Gichia & 3 others v Blasto (Environment and Land Appeal E197 of 2024) [2025] KEELC 6420 (KLR)

lower court and could not therefore file an appeal over the same .Further he deposed that the applicants had not given any suficient reason for failing to file the appeal out of time .He deponed that the applicants were well aware of the order setting the judgment date as it had been given in their presence. 3. The Respondent further deposed that the applicant had not demonstrated how they would sufier irreparable loss as the lower court orders they were seeking to appeal against had not been adhered to as they were still collecting rent to the detriment of the respondent 4. The applicants filed a further afidavit in response to the replying afidavit. It was deposed that the application for review had been dealt with and a ruling delivered hence there was no application pending to prevent them from seeking leave to file an appeal. 5. None of the parties filed submissions. The court distils the following issues for determination;Whether extension of time to file an appeal out of time should be grantedWhether the court should grant stay of execution 6. The applicants state that they did not file the appeal within time as they were not aware of the Judgement which they only learned about later. Section 79G of the Civil Procedure Act provides that: “ 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 to the appellant 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 suficient cause for not filing the appeal in time.” 7. The discretion to extend time must be exercised within the confines of the law as were set out in the Court of Appeal case of Omar Shurie v Marian Rashe Yafar (Civil Application No. 107 of 2020) UR in which it was held: “ It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters which this Court takes into account in deciding whether to grant an extension of time are: first the length of the delay, secondly, the reason for the delay; thirdly (possibly) the chances of the appeal succeeding if the application is granted; and, fourthly, the degree of prejudice to the respondent if the application is granted.” 8. The primary reason for the delay in filing the appeal is that the applicants were not aware of the Judgement date as on the first date the matter was scheduled for delivery of Judgement on 23rd May 2024, the court did not sit. They have attached a screen shot from the Case Tracking System to confirm this. It is not disputed that the applicants were not served with the new Judgement date. The only issue the Respondent raises is that they had filed an application seeking to set aside the decree which the applicants respond had been concluded. 9. There was an issue of raised as to whether exercising the right to review would lock a party out from seeking extension of time to appeal. This question was addressed by Odunga J in HA vs LB ( 2022) eKLR Civil Appeal 188 of 2022 wherein the learned Judge stated, “ Whereas there is no express bar in the rules to a party who has attempted to review a decision from subsequently appealing against the same, it must be noted that the Rules are subject to the provisions of the Civil Procedure Act under which section 3A empowers the court https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6420/eng@2025-06-12 2

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to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.” 10. To my mind, this calls upon the court to consider in each case whether the application has been made to further the ends of justice or whether the application is an abuse of the process of the court. It therefore behoves the court to consider each case on its own merit. The court must therefore delve deeper to consider the merit of the application. In the instant case I find that given that the applicants were not aware of the new date of Judgement, they should be given a chance to ventilate their appeal. 11. On the question of stay, 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. 12. 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 suficient 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.” 13. Proof of substantial loss is therefore a critical component of an application for stay. The applicants have not established the extent of loss they will sufier if the decree is executed and neither have they proved that the Respondents would be unable to mitigate such loss. I therefore find that they have failed to demonstrate substantial loss and neither have they furnished the court with any security. I therefore find that the application for stay of execution is not merited. 14. Consequently, the court issues the following orders; a. Extension of time is granted within which to file the appeal. The memorandum of appeal should be filed within 14 days of uploading the Ruling on the platform b. The prayer for stay of execution is dismissed c. Costs shall abide the outcome of the appeal RULING SIGNED, DATED AND DELIVERED VIA MICROSOFT TEAMS ON 12TH OF JUNE, 2025 https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6420/eng@2025-06-12 3

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JUDY OMANGE JUDGE In the presence of : Court Assistant Catherine Mr. Kinyanjui for the Respondent Mr. Amanya for the Applicant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6420/eng@2025-06-12 4

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