Kahawa Sukari Limited v Gatere

6. That pending the hearing and determination of the Intended Appeal, this Honourable Court be pleased to grant a stay of execution of the Judgment of the Court delivered on 22nd August 2025. 7. THAT the costs of this Application be in the cause. 2. The application is supported by the Adavit of Stephen B. Mbugua a Director of the Applicant Company. The deponent deposes that on 22/08/ 2025, the trial Court in Ruiru MCELC No. 6 of 2022 (Catherine Gatere vs. Kahawa Sukari Limited & Another) issued a Judgment directing the Applicant to compensate the Respondent with an alternative plot equal in size and value to Plot No. 1865 within 45 days. Alternatively, in default, the Applicant was ordered to refund the Respondent either the sum of Kshs. 3,900,000.00 with compound interest calculated from 26/10/2011, or Kshs. 8,000,000.00, whichever amount is greater. 3. According to the Applicant, under Section 79G of the Civil Procedure Act, an appeal from a Subordinate Court to the High Court must be lodged within 30 days of the Decree or order. Although more than 30 days have elapsed since the Judgment, the delay was caused by the Applicant changing legal representation, and the statutory timeline expired before current Counsel could be fully instructed. The Applicant initially sought relief through an application dated 4th December 2025 in the trial Court; however, in a Ruling delivered on 3rd February 2026, the trial Court advised the Applicant to approach the appellate Court for appropriate remedies, making this application timely and brought without unreasonable delay. 4. Furthermore, the Applicant is apprehensive that the Respondent will execute the Decree, causing severe nancial loss and irreparable damage that monetary compensation cannot x. The intended appeal raises arguable points of law and fact that would be rendered completely nugatory if execution proceeds before the appeal is heard. Given that the application is meritorious, granting leave to appeal and staying execution serves the overarching interest of justice. 5. The Respondent led Grounds of Opposition dated 28/05/2026 and a Replying Adavit. She stated that she opposes the Applicant’s Notice of Motion dated 23/02/2026 on the grounds that it is incompetent, frivolous, vexatious, and an abuse of Court process contrary to the overriding objectives set out under Sections 1A, 1B, and 3A of the Civil Procedure Act. Crucially, the Respondent contends that the application is fatally defective for failing to satisfy the mandatory jurisdictional requirements of Order 42 Rule 6(2) of the Civil Procedure Rules, 2010, namely that an application for a stay of execution must be made without unreasonable delay and accompanied by security for the due performance of the Decree. Consequently, the Respondent asserts that the interim stay order issued on 3/03/2026 without security for a liquidated Decree of Kshs. 8,000,000/= is irregular, null, and void ab initio, serving merely as a calculated stratagem to delay the Respondent from enjoying the fruits of Judgment. For these reasons, the Respondent urges the Court to exercise its statutory and inherent powers to strike out the application in limine with costs under Section 27 of the Civil Procedure Act. 6. In her Replying Adavit, the Respondent, contends that the Applicant's Notice of Motion dated 23/02/2026 is frivolous, malicious, and an abuse of Court process, urging the Court to dismiss it with costs. She states that Judgment was entered in her favor on 22/08/2025 for a liquidated sum of Kshs. 8,000,000/=, alongside interest and costs, as evidenced by a copy of the Judgment as annexure "CMG-1". The Respondent submits that the Application annexure "CMG-2" fails to meet the mandatory requirements of Order 42 Rule 6(2) of the Civil Procedure Rules, 2010, because it was led on 27/02/2026 six months after Judgment violating the 30-day appeal timeline under Section 79G of the Civil Procedure Act. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5700/eng@2026-09-21 2

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7. She asserts that this six-month delay is inordinate and inexcusable, arguing that an earlier application dated 4/12/2025 as annexure "CMG-3" further demonstrates the Applicant's indolence rather than justifying an extension of time. Moreover, she argues that the interim stay order of 3/03/2026 as annexure "CMG-4" was irregularly obtained without depositing security for the Decree, that the Applicant has failed to demonstrate substantial loss, and that the intended appeal lacks merit given that she lawfully purchased the suit property which the Applicant subsequently resold without right. Ultimately, she calls for the vacation of the interim stay order and the dismissal of the application so that she may enjoy the fruits of her Judgment. 8. In their written submissions regarding the application, the Applicant seeks leave to le a Memorandum of Appeal out of time and a stay of execution of the trial Court's Judgment delivered on 22/08/2025 in Ruiru MCELC No. 6 of 2022, Catherine Gatere vs. Kahawa Sukari Limited & Another. The trial Court had ordered the Applicant to compensate the Respondent with an alternative plot of equal size and value to Plot No. 1865 within 45 days, or in default, refund Kshs 390,000/= with compound interest from October 2011, or Kshs 8,000,000/=, whichever is greater. Addressing the delay in appealing, the Applicant explains that a change of legal representation after the 30-day statutory period caused initial delay, following which an application was led in the Magistrates Court on 4/12/2025, which was dismissed on 3/02/2026 with instructions to seek leave in the Superior Court. Relying on judicial precedents regarding discretionary extension under Section 79G of the Civil Procedure Act, the Applicant contends that they acted promptly after the dismissal and possess a good, arguable cause. 9. Regarding the prayer for a stay of execution under Order 42 Rule 6(2) of the Civil Procedure Rules, the Applicant argues that denying the stay would cause substantial loss and render the intended appeal nugatory, eectively turning the Applicant into a "pious explorer" in the judicial process. Balancing their right to exhaust legal remedies against the Respondent's right to enjoy the fruits of Judgment, the Applicant submits that the scales of justice tilt in favor of granting the stay pending appeal. 10. Finally, the Applicant expresses full willingness to comply with Court-imposed conditions, including the provision of security for the due performance of the Decree as required by law. However, they specically pray that any ordered security deposit in an interest-earning account be capped at Kshs 390,000/= the original purchase price paid by the Respondent rather than the alternative sum of Kshs 8,000,000/=, which forms the core subject of the intended appeal. The Applicant concludes by praying that the application be allowed with costs in the cause. Issues for Determination 11. 12. Having considered the Application dated 23/02/2026, the Supporting Adavit, the Grounds of Opposition, the Replying Adavit, and the Written Submissions led by both parties, two primary issues fall for determination: 1. Whether the Applicant should be granted leave to le and serve the Memorandum of Appeal out of time under Section 79G of the Civil Procedure Act. 2. Whether an order for stay of execution pending the hearing and determination of the Intended Appeal should issue under Order 42 Rule 6(2) of the Civil Procedure Rules, 2010. Section 79G of the Civil Procedure Act confers discretionary jurisdiction upon the Court to extend time to lodge an appeal upon showing good and sucient cause. The factors governing the exercise https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5700/eng@2026-09-21 3

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of this judicial discretion were authoritatively set out in First American Bank of Kenya Ltd v Gulab P. Shah & 2 Others [2002] 1 EA 65, where the Court stated: “ The principles to be considered in exercising discretion whether or not to enlarge time are: (i) the explanation if any for the delay; (ii) the merits of the contemplated action, whether the matter is an arguable one deserving a day in Court or whether it is a frivolous one which would only result in the delay of the course of justice; and (iii) whether or not the Respondent can adequately be compensated in costs for any prejudice that he may suer as a result of a favourable exercise of discretion in favour of the Applicant." 13. Similarly, in Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999] 1 EA 200, the Court of Appeal reiterated: “ It is now settled that the decision whether or not to extend time for appealing is essentially discretionary. The discretion is unfettered, but like all judicial discretion, it must be exercised judicially, upon reason and not caprice, leanings or sympathy. The principles upon which the Court acts in such applications are: rst, 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." 14. Applying these principles to the present facts, Judgment was delivered on 22/08/2025. The statutory 30-day window expired on 21/09/2025. The Applicant explains that the initial delay was occasioned by a change of legal Counsel. Current Counsel came on record and led an application for extension of time in the Subordinate Court on 4/12/2025. Upon the Subordinate Court's Ruling on 3/02/2026 directing the Applicant to approach the appellate Court, the Applicant led the present application on 23/02/2026 just twenty (20) days later. 15. While a total period of six months elapsed between the Judgment and the present application, the Applicant was actively seeking relief in the Subordinate Court from December 2025 until February 2026. This demonstrates that the Applicant did not exhibit outright indolence. Furthermore, the draft appeal touches upon the evaluation of damages and alternative relief amounting to Kshs 8,000,000/ = versus Kshs 390,000/=, which presents an arguable appeal deserving a hearing on the merits. Any prejudice suered by the Respondent as a result of the delay can be adequately compensated in costs. 16. On the 2nd issue, the principles governing the grant of stay of execution pending appeal are anchored in Order 42 Rule 6(2) of the Civil Procedure Rules, 2010, which requires the Applicant to establish: 17. 1. That substantial loss may result unless the order is made; 2. That the application has been made without unreasonable delay; and 3. That security for the due performance of the Decree as may ultimately be binding has been provided. In Jason Ngumba Kagu & 2 Others v Intra Africa Assurance Co. Limited [2014] eKLR, the Court articulated the essence of substantial loss as follows: “ The possibility that substantial loss will occur if an order of stay of execution is not granted is the cornerstone of the jurisdiction of Court in granting stay of execution pending appeal under Order 42 rule 6 of the Civil Procedure Rules. The Court arrives at a decision that substantial loss is likely to occur if stay is not made by performing a delicate balancing act https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5700/eng@2026-09-21 4

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between the right of the Respondent to the fruits of his Judgment and the right of the Applicant on the prospects of his appeal... The substantial loss, therefore, will occur if there is a possibility the appeal will be rendered nugatory." 18. On the issue of security for the due performance of the Decree, the Court of Appeal in Arun C. Sharma v Ashvin Kumar Pranjivan Patel [2014] eKLR emphasized: “ The purpose of security under Order 42 Rule 6 is to ensure that the Decree-holder is not left with a paper Judgment in the event the appeal fails. Security is a mandatory prerequisite and a condition precedent to the grant of stay orders." 19. The trial Court awarded a Decree requiring performance via land substitution or, in default, a monetary compensation of Kshs 8,000,000/= or Kshs 390,000/= with compound interest from October 2011, whichever is higher. Execution of a Decree of this magnitude prior to the determination of the appeal would cause substantial nancial exposure and potentially render the intended appeal academic. 20. While the Respondent contends that the application was delayed and that the interim stay was irregularly granted without security, the Applicant has explicitly expressed willingness to furnish security for the due performance of the Decree as ordered by the Court. However, the Applicant’s prayer to cap security at the principal purchase price of Kshs 390,000/= is unreasonable given the actual exposure under the Decree of Kshs 8,000,000/=. To balance the competing rights preserving the subject matter of the appeal while ensuring the Respondent is protected a conditional stay subject to reasonable security is appropriate. 21. In the totality of the foregoing analysis, the Application dated 23/02/2026 is found to have merit and is allowed on the following terms: i. Leave is hereby granted to the Applicant to lodge and serve the Memorandum of Appeal out of time within fourteen (14) days from the date of this Ruling. ii. Upon lodging and payment of the requisite Court fees within the stipulated fourteen (14) days, the Memorandum of Appeal shall be deemed to be properly led and served. iii. An order of stay of execution of the Judgment delivered on 22/08/2025 in Ruiru MCELC No. 6 of 2022 is hereby granted pending the hearing and determination of the intended Appeal, subject to Condition iv below. iv. The grant of stay in Order (iii) above is conditional upon the Applicant depositing the sum of Kshs 2,000,000/= (Kenya Shillings Two Million) into a joint, interest-earning bank account in the names of the Advocates for the Applicant and the Respondent, OR providing a bank guarantee of the equivalent sum from a reputable commercial bank, within thirty (30) days from the date hereof. v. In default of compliance with Condition (iv) within the specied timeline, the order of stay of execution shall automatically lapse, and the Respondent shall be at liberty to proceed with execution. vi. Costs of this application shall be in the cause. Orders Accordingly. DATED, SIGNED AND DELIVERED THROUGH MICROSOFT TEAMS ON THIS 21ST DAY OF SEPTEMBER, 2026. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5700/eng@2026-09-21 5

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................................ MOGENI J JUDGE In the presence of:Miss Ngerese for the Applicant Mr. Steve Kibinei holding brief for Mr. Banji for the Respondent Mr. Melita - Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5700/eng@2026-09-21 6

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