Jimmy Kyengo v Kimanthi Mwololo & 4 others

6) Costs do abide the application. 2. The application is premised upon the grounds appearing on its face in addition to the supporting affidavit sworn by Jimmy Kyengo on even date. The Applicant averred that a judgment was delivered against him on 12th June, 2025 and that he is dissatisfied with the decision of the lower court. He further averred that he prepared and uploaded the memorandum of appeal to be filed on 11/7/2025 but was unable to do so because systems were down. It was stated that the memorandum of appeal was eventually assessed on 1st July, 2025. 3. The second application is the Notice of Motion dated 19 th August, 2025. The Applicant seeks issuance of the following orders: 1) [SPENT] 2) [SPENT] 3) THAT pending hearing and determination of this application, the application dated 17/7/2025 and the intended appeal there be stay of execution of the judgment of this court delivered on 12/6/2025 and decree issued on 1st July 2025. 4) THAT pending hearing and determination of this application, the application dated 17/7/2025 and the intended appeal the court does issue an order to maintain status quo as to placement on ground as it was prior to the judgment of 12/6/2025 and subsequent survey and subdivisions. 5) THAT pending hearing and determination of this application and the intended appeal, the court does issue an order barring/restraining the Land Registrar Makueni and the County Surveyor Makueni from implementing the subdivisions, mutations, amendment of RIM maps and issuance of titles in the names of the Respondents. ELC MISC APP.NO E021 OF 2025 2|Page

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6) THAT costs of this application be provided for. 4. The application is supported by the affidavit of Jimmy Kyengo sworn on even date. He averred that the Respondents have extracted a court order and have instructed the County Surveyor Makueni to commence survey on land Parcels No. MBOONI/MUTITU/3185, MBOONI/UVUU/1635 and MBOONI/UVUU/1352. It was further averred that the impact of the court’s direction is that it leaves the Applicant and other beneficiaries exposed to survey and subdivision of the parcels of land in dispute. That the said subdivision has been done with total disregard of the developments done by the Applicant and other beneficiaries. It was contended that the Applicant and other beneficiaries are unable to access their homes, farms and other developments because the Respondents have blocked all access roads by placing beacons and fencing. 5. The Applicant contended that unless the orders sought are granted, he stands to suffer eviction which has been threatened by the Respondents. He further contended that the intended appeal would be rendered an academic exercise if the application is disallowed. 6. Opposing the two applications, the 1 st and 2nd Respondents filed a joint replying affidavit sworn on 25 th August, 2025. They averred that the application is merely designed to delay the enjoyment of the fruits of a lawful judgment. It was further averred that the Applicant had not substantiated the allegation that the system was down and neither had he demonstrated why no attempt was made to file manually. The Respondents contended that the Applicant has not met the threshold for leave to appeal out of time under Section 79G of the Civil Procedure Act. Furthermore, it was averred that the Applicant had failed to satisfy the requirements for the grant of an order for stay of execution under Order 42 Rule 6(2) of the Civil Procedure Rules. They urged the court to dismiss the two applications. 7. Parties agreed to dispose of the applications by way of written submissions. ELC MISC APP.NO E021 OF 2025 3|Page

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8. The Applicant filed his submissions dated 5 th June, 2026. On his behalf, Counsel reiterated that the Applicant attempted to lodge his appeal on 11th July, 2025 but there was an intermittent system outage which was not resolved until 14th July, 2025. That by then, the statutory timelines for lodging an appeal had expired hence the application for leave. Counsel further reiterated that in the meantime, the Respondents had obtained a decree and started execution by conducting a survey, subdivision and beaconing of land parcels number MBOONI/MUTITU/3185, MBOONI/UVUU/1635 and MBOONI/UVUU/1352. It was contended that if an order of stay is not granted, the Applicant will be displaced and the subject matter of the appeal will be rendered nugatory. 9. Relying on the provisions of Section 79G of the Civil Procedure Act and the decision of the court in Attorney General v Law Society of Kenya & another [2013] eKLR, to buttress the submission that the Applicant had demonstrated sufficient cause to warrant issuance of the orders sought. It was also submitted that the Applicant’s memorandum of appeal was filed on 15 th July, 2025 which is delay of just one day. 10. Submitting on the necessity of an order for stay of execution pending hearing and determination of the appeal, Counsel contended that due to the ongoing land subdivision, the Applicant is unable to access his home, farm and other developments due to the Respondent’s fencing and beaconing activities. Counsel underscored the fact that if the Respondents register title deeds in their names, it would defeat the appeal by rendering it an academic exercise. A plea was made that the two applications be allowed with costs. 11. The 1st and 2nd Respondents’ submissions were filed on 17 th March, 2026. Counsel submitted that the Applicant had not demonstrated sufficient cause as to invite the court to exercise its discretion in his favour for leave to file an appeal out of time. 12. As for an order of stay of execution under Order 42 Rule 6(2) of the Civil Procedure Rules, Counsel was of the view that the ELC MISC APP.NO E021 OF 2025 4|Page

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Applicant had not demonstrated that he stands to suffer substantial loss should the court decline the application. Counsel further challenged an order of status quo arguing that the Applicant had not placed before court credible evidence that the subdivision exercise was marred with malice. It was further submitted that the Applicant had not demonstrated willingness to comply with an order for security should the court deem it just in the circumstances. 13. Three broad issues for determination arise: a) whether the Applicant has established sufficient cause for an order of enlargement of time in the filing of his appeal again the judgment of the lower court in MCELC No. E003 of 2022; b) whether the Applicant has demonstrated the threshold for an order of stay of execution pending appeal; and c) whether an order of injunction pending appeal should be issued. 14. Section 79G of the Civil Procedure Act outlines the time within which an appeal ought to be filed to the High Court from a subordinate Court. The law provides as follows: ‘Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order: Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.’ 15. Section 95 of the Civil Procedure Act goes on to outline as follows: Where any period is fixed 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 ELC MISC APP.NO E021 OF 2025 5|Page

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though the period originally fixed or granted may have expired. 16. It is common ground that the Judgment in Makueni MCELC No. E003 of 2022 was entered against the Applicant on 12 th June, 2025. The said Judgment was not appealed within the stipulated 30-day statutory period. Nonetheless, this Court has unfettered discretion under the proviso to Section 79G to admit an appeal which has been filed out of time provided that sufficient cause has been demonstrated. 17. The considerations to be made when deciding upon such an application were set out by the Court of Appeal in Edith Gichugu Koine v Stephen Njagi Thoithi [2014] eKLR: “There can be no doubt that the discretion I have to exercise under rule 4 is unfettered and does not require establishment of “sufficient reasons”. Nevertheless, it ought to be guided by consideration of factors stated in many previous decisions of this Court including, but not limited to, the period of delay, the reasons for the delay, the degree of prejudice to the respondent if the application is granted, and whether the matter raises issues of public importance, amongst others – See FAKIR MOHAMED V JOSEPH MUGAMBI & 2 OTHERS, Civil Application Nai. 332 of 2004 (unreported). There is also a duty now imposed on the Court under sections 3A and 3B of the Appellate Jurisdiction Act to ensure that the factors considered are consonant with the overriding objective of civil litigation, that is to say, the just, expeditious, proportionate and affordable resolution of disputes before the Court.” 18. This was the same view expressed by the Court of Appeal earlier in the case of Thuita Mwangi v Kenya Airways Ltd [2003] eKLR where the Court held as follows: “Over the years, the Court has, of course set out guidelines on what a single Judge should consider when dealing with an application for extension of time under rule 4 of the Rules. For instance in Leo Sila Mutiso v Rose Hellen Wangari Mwangi, (Civil Application No Nai 255 of 1997) (unreported), the Court expressed itself thus: ELC MISC APP.NO E021 OF 2025 6|Page

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“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters which this court takes into account in deciding whether to grant an extension of time are: first, 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”.” 19. In this matter, the Appeal ought to have been filed before the expiry of thirty days which means on or before 12 th July 2025. The application for enlargement of time is dated 17 th July, 2025 which is about five days from the last day/date when the appeal should have been filed. The stated length of delay is not inordinate. 20. Explaining his reasons for the delay, the Applicant faulted intermittent outages in the court’s case tracking system which disrupted compliance with Section 79G. To demonstrate the said system outage, the Applicant annexed Exhibit “JK3” which is email correspondence with the court registry. An email dated 11 th July, 2025 from the Applicant’s advocates referring to the system outage and attaching the Applicant’s memorandum of appeal is acknowledged by the court registry on 14 th July, 2025 with a reply that the issue has been resolved. 21. The Applicant has annexed the memorandum of appeal dated 10th July, 2025 as Exhibit “JK2” in his supporting affidavit to demonstrate his willingness and intention of appealing the impugned judgment. Amongst the grounds of appeal is that the learned trial magistrate erred in cancelling titles and issued an order that the Respondents be registered thereof when they had only claimed a portion of the suit land. In Samuel Mwaura Muthumbi v Josephine Wanjiru Ngugi & another [2018] eKLR, the Court held as flows: “Lastly, looking at the Draft Memorandum of Appeal filed, I am unable to say that the intended appeal is in-arguable. Of course, all the Applicants have to show at this stage is arguability – not high probability of success. At this point, the ELC MISC APP.NO E021 OF 2025 7|Page

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Applicant is not required to persuade the Appellate court that the intended or filed appeal has a high probability of success. All one is required to demonstrate is the arguability of the appeal: a demonstration that the Appellant has plausible and conceivably persuasive grounds of either facts or law to overturn the original verdict. The Applicants have easily met that standard. I believe that the Applicant has discharged this burden.” 22. On the prejudice that is likely to be suffered by the Respondents if an appeal is filed out of time, there has been no demonstration that it cannot be adequately compensated by costs. The Court in George Kianda & another v Judith Katumbi Kathenge & another (2018) eKLR aptly held as follows: “The Respondent has not stated that she cannot be adequately compensated in costs for any prejudice that she may suffer as a result of a favourable exercise of discretion in favour of the applicant. It has been said there is one panacea which heals every sore in litigation and that is costs. Seldom, if ever, do you come across an instance where a party has made a mistake which has put the other side to such advantage or that it cannot be cured by the application of that healing medicine. See Waljee’s (Uganda) Ltd vs. Ramji Punjabhai Bugerere Tea Estates Ltd [1971] EA 188.” 23. Going by the above considerations, it is clear that the Applicant has sufficiently demonstrated merit in the application for enlargement of time for filing an appeal. Accordingly, prayer No. (4) of the application dated 17th July, 2025 is merited. 24. On the second issue for determination, the governing law in an application for stay of execution pending appeal is Order 42 Rule 6 (1) and (2) which provide as follows: (1) No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal ELC MISC APP.NO E021 OF 2025 8|Page

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is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside. (2) No order for stay of execution shall be made under subrule (1) unless— (a) the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and (b) such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant. 25. This Court’s discretion to grant an order for stay of execution pending the determination of an appeal is guided by the decision of the Court of Appeal in Butt v Rent Restriction Tribunal [1982] KLR 417 where it held as follows: “1. The power of the court to grant or refuse an application for a stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal. 2. The general principle in granting or refusing a stay is; if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should that appeal court reverse the judge’s discretion. 3. A judge should not refuse a stay if there are good grounds for granting it merely because in his opinion, a better remedy may become available to the applicant at the end of the proceedings. 4. The court in exercising its discretion whether to grant [or] refuse an application for stay will consider the special circumstances of the case and unique requirements. The special circumstances in this case were that there was a large amount of rent in dispute and the appellant had an undoubted right of appeal. ELC MISC APP.NO E021 OF 2025 9|Page

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5. The court in exercising its powers under Order XLI rule 4(2) (b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security for costs as ordered will cause the order for stay of execution to lapse.” 26. Platt Ag. J.A. (as he then was) held as follows in Kenya Shell Ltd v Kibiru [1986] KLR 416: “It is usually a good rule to see if Order XLI Rule 4 of the Civil Procedure Rules can be substantiated. If there is no evidence of substantial loss to the applicant, it would be a rare case when an appeal would be rendered nugatory by some other event. Substantial loss in its various forms is the cornerstone of both jurisdictions for granting a stay. That is what has to be prevented.” 27. Whereas the Applicant has an undoubted right of appeal from the judgment of this court, the Respondents have an equally undoubted right to enjoy the fruits of their judgment. The Applicant annexed a copy of the decree issued by the lower court on 1st July, 2025 as Exhibit “JK4”. They also annexed a copy of a letter dated 4th August, 2025 by the County Surveyor Makueni under the reference “Implementation of the court order Nos. ELC E004 of 2022 and ELC E003 of 2022.” 28. It is manifestly clear that the Respondents have commenced lawful execution of the decree in the lower court judgment. The Applicant annexed Exhibits “JK7” which are photographs showing beacons that have been installed within the suit properties. Moreover, the Respondents have not rebutted the allegations that the Applicant is occupying a distinct portion of land which has been threatened with new developments should the Respondents successfully implement the decree. 29. As for an order of injunction pending appeal, in the case of Venture Capital & Credit Limited vs Consolidated Bank of Kenya Ltd Civil Application No Nairobi 349 of 2003 (174 of 2003 UR) the Court of Appeal gave the following guidance on grant of temporary injunctions pending appeal: - ELC MISC APP.NO E021 OF 2025 10 | P a g e

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“a) The discretion will be exercised against an Applicant whose appeal is frivolous (See Madhupaper International Limited vs Kerr (1985) KLR 840. The Applicant must state that a reasonable argument can be put forward in support of his appeal (J. K. Industries vs KCB (1982 – 88) KLR 1088 (b) The discretion should be refused where it would inflict greater hardship than it would avoid (See Madhupaper supra). (c) The Applicant must show that to refuse the injunction would render his appeal nugatory (See Butt vs Rent Restriction Tribunal (1982) KLR 417 (d) The Court should also be guided by the principles in Giella vs Cassman Brown & Company Ltd (1973) EA 358 as set out in the case of Shitukha Mwamodo & Others (1986) KLR 445” 30. The Applicant argued that since the Respondents have commenced execution of the decree, nothing stops him from displacing him from the suit properties and or blocking access to his homestead. It was argued that should the substratum of the appeal be lost then the appeal will be rendered nugatory. 31. In Kenya Shell Ltd v Kibiru [1986] KLR 416, Platt Ag. J.A. (as he then was) aptly held as follows “It is usually a good rule to see if Order XLI Rule 4 of the Civil Procedure Rules can be substantiated. If there is no evidence of substantial loss to the applicant, it would be a rare case when an appeal would be rendered nugatory by some other event. Substantial loss in its various forms is the cornerstone of both jurisdictions for granting a stay. That is what has to be prevented.” 32. From the foregoing, it is indisputable that in the event the suit property is alienated to the Respondents, survey-work done, mutations and RIM amendments are completed, then the Applicant will suffer substantial loss which cannot adequately be compensated in damages. Should new title deeds be issued to ELC MISC APP.NO E021 OF 2025 11 | P a g e

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the Respondents, it would occasion severe hardship to the Applicant. 33. Under Section 68 (1) of the Land Registration Act 2012, this court is vested with the following powers: ‘The court may make an order (hereinafter referred to as an inhibition) inhibiting for a particular time, or until the occurrence of a particular event, or generally until a further order, the registration of any dealing with any land, lease or charge.’ 34. On the nugatory aspect, the Court of Appeal in Reliance Bank Limited v Norlake Investments Ltd [2002] 1 E.A. 227 expressed the meaning thereof as follows: “‘nugatory’ has to be given its full meaning. It does not only mean worthless, futile or invalid. It also means trifling.” 35. It is evident that the applications herein have been made for purposes of preserving the suit properties in place until the conclusion of the appeal. The objective of an appellate court when determining an interlocutory application for injunction is to preserve the subject matter of the appeal in order to ensure the just and effective determination of a pending appeal. 36. Ultimately, the Applicant has demonstrated merit in the two applications which are hereby allowed in the following terms: 1) Leave is hereby granted to the Applicant to file an appeal out of time against the judgment of the lower court delivered on 12th June, 2025 in respect of Makueni MCELC No. E003 of 2022 Kimanthi Mwololo & another vs- Jimmy Kyengo & another within fourteen days hereof. 2) Pending the hearing and determination of the intended appeal, stay of execution of the judgment of the lower court delivered on 12/6/2025 and decree issued on 1 st July 2025 is hereby issued. ELC MISC APP.NO E021 OF 2025 12 | P a g e

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3) Pending the hearing and determination of the intended appeal, an order is hereby issued barring/restraining the Land Registrar Makueni and the County Surveyor Makueni from implementing the subdivisions, mutations, amendment of RIM maps and issuance of titles in the names of the Respondents. 4) The Applicant shall deposit in court Kshs. 100,000/= as security for the due performance of the eventual decree within Thirty (30) days from the date hereof. 5) THAT costs of the two applications to abide the outcome of the intended appeal. ................................................ HON. E. O. OBAGA, FCIArb JUDGE RULING SIGNED, DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 8TH OCTOBER, 2026. IN THE PRESENCE OF: Ms Kyalo for Respondent Court Assistants - Jackline and Steve ELC MISC APP.NO E021 OF 2025 13 | P a g e

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