Mogo Auto Limited v Thomas Onsoti Nyaata

3. The application is supported by the affidavit of Erick Omondi Onditi, the Applicant’s Legal Officer, sworn on 4th December, 2024. The affidavit serves to expound on the above grounds. 4. In his affidavit, the said deponent explains on oath that the judgement in the matter before the lower court was delivered on 16th October, 2024 and that the Applicant’s Advocates informed the Applicant of the same. A copy of the judgement was furnished upon the Applicant on 16th October, 2024. 5. The deponent further states that the Applicant is aggrieved with the lower court’s judgement and wishes to appeal and to that end, the Applicant’s Advocates wrote to the lower court on 3rd December, 2024 seeking for certified copies of the proceedings and judgement to enable the Applicant to lodge its appeal and that the same are yet to be supplied. 6. The deponent states that the application has been made without unreasonable delay and that the intended appeal which is arguable, stand to be rendered nugatory if the orders sought in the application are not granted. 7. Finally, the deponent states that the Applicant shall abide by any conditions that the court may issue in granting the application. 8. The application is opposed and to that end the Respondent filed a replying affidavit that he swore on 16th December, 2024 and a statement of grounds of opposition of even date. The Respondent also filed a notice of preliminary objection of even date. 9. The gist of the preliminary objection and the grounds of opposition is that this court has no jurisdiction to entertain the Applicant’s motion in view of the consent that was recorded by the parties on 29th November, 2024 and that the application is mischievous, incompetent and an abuse of the process of the court as execution is complete as the Applicant released the Respondent’s motor vehicle that was subject to the proceedings before the lower court, in terms of the judgement. That the only issue outstanding is the payment of costs, which the parties agreed on at Ksh.150,000/- in the consent recorded before the lower court. 10. The Respondent reiterated on oath in his replying affidavit that the judgement that was entered in the lower court was actualised by the Applicant save for payment of agreed costs and that the application that is the subject of this ruling was filed only after the Respondent commenced execution proceedings to recover costs. 11. The Respondent states that the Applicant has not, in any event, given tenable reasons as to why the appeal was not filed within time. 12. The application proceeded by way of brief oral submissions, whereby the parties essentially restated the positions in their respective affidavits. 13. Having perused the application, the affidavit in support thereof, the the replying affidavit, the grounds of opposition, the preliminary objection and the parties’ respective submissions, I deduce the issues for determination to be as follows: a. Whether the Applicant has met the prerequisites for the grant of leave to appeal out of time. b. Subject to (a) above, whether the court should exercise its discretion to grant the Applicant leave to file its appeal out of time. Subject to (a) and (b) above https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16730/eng@2025-10-30 2

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c. Whether the Applicant has met the prerequisites for the grant of an order of stay of execution pending the determination of the intended appeal. 14. It is unfortunate that neither of the parties provided a copy of the judgement but what I discern from the parties’ affidavits is that the decree before the lower court was non-monetary and that the Respondent, in compliance with the decree, released motor vehicle of the decree to the Respondent. 15. What I further note from the material provided by the parties is that the stay of execution order that the Applicant seeks pending the determination of the intended appeal is in respect of costs that were agreed upon at Ksh.150,000/- by the parties vide the consent recorded on 29th November, 2024. 16. I will proceed to determine issue (a) and (b) together and will then proceed to address issue (c). 17. With regard to the first and second issues for determination, which is whether the Applicant has met the prerequisites for the grant of leave to appeal out of time, and whether this court can proceed to grant the leave sought, the applicable provision of statute is Section 79G of the Civil Procedure Act, which provides as follows: 79G. 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 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. 18. It is clear from the text of the above provision of statute that before the court considers granting an order to allow the appeal to be filed out of time, the Applicant must demonstrate to the court that he has good and sufficient cause for filing the appeal out of time (see the cases of Diplack Kenya Limited v William Muthama Kitonyi [2018] eKLR and Nicholas Kiptoo Korir arap Salat v IEBC and 7 Others [2014] eKLR). 19. The Supreme Court in the case of Salat (supra) held inter alia that: “ The underlying principles a court should consider in exercise of such discretion should include: a. Extension of time is not a right of any party. It is an equitable remedy that is only available to a deserving party at the discretion of the court; b. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court; c. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case by case basis; d. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court; e. Whether there will be any prejudice suffered by the respondent if the extension is granted; and f. Whether the application has been brought without undue delay.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16730/eng@2025-10-30 3

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20. Whether there is a reasonable ground for the delay, the Applicant states that the instructions to its Advocates to file a memorandum of appeal were issued and/or communicated and that the Applicant applied for proceedings and judgement (contrary to the Applicant’s own position in the supporting affidavit that the judgement was supplied on 16th October, 2024). 21. Although the Applicant states that proceedings of the lower court have not been supplied, the supporting affidavit bears annexture “E-OO1” – the memorandum of appeal, which then means that the alleged delay in the processing and supply of proceedings did not impede the Applicant from preparing and filing its memorandum of appeal. 22. The Applicant has therefore not given any reasons as to why the appeal was not filed within the 30 days that the law provides. There is also no explanation as to why it took the Applicant up to 4th December, 2024 to file the application for extension of time, noting that the time within which to file the appeal expired on or about the 15th November, 2024. 23. Thus then, there are no reasons presented as to why the appeal was not filed within the period provided for by statute and further the delay by a lengthy period of about one and a half months to present the application for extension of time is not only inordinate, in the circumstances, but also remains unexplained therefore inexcusable. 24. From the foregoing, I am not persuaded that the Applicant has met the prerequisites for leave to appeal out of time. Thus then, the court cannot judiciously exercise discretion to allow the Applicant appeal out of time. 25. Notwithstanding my findings above that the Applicant has not persuaded me to grant leave to appeal out of time, I think that it is important, in the circumstances of this case, to determine the third issue, which is whether the Applicant has (otherwise) met the prerequisites for the grant of an order of stay of execution pending the determination of the intended appeal. 26. The provision of the law that is applicable in an application for stay pending appeal is Order 42 Rule 6 of the Civil Procedure Rules. Let us read the said provision: 42(6) No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or (1). order appealed from except appeal case of 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 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). (3). 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. Notwithstanding anything contained in subrule (2), the court shall have power, without formal application made, to order upon such terms as it may deem fit, a stay of execution pending the hearing of a formal application. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16730/eng@2025-10-30 4

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(4). ……………………………… (5). An application for stay of execution may be made informally immediately following the delivery of judgment or ruling. (6). Notwithstanding anything contained in subrule (1) of this rule the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with. 27. The principles governing stay of execution pending appeal, as provided for under the above provisions of the law are well settled. The Applicant must demonstrate that substantial loss would result in the event that stay is not granted; the Applicant must demonstrate that the appeal will be rendered nugatory if stay is not granted; the Applicant must furnish security for the performance of the decree in the event that the appeal is ultimately dismissed; the Applicant must move the court without unreasonable delay. 28. I will proceed to consider the above conditions seriatim. 29. With regard to substantial loss and the appeal being rendered nugatory, the position prior to this court granting a temporary stay of execution is that the decree has already been realized and the only outstanding issue is costs, which were agreed upon. The stay that is sought, as I understand the matter, is against execution on costs. 30. The Applicant has not explained the substantial loss that would result if the Respondent is to proceed with execution on costs; and that the appeal may be rendered nugatory. The Applicant must demonstrate what specific loss or prejudice will occur if execution (on costs) proceeds before the intended appeal is determined. 31. In Kenya Shell Ltd v Kibiru [1986] KLR 410 the Court of Appeal affirmed that substantial loss is the cornerstone for stay pending appeal. The court went ahead to state that where an Applicant fails to show how he would suffer substantial loss, such that a stay should be granted. 32. In respect of the condition requiring that the Appellant furnishes security for the performance of the decree, the Appellants state that they are ready and willing to comply with the conditions that the court may issue attendant to the order for stay of execution. However, this ground automatically falls off the way as I have already found that no impending substantial loss has been demonstrated, further noting that performance of the decree is complete save for payment of costs. 33. Finally, it should be recalled that the costs of Ksh.150,000/- were agreed on by consent. That to me is indicative that the Applicant, who asked for and was granted 7 days stay of execution before the trial court bound himself to pay the same within that period. Notably, that happened after there was compliance with the main relief in the decree. 34. In the case of Flora N. Wasike v Destimo Wamboko [1988] eKLR the Court of Appeal held that a consent entered into by agreement of the parties has the effect of a contract between the parties. 35. The court further held that because of that contractual character, a consent can only be set aside (or varied) on the same grounds as would justify rescinding or setting aside a contract, such as: fraud, misrepresentation, mistake; or duress, undue influence; or where consent was given without knowledge of sufficient material facts or in ignorance; or an agreement contrary to public policy or the policy of the court. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16730/eng@2025-10-30 5

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36. As long as the consent remains undisturbed, the Applicant is bound by its terms and obligated to make good payment of the costs agreed upon. 37. From my foregoing analysis, I reach the result that the Applicant’s application has no merit and must fail. I proceed to dismiss it with costs, which I take the liberty of assessing at Ksh.5,000/-. 38. This file is hereby closed. DELIVERED (VIRTUALLY), DATED AND SIGNED THIS 30TH DAY OF OCTOBER, 2025. JOE M. OMIDO JUDGE FOr The Applicant: Mr. Oriema For Mr. Ouma. For The Repondent: Mr. Ombiro. Court Assistant: Mr. Ngoge & Mr. Juma. Mr. Oriema: I seek time to appraise ourselves with the ruling. I pray for 30 days stay. Mr. Ombiro: I leave it to court. Court: Stay of execution is granted for 7 days. A formal application for stay to be filed, if need be. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16730/eng@2025-10-30 6

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