantial loss’’ within the jurisprudence in the High Court, or ‘’rendering the appeal nugatory’’ within the juridical precincts of the Court of Appeal: and that is the loss which is sought to be prevented by an order for stay of execution pending appeal” 15. The Applicants have demonstrated that they have filed an appeal which is ongoing. Considering this and also that this application for stay of execution is not opposed the court makes the following orders; a. The application for extension of time is dismissed b. Stay of execution is granted subject to deposit of Kshs 471,935 in court within a period of 30 days. In default the orders for stay of execution is to lapse. RULING SIGNED DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 8TH DAY OF MAY 2025 https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6344/eng@2025-05-08 2

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JUDY OMANGE JUDGE In the presence of Court Assistant Catherine Mr. Ataka for Plaintifi/Applicant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6344/eng@2025-05-08 3

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