Everline Rosa v Catherine Koriko, Benja Koriko & Daniel Koriko

Judgment was delivered on 9th of May 2023, and a Bill of costs was (I) served upon the previous Advocates on 9 th of June 2025, hence the Applicants were aware of delivery of judgment. (II) That the Applicants were served with the decree on 16.05.2025 personally, while the Bill of costs was served on the previous Advocates together with a Ruling Notice on the Bill of costs were served on the previous Advocates. (III) That the supporting affidavit offends section 5 of the Oaths and statutory declarations Act, as it was commissioned in Nairobi while the Deponent was in Kilgoris, and that an Advocate is not permitted to depone on contentious issues before court. (IV) Thus, the application is misconceived as the threshold for grant of the order and that the Applicant is indolent. 5. The Application proceeded by way of written submissions 1ST, 2ND AND 3RD DEFENDANTS’/APPLICANTS’ SUBMISSIONS 6. The Applicants framed and submitted on 3 issues for determination to wit; a) Whether the Defendants/Applicants have established sufficient cause to warrant leave to lodge an appeal out of time against the Judgment delivered on 09.05.2023? b) Whether the Defendants/Applicants have satisfied the conditions for grant of an order of stay of execution pending the hearing and determination of the intended Appeal? And; c) Whether the Defendants/Applicants are entitled to orders sought? 7. On issue No. 1, whether the Defendants/Applicants have established sufficient cause to warrant the grant of leave to appeal out of time, the Applicants submit that they have laid sufficient, reasonable, and convincing grounds to warrant the exercise of the Court’s discretionary jurisdiction in granting leave to file an appeal out of time against the Judgment delivered on 09.05.2023. The Applicants relied on the decisions Page 2|7

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in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR and Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1992] 2 EA 231, and Articles 48 and 50 (1) of the Constitution of Kenya 2010. 8. On issue No. 2, whether the Defendants/Applicants have satisfied the legal threshold for grant of an order of stay of execution pending the hearing and determination of the intended Appeal, the Applicants submit that they have fully satisfied the conditions for the grant of an order of stay of execution as stipulated under Order 42 Rule 6(2) of the Civil Procedure Rules. The Applicants also relied on the decisions in Butt v Rent Restriction Tribunal [1982] KLR 417 and Kenya Shell Limited v Benjamin Karuga Kibiru & Another [1986] KLR 410. 9. On issue No. 3, whether the Defendants/Applicants are entitled to orders sought, the Applicants submit that they have established a proper basis upon which this Honourable Court should exercise its discretion in their favour citing Sections 1A, 1B and 3A of the Civil Procedure Act. 10. On the strengths of their submissions hereinabove, the Applicants pray that the Notice of Motion dated 06.06.2026 be allowed and costs of this Application be awarded to the Defendants/Applicants. PLAINTIFF’S/RESPONDENT’S SUBMISSIONS 11. The Plaintiff/Respondent’s submissions raised 4 key issues for determination to wit; a) Whether the Defendants/Applicants have established sufficient cause to warrant leave to appeal out of time; b) Whether the Defendants/Applicants have satisfied the conditions for grant of stay of execution; and c) Whether the Application is otherwise fatally defective and incompetent. d) Cost Page 3|7

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12. On issue No. 1, whether sufficient cause has been established for extension of time, the Respondent submits that the principles govern ing extension of time to appeal are well settled in Chemaringo v Kibet [2018] KECA 701 (KLR) and the delay in this matter is not merely the eleven months between service of the Decree on 16.05.2025 and the filing of the Application on 06.06.2023 but spans to almost three years from the date of the judgment. 13. On issue No. 2, whether the conditions for stay of execution are satisfied, the Respondent submits that Order 42 Rule 6 (2) of the Civil Procedure Rules requires an Applicant to demonstrate substantial loss, that the application was made without unreasonable delay and that such security as the court may order has been given relying on the case of Dr. G.N Muema P/A Mt View Maternity & Nursing Home v Miriam Maalim Bishar & Another, HCCA No. 20 of 2016, James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR, and Joseph Gachie T/A Joska Metal Works v Simon Ndeti Muema [2012] Civil Appeal 372 of 2012. 14. On issue No. 3, whether the Application is otherwise fatally defective and incompetent, the Respondent submits that the Supporting Affidavit attached to the Application is outrightly fatally defective in two respects; it is deposed entirely by Counsel for the Defendants/ Applicants and the jurat indicates it was sworn in Kilgoris yet the Commissioner for Oath’s stamp discloses a Nairobi practice address in breach of Section 5 of the Oaths and Statutory Declarations Act. 15. The Respondent submits that the Applicants have failed to establish sufficient cause for extension of time to appeal, have failed to satisfy the conditions for grant of stay of execution, and have approached the Court with a fatally defective Supporting affidavit and unclean hands. 16. On the strengths of the submissions above, the Plaintiff/Respondent prays that the application dated 06.06.2026 be dismissed in its entirety, with costs to the Plaintiff/Respondent. Page 4|7

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Issues for determination 17. Having analyzed the application and the rival submissions, and considered the law, the court frames the issue for determination as to (i) Whether or not the application as drawn and filed is competent? (ii) Whether or not the Application is merited? (iii) What reliefs ought to issue. (iv) Who bears the costs of the application? Analysis And Determination 18. A preliminary issue as raised in the Respondent’s Response and submissions, is that the application herein is supported by the affidavit of the Advocate for the parties Miss Gakii Kithinji, it is submitted that the general rule is that an Advocate does not swear an affidavit on contested issues, the court agrees with the said submissions to be the general position of the law as was held recently restated by the Court of Appeal in Ibrahim and Another Vs. Mulisa and Another (Civil Application E058/2024) where the court observed interalia as follows; “The general rule is that advocates, should not swear affidavits, in contested matters. Where the client is available to swear to the disputed facts, the depositions in the affidavit of the advocate, may amount to hearsay unless their sources and grounds for belief are disclosed. More importantly an Advocate who swear an affidavit in contested matter potentially exposes himself to playing the role of both advocate and witness should they be called upon to take the witness stand in order to be cross-examined on such affidavits…This court in Pattni Vs. Ali and Others IEA 339 (2005) KLR 269, held that “whereas it is right that advocates should not swear affidavits on behalf of their clients when clients are readily available to do so as this accords with the spirit of best evidence rule and in view of the provisions of order 18 Rule 2, with common sense and it Page 5|7

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would be embarrassing to apply those provisions to an advocate who may have to relinquish his role as one to become a witness…” 19. Similar remarks on this issue were made in Turea Limited T/A Dr. Mattress Vs. Mohammed (Civil Application E030/2022 (2022) KECA 1271 (KCR) “on the affidavit filed in support of the application that was sworn by the Applicants advocates under Rule of the Advocates Practice Rules, it is not the hear swearing of an affidavit by an Advocate that renders it defective, but the swearing of an affidavit on contentious issues of which he or she has not knowledge of…” 20. In light of the above, the affidavit sworn by Ms. Gakii Kithinji advocate on contentious issues knowledge of the decree and the Bill of costs and Ruling thereof is not factual and in any event the Respondents have annexed communication that was made to the previous advocates and certainly the said facts were not in the knowledge of Miss Kithinji advocate who recently came on record in the mater rendering the supporting affidavit to be defective and liable to be struck out 21. The application is thus not supported by any affidavit as required under the law, hence the issues of o the delay and reasons for the delay in support of the prayer for leave to file an appeal out of time and neither the twins issues substantial loss and prejudice which are the principles to be considered for stay of execution under Order 42 Rule 6, have not been addressed and demonstrated and the application is not only incompetent but hollow hence it is not merited and the same is hereby dismissed with costs. Dated at Kilgoris this 30th day of September, 2026 Hon. M.N Mwanyale Judge In the presence of Page 6|7

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CA – Sylvia/Victor Ms. Kithinji for Applicant Mr. Molo for Respondent Page 7|7

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