Mwakaba & another v Kimbio

appreciated that the time for compliance with the courts order dated 23.7.2026 lapsed on the 13.8.2026 despite his struggle to secure the decretal sum in the evening of 13.8.2026 hence his inability to comply with opening of an interest earning account in the joint names of Advocates for the Applicant and Respondent on time. 5.The Applicant urged that on the 14.8.2026 when the joint account bank opening forms were submitted to the Respondent’s Advocate for execution, time had expired. He submitted that the delay in compliance with conditional stay orders was inadvertent having been occasioned by securing of funds on the 13.8.2026 and honest belief that the last day of compliance was 14.8.2026, not 13.8.2026. The Applicant urged the court to exercise its discretion in their favor as he has the funds which he is willing to deposit on terms as shall be directed by the court pending hearing and determination of the application for stay of execution pending determination of the appeal. 6. The Applicant annexed correspondences in support of his averments. The applicant averred that no prejudice shall be occasioned to the respondent should the application be allowed. The Applicant is apprehensive that he is likely to be arrested and placed in custody should the time for extension of compliance for depositing the decretal sum in the joint names of Advocates for the parties is not allowed hence he is more likely to be prejudiced than the Respondent though the Application for stay of execution pending hearing and determination of appeal is pending ruling on the 23.9.2026. 7. The Respondent contended that the Appellant(s) neither deposited the decretal sums in a joint interest earning account in names of both counsels for the parties nor communicated with the Respondent’s Advocates regarding the bank for opening of a joint account until the 14.8.2026 when the account opening form from Cooperative bank limited was submitted to him for signing. 8. The Respondent submitted that The Applicant did not extract the order for service upon the bank for fast-tracking opening of a joint interest earning account hence not assisting the court in expediting the disposal of court business pursuant to Section 1A of the Civil Procedure Act, 2010.He argued that the Appellant(s) are not deserving exercise of court’s discretion to extend time for compliance having failed to demonstrate commitment to obey court orders. 9. Having considered the oral submissions of Learned counsels for the parties on record, the following issues for determination arose: a) Whether the delay is inordinate. b) Whether the Respondent shall, suer prejudice if time is extended. c) Whether the applicant has shown sucient cause for the delay. d) Whether the court has jurisdiction to enlarge time for compliance after expiry of time for compliance. 10. Order 50 rule 6 of the civil procedure rules 2010 provides for enlargement of time as follows Where a limited time has been xed for doing any act or taking any proceedings under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed. 11. Section 95 of the Civil Procedures Act,2010 provides that: “Where any period is xed or granted by the court for the doing of any act prescribed or allowed by this Act, the Court may, in its discretion, from time to time, enlarge such period, even though the period originally xed or granted may have expired. 12 The power to enlarge or extend time for doing any act which time is xed by the court can be exercised by the court in its discretion, even if that time has lapsed as stated in the case of Board of Trustees of African Independent Pentecostal Church of Africa Church v Peter Mungai Kimani & 12 others https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5391/eng@2026-08-31 2

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[2016] KEHC 5920 (KLR). From the cited statutory provisions and case law, it is trite that the power to enlarge or extend time for doing any act which time is xed by the court can be exercised by the court in its discretion even if that time has lapsed. 13. In this case time for opening and depositing the decretal sum in a joint interest earning account in the names of the Applicant's and Respondent’s Advocates lapsed on the 13.8.2026. It is the duty of this court to consider the circumstances that led to noncompliance with conditions of its order dated 23.7.2026 by the Applicant prior to exercising its inherent discretion in favor of or against the Applicant. 14. It is trite that Judicial discretion must be exercised judiciously as restated in the case of Matekwe vs County Government of Kakamega & 14 others (2026) Ke elc 5185 (klr) 2026 even though exercise of Judicial discretion is guided by principles set out in the case of Nicholas Kiptoo Arap Korir Salat vs Independent Electoral and Boundaries Commission & 7 others (2014)eklr that: a) Extension of time is not a right. b) The burden of proof lies on the applicant. c) The delay must be reasonably explained. 15. In the case of Leo Sila Mutiso vs Rose Hellen Wangari Mwangi (1999) 2 EA it was stated that a court of law in exercising its discretion to extend time should consider the length of delay, reason for delay, degree of prejudice to the respondent. In regard to the Applicant’s case there is a delay of a day or less in securing the funds. The Applicant alluded to hard economic times as the obstacle to compliance with set timelines but secured the funds at the last hour of the deadline which he is willing to deposit if granted another chance. The Applicant alluded to mistaken belief that the 21 day compliance period was set to expire on 14.8.2026 and not 13.8.2026 hence obtained the bank account opening forms on 14.8.2026. The explanation by the Applicant is Bonade hence a reasonable cause for the delay has been shown by the Applicant. 16. As to whether there is an inordinate delay in ling the application, The Applicant led the application dated 18.8.2026 and 19.6.2026 in less than 5 days after lapse of set timelines hence there is no inordinate delay in ling the application for extension of time to deposit the decretal sum by Applicant as earlier directed or on terms to be dictated by the court. 17. The Respondent alluded to being denied enjoyment of the fruits of the judgment if the application is allowed hence the prejudice to be suered. The Applicant has secured the funds and if deposited in an interest earning joint account in the names of the Advocates of the Applicant and Respondent, the interest of the respondent shall have been secured. In Hadkinson v Hadkinson [1952] 2 All ER 567, it was held that: - “It is a plain and unqualied obligation of every person against or in respect of whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person aected by an order believes it to be irregular or even void.” 18. The Supreme Court in Board of Governors, Moi High School Kabarak and another versus Malcolm Bell &Another [2013] eklr , stated as follows: - “Inherent powers are endowments to the court as will enable it to remain standing as a constitutional authority and to ensure its internal mechanisms are functional. It includes such powers as enable the Court to regulate its intended conduct, to safeguard itself against contemplation or descriptive intrusion from elsewhere and to ensure that its mode of disclosure or duty is consumable, fair and just". The Court of Appeal in Rose Njoki King’au & Another v Shaba Trustees Limited & Another [2018] eklr noted that Section 3A of the Civil Procedure Ac enshrines the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5391/eng@2026-08-31 3

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19. It is trite that court orders are not issued in vain and have to be obeyed but belated compliance with a court order does not amount to abuse of court process as stated in the case of Oduol v Nation Media Group Limited [2024] KEHC 15175 (KLR. The Applicant has explained his predicament for noncompliance with the court order of 23.7.2026 by a Day or less. The Applicant having secured the decretal sum for deposit as ordered on 23.7.2026 is a gesture of good faith and willingness to comply with the court order though belatedly. In the circumstances it would be unjust to punish the applicant for noncompliance court’s order issued on 23.7.2026 hence nd the application for enlargement of time by applicant not an abuse of court process. 20. It is trite that the overriding objective enshrined in sections 1A,1B and 3A of Civil Procedure Act,2010 and article 159(2) of the constitution of Kenya 2010 is to ensure that substantive justice is done to parties in an expeditious, aordable, proportionate manner rather than reliance on procedural technicalities. It is noteworthy that substantive application for stay of execution pending appeal is due for ruling on the 23,9.2026. The warrants of arrest are likely to executed pending ruling on 23.9.2026. In the interest of justice, it would be futile to allow for execution of warrants of arrest against the Applicant when he has secured the decretal sum, ready and willing to deposit the same on terms to be dictated by the court. Final orders: 21. The Application dated 18.8.2026 is merited and allowed on the following terms: a) The Application for extension of time to deposit the decretal sum by Applicant is allowed to the extent that The Applicant to deposit the decretal sum of kshs 80000/= in A joint interest earning account in the names of the Applicant's and Respondent’s Advocates in a reputable bank or in Court in the alternative within 48 hours from the date of the ruling. b) Pending ruling on 23.9.2026, a stay of execution of the decree inclusive of warrants of arrest of Applicant is granted. c) Costs of the Application shall abide by the outcome of the ruling on the 23.9.2026. Ordered accordingly. DELIVERED, DATED AND SIGNED THIS 31ST DAY OF AUGUST 2026 VIRTUALLY AT VOI HON. J. ORWA JUDGE In the presence of: Mr. Juma for the Applicant. Mr. Mwasighe for the Respondent. David -Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5391/eng@2026-08-31 4

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