Chemwetich v Kipruto & 2 others

iv. Copy of draft memorandum. 4. The applicant depones that the delay to le the intended appeal and seek for stay was occasioned by late service of decree of the court. 5. The applicant is opposed by the respondents on the grounds that it is inept, frivolous, an afterthought and an abuse of the court process; that no sucient reason and/or cause has been tendered by the applicant why the appeal was not lodged within the prescribed period; that the applicant had the opportunity of appealing with the prescribed time; that the applicant did not make any eort after the delivery of the judgment to obtain the judgment, decree and/or request for certied copies of proceedings and that there has been inordinate and inexcusable delay in bringing the application for extension of time and stay of execution (three (3) months). Further that the application does not meet the threshold for granting stay of execution pending appeal under Order 42 Rule 6 as there is no appeal on which stay can hinge; that the application for stay pending appeal is premature as stay of execution cannot be granted in anticipation of an intended appeal and that the applicant has not demonstrated that the intended appeal is meritorious to warrant exercise of the court’s discretion in his favour. 6. The application was argued orally on 19/9/2025. Counsels for the parties basically reiterated the grounds taken up in support of opposition for the application. Analysis and Determination 7. This court has discretionary power to grant leave to le an appeal out of time. That power is granted by Section 79G of the Civil Procedure Act. In that regard see the case of Edward Kamau & Another v. Hannah Mukui Gichuki & Another where it was stated:“ On whether this court should grant extension of time for ling an appeal, the applicable law is section 79G of the Civil Procedure Act… Under the proviso to the said section 79G of the Civil Procedure Act, an appeal may be admitted out of time if the appellant satises the court that he had a good and sucient cause for not ling the appeal in time.” The court further stated:“ The Supreme Court in the case of Nicholas Kiptoo Arap Korir Salat v. IEBC & 7 others, SC Appl 16/2014 laid down the following as the underlying principles that a court should consider in exercise of discretion to extent time: i. Extension of time is not a right of a party. It is equitable remedy that is available to a deserving party at the discretion of the court; ii. The party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court; iii. As to whether the court should exercise the discretion to extend time, is a consideration to be made on a case by case basis; iv. Whether there is a reason for the delay; the delay should be explained to the satisfaction of the court; v. Whether there will be any prejudice to be suered by the respondents if the extension is granted; https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18455/eng@2025-12-16 2

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vi. The application should have been brought without undue delay; and vii. In certain cases, like election petitions, public interest should be a consideration for extending time.” 8. In the instant application, I have read and considered the explanation oered by the applicant for his failure to le the intended appeal within the stipulated time, being delay in obtaining the decree. I note that the applicant has not demonstrated that he had any challenges in obtaining the decree and the other documents he needed to le the appeal. For instance, there is no indication as to whether the applicant applied to the lower court to be supplied with the judgment, decree and certied copies of the court’s proceedings. In absence of evidence of any eort made by the applicant to obtain the documents required to le the intended appeal, I agree with the respondents that the decision by the applicant to appeal against the judgment of the lower court was but an afterthought, prompted by the respondents’ execution of the decree issued in their favour. 9. Although the delay of two months or thereabout is not so inordinate that it would, inappropriate circumstances, preclude exercise of this court’s discretionary power to extent time to le appeal, that power can only be exercised in favour of the applicant if he demonstrates that he was prevented from ling the intended appeal by factors beyond his control and not otherwise. 10. Having determined that no reasonable explanation has been oered by the applicant for the delay in ling his intended appeal, I decline to exercise the discretionary power vested in this court in favour of the applicant. 11. As the application for stay pending appeal is hinged on the intended appeal, the refusal of the application for extension of time to lodge appeal has the eect of rendering the application for stay pending appeal otiose. 12. The upshot of the foregoing is that the application dated 31st July 2025 has no merit. Consequently, I dismiss it with costs to the respondents. 13. Orders accordingly. DATED, SIGNED AND DELIVERED THIS 16TH DAY OF DECEMBER, 2025. L. N. WAITHAKA JUDGE Ruling delivered virtually in the presence of;Ms. Cherop h/b for Mr. Kiplagat for the applicant Mr. Chebii for the respondent Court Asst.: Ian/Christine . https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18455/eng@2025-12-16 3

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