Jelimo & another v Chumba

b. That this Honourable Court may be pleased to enlarge time and admit Application for stay of execution notwithstanding the delay in filing. c. That costs of the Application be in the cause. 2. Briefly, in the application anchored on the 2 nd applicant’s supporting affidavit of even date and the grounds on its face, the applicant asserted that they are likely to suffer irreparable loss including rendering the intended appeal a mere academic exercise and or prevent it, if the prayers therein are not granted. The delay to mount the application was occasioned by mistake of their former counsel and the illness on the part of the 1 st applicant herein. 3. The Respondent through Rioba Omboto & Company Advocates, filed a replying affidavit sworn on 20 th April 2026 by Selah Jelagat Chumba in opposition to the application and asserted that the application has been brought after an inordinate and unexplained delay of over one year. That the Applicants did not satisfy the conditions for the grant of stay of execution pending appeal namely; proof of substantial loss, filing the application without KAPSABET ELCA E006 OF 2023-RULING 2

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unreasonable delay, provision of security for due performance of the decree. 4. By their submissions dated 20th July 2026, learned counsel for the applicants held the position that delay alone is not fatal where satisfactory explanation is placed before court. That the Applicant filed a Notice of Appeal but delayed in filing the application for stay of execution of the judgment and subsequent decree because the advocate who had the conduct of the matter failed to file the said application, despite having instructions to do so. They relied on the case of Andrew Kiplagat Chemaringo –vs- Paul Kipkorir Kibet (2018) eKLR to submit that there is no minimum or maximum delay as long as the delay is satisfactorily explained. 5. Additionally, counsel submitted that they had placed before the court medical records which demonstrated that one applicant had been taken ill during the relevant period. That the medical circumstances further impeded his ability to pursue the application with the promptness that would otherwise have been expected. KAPSABET ELCA E006 OF 2023-RULING 3

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6. Further, counsel submitted that they had already filed a notice of appeal demonstrating that they had an arguable appeal which deserved to be considered by the Appellate Court. That they would comply with any directions on depositing of security in Court and relied on the case of RWW -vs- EKW (2019) eKLR which established that the purpose of stay of execution is to preserve the subject matter while balancing the interests of the parties and considering the circumstances of the case. 7. Learned counsel for the Respondent filed her written submissions dated 20th July 2026 and contended inter alia, that the Applicants have failed to demonstrate sufficient cause to warrant the grant of an order of stay of execution pending appeal. Counsel relied on Order 42 Rule 6 (2) of the Civil Procedure Rules 2010 that places the burden upon the applicants to satisfy the court that substantial loss may result unless the order sought is granted, that the application has been brought without unreasonable delay, and that security has been furnished for the due performance of the decree. KAPSABET ELCA E006 OF 2023-RULING 4

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8. To further fortify the submissions, reliance was made on several authorities including Butt vs. Rent Restriction Tribunal (1982) KLR 417 and submitted that the Applicants had failed to meet the threshold contemplated under Order 42 (supra) on grant of such orders. Counsel submitted that while courts have excused genuine mistakes of advocates, such indulgence is not available where the applicant has himself failed to demonstrate vigilance in his own case. That the applicants’ conduct is indicative of gross indolence and a deliberate failure to pursue their rights with the diligence expected of litigants seeking equitable relief. 9. This court has duly considered the application, the response thereto and the rival submissions inclusive of the authorities relied there upon in entirety. So, issues for determination are whether the applicants have established the conditions in respect of stay of execution of judgment and decree herein as well as appeal out of time. 10. The Applicants submitted that they will suffer substantial loss if execution proceeds and concludes KAPSABET ELCA E006 OF 2023-RULING 5

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before the hearing and determination of the appeal. On the other hand, the Respondent submitted that the Applicant had failed to demonstrate any actual loss in the event that the orders sought are denied. This court is cognizant of the provisions of Article 50 of the Constitution of Kenya 2010 which guarantees the right to a fair hearing and Article 25 of the same Constitution which enshrines the unlimited right to fair trial. 11. This court is guided by the case of Butt (supra) that although the jurisdiction to grant stay is discretionary, such discretion must be exercised judicially and upon established legal principles. Sections 1A, 1B, 3 and 3A of the Civil Procedure Act (Cap 21) mandate this court to ensure that it gives effect to the overriding objective of the Act and to ensure the just determination of all proceedings before it. The essence is to deliver substantive justice for the parties and avoiding the abuse of the court process. 12. In the case of Kenya Shell Limited vs. Benjamin Karuga Kibiru & Another (1986) KLR 410, it was observed that substantial loss is the single most important KAPSABET ELCA E006 OF 2023-RULING 6

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consideration in determining whether a stay should issue. What then is substantial loss? An applicant must go further and demonstrate, through cogent evidence, that execution will create a state of affairs that would irreparably affect or negate the very essence of the intended appeal. 13. On the face of the documents placed before this Court, and without interrogating the merits or demerits of the parties’ respective cases, this Court notes that there is property whose ownership is disputed and from which the other party seeks eviction. The matter was first instituted at the Chief Magistrates Court, later to this court and now the Applicant has lodged an appeal at the Court of Appeal. The Applicants are therefore, afraid that if execution is allowed to proceed, the appeal will be rendered nugatory. By the annexures attached to the Applicants’ Supporting Affidavit sworn by the Applicant on 13th March 2026 an appeal is deemed filed on 24 th February 2025 by the Notice of Appeal dated 21 st February 2025. Also, I note that a request for proceedings was made on the 28th February 2025 and the same paid for on the 18 th KAPSABET ELCA E006 OF 2023-RULING 7

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March 2025. This clearly demonstrates the applicants’ desire and intention to have their appeal heard at the Court of Appeal. 14. On that score, the applicants would suffer substantial loss in the event that such an appeal is rendered nugatory for the reason that execution has already concluded. This court is of the view that there can never be a greater loss, than the loss of the right to be fairly heard. This court agrees with the applicants that if the orders sought are not granted, in order to preserve the suit property, then they are likely to suffer substantial loss, emanating from the inability for them to have a fair hearing at the Court of appeal. The first requirement under Order 42 Rule 6(2) (supra) succeeds accordingly. 15. The Applicants has acknowledged, both in their application and in the submissions that they had delayed to file the instant application. They have explained that the delay was caused by failure by their previous advocate who filed the notice of appeal and requested for proceedings, to act on the instruction to file an application to stay the execution of the judgment rendered herein. KAPSABET ELCA E006 OF 2023-RULING 8

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16. In addition, the applicants provided medical records showing that one of the Applicants had been taken ill. The 1st Applicant who is a Hypertensive patient, was unwell during the period in question, and that because of the sickness, she was unable to follow up with the advocate on the progress of the case. The Applicants attached the medical tests carried out on 27 th July 2023 for Ann Jelimo and also attached a letter from Kaptumo Sub-County Hospital dated 11th March 2026 indicating that the said Ann Jelimo had been a Hypertensive patient since the year 2021 and that she undergoes treatment at the said facility. 17. The Supreme Court of Kenya in Muya vs. Tribunal Appointed to Investigate the Conduct of Justice Martin Mati Muya, Judge of the High Court of Kenya (Petition 4 of 2020) [2022] KESC 16 (KLR), in determining whether there is inordinate delay, held that; “[143] the focus should not be on the length of the delay per se, but also on the justification and reasons, which in turn must be rational and plausible.” KAPSABET ELCA E006 OF 2023-RULING 9

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18. Similarly, in Karani vs. Judicial Service Commission (Petition 3 of 2021) [2022] KESC 37 (KLR) the Supreme Court held that; “[119] …Where there is delay, the Court must interrogate whether the same is justifiable and thus excusable, or not. In order to do that, the Court must interrogate the circumstances of the case.” 19. The circumstances of this case and being g uided by the above authorities as well as bearing in mind that the applicants have demonstrated having been unwell during the period of the appeal, the applicants demonstrated their desire and interest in being heard at the Court of appeal. By the two reasons advanced by the applicants, this Court is satisfied that the delay was justified, as he reasons provided for the delay are rational and plausible. 20. Regarding security, in Vishram Ravji Halai vs. Thornton & Turpin Civil Application No. Nai. 15 of 1990 [1990] KLR 365, the Court of Appeal, discussing the High Court’s [read ELC’s] jurisdiction under Order 42 (supra) stated; “The Superior Court’s discretion to order a stay of execution of its order or decree is fettered by three KAPSABET ELCA E006 OF 2023-RULING 10

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conditions. Firstly, the applicant must establish a sufficient cause, secondly the court must be satisfied that substantial loss would ensue from a refusal to grant a stay and thirdly the applicant must furnish application security must of (emphasis course be added). made The without unreasonable delay.” 21. The Applicants submitted that they are willing to comply with the court’s directions requiring them to deposit security in court, should any such order be made. The Respondent on the other hand faulted them for failing to provide any evidence of having made the said deposit instead of making empty statements of ability to make the deposit. In Arun C Sharma vs. Ashana Raikundalia t/a Rairundalia & Co. Advocates & 2 others [2014] eKLR, the court stated thus: ”The purpose of the security needed under Order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the applicant. It is not to punish the judgment debtor... KAPSABET ELCA E006 OF 2023-RULING Civil process is 11 quite

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different because in civil process the judgment is like a debt hence the applicants become and are judgment debtors in relation to the respondent. That is why any security given under Order 42 rule 6 of the Civil Procedure Rules acts as security for due performance of such decree or order as may ultimately be binding on the applicants. I presume the security must be one which can serve that purpose.” 22. Having found that the applicants have demonstrated substantial loss and justified their delay in filing the instant application, it follows that the Applicants must deposit security for due performance of such decree or order as may ultimately be binding upon them. Thus, the application has attained the requisite conditions hence, meritorious. 23. A fortiori, the application dated 13 th March 2026, is hereby allowed as follows; i. An order of stay of execution of the judgment dated 10th February 2025 KAPSABET ELCA E006 OF 2023-RULING be issued subject 12 to the

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Applicants depositing in Court security of Kshs 15,000/= (Kenya shillings fifteen thousand only) within 15 days of this date failure of which the stay of execution and enlargement of time to lapse automatically. ii. The time to file and serve the intended appeal is enlarged for the next fifteen days from this date. iii. Costs of this application to abide the outcome of the intended appeal. 24. Accordingly, this case is closed. 25. It is so ordered. DATED and DELIVERED at KAPSABET this 29th day of September 2026 HON. G M A ONGONDO JUDGE In the presence of; 1. Mr. Bitok learned counsel for the applicants. 2. M.r Kwanusu Nafula learned counsel for respondent. KAPSABET ELCA E006 OF 2023-RULING 13 the

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3. Emmaculate Chepkorir, Court Assistant. KAPSABET ELCA E006 OF 2023-RULING 14

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