Dennis Mokaya Mochama & 1 other v Geoffrey Mayogi Machwara (suing As The Legal Representative of The Estate of Dorothy Monyangi Onguti Deceased)

5. The Application was canvassed by way of written submissions, which I have carefully considered. Issues for Determination 6. The main issues arising are as follows: (i) Whether the Applicants should be granted leave to file an appeal out of time; and (ii) Whether the prayer for stay of execution pending appeal is merited. Leave to Appeal Out of Time 7. Section 79G of the Civil Procedure Act provides: Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days… Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had a good and sufficient cause for not filing the appeal in time. 8. In Nicholas Kiptoo Korir arap Salat vs. IEBC & 7 Others [2014] eKLR it was held that: “ Extension of time is not a right of any party. It is an equitable remedy… A party who seeks extension bears the burden of laying a basis… The delay should be explained to the satisfaction of the court… The application must be brought without undue delay.” 9. In Thuita Mwangi vs. Kenya Airways Ltd [2003] eKLR the Court of Appeal set out the relevant parameters: “ i) 10. The period of delay; ii) The reason for the delay; iii) The arguability of the appeal; iv) The degree of prejudice to the Respondent; v) The importance of compliance with time limits; and vi) The effect on administration of justice or public interest.” In Leo Sila Mutiso vs. Rose Hellen Wangari Mwangi [1999] 2 EA 231, it was emphasized: “ The court has unfettered discretion, but must consider length of delay, reason for delay, chances of appeal succeeding, and prejudice to the respondent.” 11. In the present case, judgment was delivered on 12th February 2025, while the present Application was filed on 14th May 2025, amounting to a delay of about 3 months. 12. The Applicant attributed the delay to the resignation of counsel’s clerk and restructuring within the instructing insurer. In Itute Ingu & Another vs. Isumael Mwakavi Mwendwa [1994] eKLR, the Court of Appeal held: “ …a mistake by counsel, particularly where such a mistake is bona fide, can entitle an applicant to the exercise of the court’s discretion in his favour. But… the Court must, of necessity, examine the nature or quality of the mistake.” 13. Similarly, in Belinda Murai & Others vs. Amos Wainaina [1978] eKLR, the Court stated: “ A mistake is a mistake. It is no less a mistake because it is an unfortunate slip. It should not necessarily debar a party from relief.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13321/eng@2025-09-18 2

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14. I am satisfied that the delay of 3 months is not inordinate, the reasons advanced are plausible, and the Applicants should not be punished for the errors of counsel. Accordingly, leave to appeal out of time is granted. Stay of Execution Pending Appeal 15. Order 42 Rule 6(2) of the Civil Procedure Rules provides that: No order for stay of execution shall be made… 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… has been given by the applicant. 16. In Butt vs. Rent Restriction Tribunal [1982] KLR 417, the Court held: “ The power to grant or refuse stay is discretionary… If there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory… The court may impose security as a condition.” 17. In James Wangalwa & Another vs. Agnes Naliaka Cheseto [2012] eKLR, the Court explained: “ …the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss… The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect… the appeal.” 18. In National Industrial Credit Bank Ltd vs. Aquinas Francis Wasike [2006] eKLR the Court of Appeal held that:“ Inability to recover decretal sums from the Respondent constitutes substantial loss.” 19. The decretal sum herein is Kshs. 7,591,346/= plus costs of Kshs. 332,371/=. The Applicants contend that execution will occasion irreparable loss as the Respondent’s means are unknown. The Respondent did not rebut this position by disclosing his financial capacity. 20. Given the principles in NIC Bank case (supra), I find that the Applicants have demonstrated risk of substantial loss. The delay has already been excused. 21. On security, the Respondent is entitled to enjoy the fruits of his judgment. A conditional stay is therefore justified. Orders 22. Accordingly, I make the following orders: i. Stay of Execution pending appeal is hereby granted to the Applicants on the following conditions: a. The Applicants shall pay to the Respondent half the decretal sum and the full sum of the costs awarded in the trial court being Kshs. 3,795,673 and Kshs. 332,371/= respectively within 30 days from the date of this ruling. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13321/eng@2025-09-18 3

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ii. b. The other half of the decretal sum shall be deposited in a joint-interest earning account, to be held in the names of the parties’ advocates, within 45 days from the date of this Ruling. c. The Applicants are hereby granted leave to appeal out of time and are directed to file and serve their Memorandum of Appeal within 30 days from the date of this Ruling. That in the event of failure to comply with Orders in a) to c) above, the Respondent shall be at liberty to proceed with execution of the judgment decree issued by the trial court. 23. The costs of this Application shall abide the outcome of the Appeal. 24. Orders accordingly. RULING DATED, SIGNED AND DELIVERED AT NYAMIRA VIRTUALLY VIA MICROSOFT TEAMS THIS 18TH DAY OF SEPTEMBER 2025. W. A. OKWANY JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13321/eng@2025-09-18 4

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