John Waweru Kimani v Isaac Maina Mwangi & 1 other

intends to appeal and rely on a number of grounds of appeal as per Memorandum of Appeal filed herein. 3. By Affidavit in Support of the Motion, the Applicant’s Advocate ( Audrey Mwira) inter alia avers that the the delay to bring this Application was occasioned by quitting of employment by the Claims Manager of the Applicant’s Insurer which is Counsel’s instructing client. Necessary instructions to Counsel were only given after stay of execution period the court gave had lapsed. It is further contended that the Respondents’ income is either unknown, insufficient or undisclosed income and, therefore, the Applicant could be exposed to substantial loss and the intended appeal rendered nugatory if this application is not allowed. 4. The Applicant expresses willingness and readiness to deposit required security for costs in the form of the entire decretal sum that may ultimately be binding upon him, in joint interest-earning bank account in the names of the Advocates for the Parties. 5. Through affidavit evidence in reply, the 1st Respondent opposes the Motion contending among other averments that it is misconceived, incompetent, bad in law and otherwise an abuse of the court processs. The Applicant is said to be guilty of inordinate and inexcusable delay of around 1 ½ months to bring the Application. The Applicant is said to have failed to demonstrate substantial loss he would suffer if the Application is not granted. It is proposed to deposit half of the decretal sum and the half paid out to him. 6. Only learned Counsel for the 1st Respondent filed submissions which the court has perused against the application, the rival affidavits and the record. 7. Section 79 G of the Civill Procedure Act provides 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’’. 8. Furthermore, case law in Edith Gichungu V. Stephen Njagi Thoithi (2014) eKLR lists the following factors among others to be considered before determining whether or not to grant leave to file an Appeal out time; “ …… 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 ….’’ . 9. The court is also enjoined to consider the overriding objectives of civil litigation to ensure a just, expeditious, proportionate, and affordable resolution of disputes ( see case law in [Kamlesh Mansukhalal Damki Patni V. Director of Public Prosecutions & 3 Others (2015) eKLR )}. 10. The court further has the duty to consider the competing interests of the parties to such an Application with an eye to ensuring that an Appeal is not rendered nugatory and the Respondent(s) also gets consideration having obtained a valid Judgement . In Daniel Chebutul Rotich & 2 Others V. Emirates Airlines , Civil Case No. 368 of 2001, substantial loss was explained as hereunder; “ subsatantial loss is a relative term and more often than not can be assessed by the totality of the consequences which an applicant is likely to suffer if stay of execution is not granted and the applicant is therefore forced to pay the decretal sum’’. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18190/eng@2025-11-26 2

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11. In Tropical Commodities Ltd. International (in liquidation) (2004) 2 EA 331 my brother (Ogolla J )explained that substantial loss is a qualitative concept. It refers to;“ any loss, great or small, that is of real worth or value as distinguished from a loss without value or a loss that is merely nominal.” 12. The question of “substantial loss’’ is the cornerstone of the court’s jurisdiction and discretion to grant an order for stay of execution pending appeal ( see case law in Rhoda Mukuma V. John Abuoga ( 1988) KLR ). 13. The issues for determination , therefore, are whether the Applicant has shown that he deserves exercise of the court’s discretion in his favour to enlarge time to file appeal aganst the impugned Judgement, and obtain an order for stay of execution pending appeal. 14. In Nicholas Kiptoo Arap Korir Salat V. Independent Electoral & Boundaries Commission & 7 Others ( 2015) eKLR the following principles are laid down as guiding the court’s discretion whether or not to enlarge time; a. ‘’Extension of time is not a right but an equitable remedy only available to a deserving party. b. Aparty seeking extension has the burden of laying the basis to the satisfaction of the court. c. The court’s discretion depends on the circumstances of each case. d. The question of any prejudice that may be suffered by the respondent should be taken ino account. And e. The court should also consider whether the application was brought without undue delay.’’ 15. In Mohsen Ali & Another v. Priscillah Boit & Another, E& LC Case No. 2000 of 2012 (2014) eKLR the court explained ‘’unreasonable delay’’ as dependent on the surrounding circumstances of each case. 16. The Applicant has not satisfactorily explained the long delay of 1 ½ months or thereabouts to bring this Application . The Applicant or the Counsel’s instructing client have not themselves sworn an affidavits to explain in relevant detail why this long period was taken to seek leave to appeal out of time. An Advocate’s evidence from the bar is not sufficient to discharge this burden as it is only the Applicant that is privy to information or circumstances that allegedly caused the delay. This delay is prejudicial to the Respondents who are unnecessarily being kept off the fruits of her Judgement. 17. The Applicant does not therefore deserve extension of time to lodge Appeal. 18. Regarding the prayer for stay of execution, Order 42 rule 6 (1) (2) of the Civil Procedure Rules 2010 governs disposal of an application such as before me for stay of execution pending appeal. The legal provisions stipulate that such order may not be granted;“ a. unless 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.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18190/eng@2025-11-26 3

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19. The Applicant contends that he brought the Motion without unreasonable delay. It is should, however, be noted that even delay of one day, if unexplained, is bad enough. The Applicant has not satisfactorily explained the long delay to bring this application for the reasons given hereinabove. 20. In the circumstances, the delay is found to be unreasonable and inexcusable, therefore this legal condition has not been satisfied. 21. Provision of security for costs is a crucial condition precedent to grant of an order of stay of execution pending hearing and determination of an appeal.This is a mandatory legal requirement that has to be complied with . The court has power to determine the appropriate security for costs but the Applicant must first express willingness and readiness to offer security. 22. In John Odungo vs Joyce Irungu Muhatia [2014] eKLR the court observed that an Applicant does not have to actually make a deposit of security to obtain an order of stay of execution. It suffices if he shows “preparedness as well as readiness to provide security should one be called upon to do so”. 23. The Applicant has satisfied the requirement for offer security for costs, having expressed willingness and readiness to comply. 24. Determination of the Application turns on the question of substantial loss, if any, the Applicants might suffer if stay of execution is not ordered. The case of Nyatera vs Nyakundi (Civil Appeal E033 of 2022) [2023]KEHC 3086 KLR) (16 March 2023) (Ruling) is relevant for the proposition that the Applicant ought to show the manner in which his appeal would be rendered nugatoty if stay of execution is not ordered.. The court opined in the case that it is not enough to say that because the Respondent intends to proceed with execution, he should be stopped because of the appeal. The court is therefore required to tread a delicate balance of the parties’ interests. As it is now trite, this is the cornerstone of the court’s discretion to grant or refuse stay of execution pending appeal. The onus is on the Appellant/ Applicant to show on a balance of probability that the Respondent would not be able to refund the decretal sum if paid out and the appeal eventually succeeds. 25. In RWW vs EKW [2019] eKLR and Re Global Tours & Travel Ltd HCWC No. 43 of 2000In Milimani HCMCA No. 1561 of 2007, Century Oil Trading Company Ltd vs Kenya Shell Ltd, this court again explained that;“ Where execution of a money decree is sought to be stayed, in considering whether the applicant will suffer substantial loss, the financial position of the applicant and that of the respondent becomes an issue. The court cannot shut its eyes when, it appears the possibility is doubtful of the respondent refunding the decretal sum in the event that the applicant is successful in his appeal. The court has to balance the interest of the applicant who is seeking 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.” 26. In Shell Ltd V. Kibiru & Another (1986) KLR 410 it was famously postulated that ‘’ substantial loss in its various forms is the cornerstone of the court’s jurisdiction to grant stay pending appeal. That is what has to be prevented. Therefore, without this evidence, it is difficult to see why the Respondents should be kept out of their money.’’ https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18190/eng@2025-11-26 4

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27. Regarding the burden of proof, the Court of Appeal held in National Industry Credit Limited vs Aquinas Francis Wasike & Another [2006] eKLR that;“ once an applicant expresses a reasonable fact that a respondent would be unable to pay back the decretal sum, the evidential burden must then shift to the respondent to show whatever resources he has since that is a matter which is peculiarly within his knowledge.” 28. The legal position elucidated in the cited Case Law has been reiterated in several recent cases including Matata & Another vs Rono & Another (Civil Appeal No. E034 of 2024) [2024] KEHC 2799 (KLR) (19 March 2024) (Ruling) and Muinde Mulatya & Another ( 2021) eKLR and Kenya Commercial Bank Limited V. Sun City Properties Limited 7 & 5 Others ( 2012) eKLR. 29. Based on the affidavit evidence of the parties neither of them has stated their financial position. The Applicant who shoulders the burden of proof have in particular not made out a prima facie case of the Respondents’ inability to pay back any decretal sum to warrant the latter to debunk the claim. 30. In the particular circumstances of this case, therefore, the Applicant has not quite satisfied the key substantial loss test as well as the requirement to institute such an Application without inordinate or unreasonable delay. The onus was on theApplicant to meet all the conditions stipulated hereinabove. 31. Balancing the interests of the parties, however, and so as not to deny the Applicant a chance to challenge the lower court’s decision, I shall allow the Application as follows; 32. a. Leave to appeal is granted to the Applicant. b. Stay of execution of the lower court’s decree pending hearing and determination of the intended Appeal is allowed on condition that half of the decretal sum is paid out to the Respondents within 30 days from the date hereof, and the balance deposited into court within the same period. c. In default of compliance with Order (b) above, the order for stay of execution shall automatically stand dismissed with the result that the Respondents will be at liberty to levy execution for the entire decretal sum. d. The Respondents get the costs of the Application. Ruling accordingly. RULING DELIVERED VIRTUALLY THIS 26TH DAY OF NOVEMBER , 2025 IN THE PRESENCE OF: J. M. NANG’EA, JUDGE. The Advocate for the Applicant, Ms Mwira . The Advocate for the Respondent, Mr Maina Court Assistant, Jeniffer J. M. NANG’EA, JUDGE. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18190/eng@2025-11-26 5

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