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2. c. The Applicant be allowed to file its Memorandum of Appeal out of time in terms of the attached draft and marked ‘SD-3’. d. The costs of this application be provided for. The Application was brought under Order 50 Rule 6, Order 51 Rule 1 and Order 42 Rule 6 of the Civil Procedure Rules, Sections 79G and 3A of the Civil Procedure Act. The Applicant’s case. 3. It is the Applicants case that they are dissatisfied with the judgment and decree delivered on the 31st day of January 2024 in Kithimani CMCC No. E061 of 2022; 4. Applicants instructed their advocates on record to institute an appeal but there was an inadvertent delay in procuring the copy of the judgment and filing the memorandum of appeal. 5. The delay to appeal within time was not deliberate but a genuine oversight on the part of the advocate and the Applicants herein should not stand to suffer based on the mistakes of their Counsel. 6. The granting of the order sought will not occasion any prejudice to the Respondents. 7. It is in the interest of fairness and justice that the Applicants be allowed to lodge their appeal despite the lapse of time as it has an arguable appeal with a high probability of success. 8. There has been no unreasonable delay in the bringing of this Application. 9. The Application is also supported by the supporting Affidavit of Sylvester Dede sworn on 12/4/2024. The Respondent’s case. 10. The Respondent opposed the Application through a Replying Affidavit dated 18th February 2022 sworn by John Mutisya Nzioka. It was their case that the said application is incompetent, misconceived bad in law and ought to be struck out. 11. That the deponent of the supporting affidavit being an advocate has sworn an affidavit relating to a contentious matter, which offends the rules of practice, and thus the affidavit should be struck out. 12. The Applicants have failed to demonstrate that they have an arguable appeal that raises triable issues with a high chance of success to enable this court grant the Orders sought. 13. The Respondents believe this application is solely meant to further delay the enjoyment of the fruits of their judgment, and the same should be dismissed with costs. Analysis and Determination 14. I have considered the application, the supporting affidavit, the Replying Affidavit, and the rival submissions filed by the parties’ counsel as well as the judicial decisions relied upon. It is clear that the Respondent has not contested representation of the Applicant’s present advocates on record and have not made any submissions on the same. In my view, the issues for determination are as follows: a. Whether the court should exercise its discretion to grant the applicants leave to file their appeal out of time; b. Whether the applicant has met the prerequisite for grant of stay of execution pending appeal; https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14330/eng@2025-03-13 2

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A. Whether the court should exercise its discretion to grant the applicants leave to file their appeal out of time; 15. Section 79G of the Civil Procedure Act provides that: “ 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.” 16. The discretion to extend time must be exercised within the principles of the law and factors to be considered when determining such an application. The principles were set out in the Court of Appeal case of Omar Shurie v Marian Rashe Yafar (Civil Application No. 107 OF 2020) UR where it was held: “ 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.” 17. The Applicants Advocate clearly stated that Judgment was delivered on 31/1/2024. The law allowed them 30 days within which they were to file an appeal. He also stated that he received a copy of the Judgement around 27/2/2024 and immediately prepared their judgment advice which they shared with their client on the same day. 18. On 6/3/2024, their client instructed them to file an appeal based on the fact that the decretal sum awarded was inordinately too high given the circumstances of the case. That due to an inadvertence on their part, they did not see the said instructions until the day they filed this application. 19. The Applicants argue that they have an arguable appeal with high probability of success as per the draft Memorandum of Appeal and this court has discretion to allow the application 20. That if the time to lodge appeal is not enlarged and an order of stay of execution granted, the Applicants will be greatly prejudiced as the Respondents will proceed with execution which may render the intended appeal nugatory. 21. The Applicants put the blame for the delay squarely on the lack of the judgement. From the contents of the Supporting Affidavit sworn by the Applicants’ Advocate, it is my understanding that the Advocate send their representative to visit the Registry at Kithimani Law Courts to get a certified copy of the judgement but he could not procure a certified copy of the same at the time because the presiding Magistrate was away on official duty although the representative was assured that the certified copy would be sent to them that week. They received a copy of the Judgement around 27/2/2024 and immediately prepared their judgment which they shared with their client on the same day. 22. On 6/3/2024, their client instructed them to file and appeal based on the fact that the decretal sum awarded was inordinately too high given the circumstances of the case. That due to an inadvertence https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14330/eng@2025-03-13 3

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on their part, they did not see the said instructions until the day they filed this application 12/4/2024 almost two and a half months later. 23. I cannot accept the Applicants’ reasons for the delay to be satisfying. First, in this era and time, why would the Applicants’ advocate have to send their representative physically to Kithimani when they could have requested for the copy of the judgement electronically. In any event, the Applicants have not adduced proof of any attempts they made to obtain the copy of the judgement save for their representative’s visiting Kithimani Law courts which they have equally not proved. Second, the Advocate for the Applicants stated that 6/3/2024, their client instructed them to file and appeal but due to an inadvertence on their part they did not see the said instructions until late. One would ask, why couldn’t the Applicants as the owners of the case also follow up with their Advocates to confirm if the appeal had been filed as instructed. In my opinion both the Applicants and their advocates are guilty of the inordinate delay in the filing of the appeal in the circumstances of this matter. 24. The Applicants’ Advocate has admitted at paragraph 2 of the supporting affidavit that judgement was delivered on 31/1/2024 in the presence of both counsels. Therefore, nothing stopped the Applicants from advising their clients of the judgment based on the figures that were stated in the judgment and based on them prepare and file a Memorandum of Appeal within the stipulated 30 days and if need be, upon the receipt of the judgement, apply to make amendments. 25. I am persuaded by the case of Paul Njage Njeru v Karija K Mugambi (2021) eKLR where Patrick Otieno J. held that: “ The Court takes the learning that the timeline of filing a memorandum of appeal is different from the timeline of filing a record of appeal. Filing a memorandum of appeal does not require the filing of typed and certified proceedings. An Advocate may peruse the Judgment and craft grounds of appeal which can be amended later”. 26. I find the explanation by the Applicants to be inadequate. It is also salient to note that the Applicants failed to attach a copy of the judgement to the instant application whether certified or not. 27. The importance of giving a sufficient reason for the extension of time to appeal was discussed in the Court of Appeal case of Susan Ogutu Oloo & 2 Others v Doris Odindo Omolo (2019) eKLR where it was held:“ In an application for extension of time, the single Judge has discretion. I am aware that the discretion I have is to be exercised judiciously and not whimsically or capriciously. The guiding principles on the issue of extension of time was laid out by the Supreme Court in Nicholas Kiptoo Arap Korir Salat v IEBC (2014) eKLR Sup Ct Application No 16 oF 2014.The Supreme Court aptly stated extension of time is not a right of a party; a party who seeks extension of time has the burden of laying a basis to the satisfaction of the Court. Of paramount importance, the reason for delay must be explained to the satisfaction of the Court. Further, the application for extension must be brought without undue delay and it must be demonstrated if the respondent will not suffer prejudice if extension is granted”. 28. However, as earlier indicated, the time that has lapsed between the date of the Judgment and the date of filing this application was approximately two and a half months. It is my finding that the delay was inordinate. 29. Before I pen off on the issue of delay and the reason therefore, I wish to address an issue raised by the Respondent at paragraph 6 of the Replying Affidavit that he was advised by their advocates on record, https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14330/eng@2025-03-13 4

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which advice he verily believed to be true and correct, that the deponent has deponed to matters that are not within his personal knowledge, which offends the provisions of Order 19 Rule 3. 30. Order 19 Rule 3 of the Civil Procedure Rules 2010, on matter to which affidavits shall be confined provides that; 1. Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove: Provided that in interlocutory proceedings, or by leave of the court, an affidavit may contain statements of information and belief showing the sources and grounds thereof. 2. The costs of every affidavit which shall unnecessarily set forth matters of hearsay or argumentative matter or copies of or extracts from documents, shall (unless the court otherwise directs) be paid by the party filing the same. 31. To my mind, the Applicants’ advocate deponed to the delay in filing the appeal which was attributed to their firm not having received a copy of the judgment in time and the failure to promptly see the instructions from their clients. The Advocate did not put any blame on their clients for the delay and those were matters the advocate could depone to. I am therefore unable to hold that the Affidavit is incompetent. 32. As to whether the Affidavit is in breach of Order 19 Rule 3 of the Civil Procedure Rules, the procedure as I know it is for the opposing party to refer the specific offending paragraphs of the Affidavit and invite the court to strike them out. This the Respondent did not. I am therefore hesitant to hold that the Supporting Affidavit is wholesomely in breach of the provisions of Order 19 Rule 3 of the Civil Procedure Rules. B. Whether the applicant has met the prerequisite for grant of stay of execution pending appeal; 33. Stay of execution pending appeal is governed by Order 42 Rule 6 of the Civil Procedure Rules. It is evident from the said provision that power to grant stay of execution pending appeal is an exercise of discretion of the court on sufficient cause being shown by the applicant that substantial loss may result to the applicant if the orders are denied; the application should be made without undue delay and the court will impose such security as the court may impose for the due performance of any decree or order as may ultimately be binding on the Applicant (see Butt Vs Rent Restriction Tribunal (1982) KLR 417 and James Wangalwa & Another Vs Agnes Nalika Chereto (2012)eKLR) 34. The case of Masis Mwita vs Damris Wanjiku Njeri (2016) eKLR provided the guiding principles which the court should consider while determining an application of this nature. These were; (a) The power of the court to grant or refuse an application for stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal. (b) 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 to be rendered nugatory should that appeal court reverse the judge's discretion. (c) A judge should not refuse 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. (d) The court in exercising the discretion whether to grant (or) refuse an application for stay will consider the special circumstances of the cases and unique requirements. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14330/eng@2025-03-13 5

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35. On the first criterion as set out in Order 42 Rule 6 (2) i.e. Whether Applicant/Appellant has brought this application without unreasonable delay. The decision as against which this appeal has been filed was delivered on 31/1/2024 and this application was lodged before this court on 12/4/2024, which was about two and a half months after the judgement. This court is of the view that the application was made with undue delay. 36. The second criterion is whether the Applicants have demonstrated that they are bound to suffer substantial loss if orders of stay of execution are not granted. The question that follows is what comprises substantial loss. In Silverstein Vs Chesoni (2002)1 KLR 867 it was held that: “ The issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the Appeal nugatory” 37. The applicants submitted that they stand to suffer loss if the application is denied for the reason that the decretal amount is huge and further that they have an appeal that raises triable issues and the same will be rendered nugatory if the stay of execution is not granted. 38. The third criterion is that the Applicants must furnish security for the due performance of the decree. I am fully aware that the court has a delicate task of balancing the interests of both the Appellants and the Respondent. The Appellant who seeks to preserve the status quo pending the hearing of the Appeal so that his Appeal is not rendered nugatory and the interest of the Respondent who is seeking to enjoy the fruits of his judgement. It is true that under Order 42 rule 6 aforesaid, the Applicant is required to offer security for the due performance of the decree and the Court is entitled to take into account the fact that no such security has been offered in deciding an application thereunder. I agree with the position in Mwaura Karuga t/a Limit Enterprises vs. Kenya Bus Services Ltd & 4 Others [2015] eKLR, where it was held that: “ … the security must be one which shall achieve due performance of the decree which might ultimately be binding on the applicant. The rule does not, therefore, envisage just any security. The words ‘’ultimately be binding’ are deliberately used and are useful here, for they refer to the entire decree as will be payable at the time the appeal is lost. That is the presumption of law here. Therefore, the ultimate decree envisaged under order 42 rule 6 (2) (b) of the Civil Procedure Rules includes costs and interest on the judgment sum unless the latter two were not granted-which is seldom. The security to be given is measured on that yardstick.” 39. I also associate myself with the holding in Gianfranco Manenthi & another vs. Africa Merchant Assurance Company Ltd [2019] eKLR, where the court observed: “ … the applicant must show and meet the condition of payment of security for due performance of the decree. Under this condition a party who seeks the right of appeal from money decree of the lower court for an order of stay must satisfy this condition on security. In this regard, the security for due performance of the decree under order 42 rule 6(1) of the Civil Procedure Rules, it is trite that the winner of litigation should not be denied the opportunity to execute the degree in order to enjoy the fruits of his judgment in case the appeal fails. Further, Order 42 should be seen from the point of view that a debt is already owed and due for payment to the successful litigant in a litigation before a court which has delivered https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14330/eng@2025-03-13 6

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the matter in his favour. This is therefore to provide a situation for the court that if the appellant fails to succeed on appeal there could be no return to status quo on the part of the plaintiff to initiate execution proceedings where the judgement involves a money decree. The court would order for the release of the deposited decretal amount to the respondent in the appeal … This the objective of the legal provisions on security was never intended to fetter the right of appeal. It was also put in place to ensure that courts do not assist litigants to delay execution of decrees through filing vexatious and frivolous appeals. In any event, the issue of deposit of security for due performance of decree is not a matter of willingness by the applicant but for the court to determine.” 40. The law is that where the applicant intends to exercise its undoubted right of appeal, and in the event, it were eventually to succeed it should not be faced with a situation in which it would find itself unable to get back its money. Likewise, the Respondent who has a decree in his favour should not, if the applicant were eventually to be unsuccessful in its intended appeal, find it difficult or impossible to realize the decree. This is the cornerstone of the requirement for security. The issue of adequacy of security was dealt with by the Court of Appeal in Nduhiu Gitahi vs. Warugongo [1988] KLR 621; 1 KAR 100; [1988-92] 2 KAR 100 where the Court of Appeal expressed itself as follows: “ The process of giving security is one, which arises constantly. So long as the opposite party can be adequately protected, it is right and proper that security should be given in a way, which is least disadvantageous to the party giving the security. It may take many forms. Bank guarantee and payment into court are but two of them. So long as it is adequate, then the form of it is a matter, which is immaterial. In an application for stay pending appeal the court is faced with a situation where judgement has been given. It is subject to appeal. It may be affirmed or it may be set aside. The court is concerned with preserving the rights of both parties pending that appeal. It is not the function of the court to disadvantage the defendant while giving no legitimate advantage to the plaintiffs. It is the duty of the court to hold the ring even-handedly without prejudicing the issue pending the appeal. For that purpose, it matters not whether the plaintiffs are secured in one way rather than another. It would be easier for the defendants or if for any reason they would prefer to provide security by a bank guarantee rather than cash. There is absolutely no reason in principle why they should not do so. The aim of the court in this case was to make sure, in an even-handed manner, that the appeal would not be prejudiced and that the decretal sum would be available if required. The respondent is not entitled, for instance, to make life difficult for the applicant, so as to tempt him into settling the appeal. Nor will either party lose if the sum is actually paid with interest at court rates. Indeed, in this case there is less need to protect the defendant because nearly half the sum will have been paid and the balance was at one stage open to negotiation to reduce it”. 41. As regards security for costs, the applicants have stated that they are ready and willing to abide by any conditions this court may wish to attach to the grant of stay of execution pending the determination of the intended appeal. 42. There is also no demonstration that the Respondent will suffer prejudice if the Applicant is allowed to exercise his right to appeal save that they will be delayed and denied the right to enjoy the fruits of their successful litigation. 43. The Applicants are not contesting liability which was entered by consent of the parties. In exercise of my judicial discretion, I allow the Notice of Motion dated 12th April 2024 on the following terms: https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14330/eng@2025-03-13 7

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44. a. The Applicant shall pay the Respondents through their Advocates on record half of the decretal amount less apportioned liability within Thirty (30) days of this ruling b. The Applicants will also deposit half of the decretal amount into a joint interest earning bank account to be opened in the names of parties’ advocates firm names within Forty Five (45) days of this ruling. c. The Appellants will file and serve their Record of Appeal strictly within Forty Five (45) days from the date hereof. d. Failure to comply with orders (a) and (b) above, execution to proceed and failure to abide by the timeline in order (c) will invalidate the leave granted. e. The Applicants, though successful, are not entitled to costs in this application and the same are awarded to the Respondents. Orders accordingly. RULING DATED, SIGNED & DELIVERED VIRTUALLY AT MACHAKOS THIS 13TH DAY OF MARCH 2025 ……………………….. NOEL I. ADAGI JUDGE In the presence of: 1. N/A for Applicant 2. Mr. Ngundu for the Respondent 3. Milly Grace for Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14330/eng@2025-03-13 8

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