Lee Construction Company Limited & 1 other v Francis Ochanda Nyakundi & 1 other

oppose the Motion through the Replying Affidavit of Clifford Ombachi Ochanda sworn on 04th August 2025 and submissions dated 07th November 2025. 4. The factual background is not contested. Judgment was delivered on 17th June 2025 in the presence of counsel for both parties. The trial court apportioned liability at 70:30 against the Applicants and entered judgment for a net sum of Kes. 1,582,840. 5. An appeal ought to have been filed by 17th July 2025. The Applicants did not file one and now seek extension of time. 6. The Respondents oppose the Motion and contend, inter alia, that since counsel were present during delivery of judgment, the Applicants cannot claim ignorance of the same; that the delay is unexplained and inexcusable; that the intended appeal is devoid of merit; and that the orders sought would unjustly deprive them of the fruits of their judgment. Issues for Determination 7. Having considered the pleadings, I find that the following issues arise for determination: 1. Whether the Applicants have furnished a satisfactory explanation for the delay 2. Whether the intended appeal is arguable 3. Whether the Applicants satisfy the legal threshold for stay of execution pending appeal. 1. Whether the Delay is Satisfactorily Explained 8. Section 79G of the Civil Procedure Act permits a court to admit an appeal out of time where “good and sufficient cause” is shown. The Supreme Court in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR distilled the guiding principles, emphasising that extension of time is a discretionary remedy, to be exercised judiciously and on a case-by-case basis. 9. The delay herein is modest, approximately fourteen days. The explanation advanced is that although counsel attended court on the date set for delivery of judgment, the trial court directed counsel to await upload of the judgment on the Court Tracking System (CTS). The Applicants aver that they diligently monitored the CTS but no judgment was uploaded during the statutory period. CTS printouts exhibited in the application bear this out. It was only on 17th July 2025, upon sending a clerk to the registry, that counsel discovered the typed judgment in the court file. 10. While the coram page of the judgment refiects the presence of counsel, it does not demonstrate that the judgment was availed to counsel, nor does it contradict the unchallenged evidence that the trial court directed counsel to rely on the CTS for delivery. 11. In the absence of proof that counsel received the judgment on 17th June 2025, and in view of the Applicants’ consistent explanation, I am persuaded that their reliance on the CTS, being the courtdirected mode of delivery, was reasonable. 12. The explanation is coherent, credible, and supported by evidence. Applying the principles in Nicholas Salat (supra) and Stanley Kang’ethe Kinyanjui v Tony Ketter & 5 Others [2013] eKLR, I am satisfied that the delay has been satisfactorily explained. 2. Whether the Intended Appeal is Arguable 13. The Draft Memorandum of Appeal raises questions relating to the trial court’s apportionment of liability, evaluation of evidence on negligence, and assessment of damages. An arguable appeal is one https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18524/eng@2025-11-27 2

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that raises even a single bona fide point deserving of judicial consideration; it need not be one that will necessarily succeed. This principle was affirmed in Damji Pragji Mandavia v Sara Lee Household & Body Care [2008] eKLR. 14. The record contains divergent accounts of how the deceased, a pillion passenger, fell from the motorcycle within a construction zone. 15. Whether the learned Magistrate properly evaluated the evidence and applied the appropriate legal principles on apportionment and assessment of damages is a legitimate appellate issue. I am therefore satisfied that the Intended Appeal Is Arguable. 3. Whether Stay of Execution Should be Granted 16. The principles governing stay are set out in Order 42 rule 6 of the Civil Procedure Rules and in the Court of Appeal authorities of Butt v Rent Restriction Tribunal [1979] eKLR, Kenya Shell Ltd v Benjamin Karuga Kibiru & Another [1986] eKLR, and National Industrial Credit Bank Ltd v Aquinas Francis Wasike [2006] eKLR. 17. The decretal sum is Kes. 1,582,840. The Applicants contend that the Respondents’ means are unknown, whereas the Respondents simply assert that they are persons of means, without tendering any documentary proof. 18. Once impecunity is alleged, the evidential burden shifts to the party asserting solvency, as held in Kenya Shell Ltd v Karuga (supra) and NIC Bank Ltd v Wasike (supra). 19. The Respondents have not discharged that burden. In the absence of evidence of ability to refund the decretal sum, the Applicants’ apprehension of substantial loss is well-founded. 20. The request for stay was made promptly. The Applicants also assert that they previously furnished a bank guarantee; however, no such guarantee is exhibited in the Motion, in either supporting affidavit, or in any annexure. The Court therefore cannot treat security as having been furnished, and must impose appropriate security conditions. 21. Balancing the Applicants’ right to appeal with the Respondents’ right to enjoy the fruits of their judgment, and guided by Butt v Rent Restriction Tribunal (supra), I am satisfied that a conditional stay is warranted. Final Orders 22. In the result, the Court makes the following orders: 1. Time within which to lodge an appeal against the judgment delivered on 17th June 2025 in Keroka CMCC No. 122 of 2018 is hereby enlarged. 2. The Appeal shall be filed and served within fourteen (14) days of the date hereof. 3. Pending the hearing and determination of the intended appeal, there shall be a stay of execution of the judgment and decree, on condition that the Applicants deposit Kes. 800,000 with the court within fourteen (14) days from the date hereof. 4. In default of compliance with any of the foregoing conditions, the stay granted herein shall lapse automatically without the need for further order. 5. Costs of the application shall abide by the outcome of the intended appeal. DELIVERED AT NYAMIRA THIS 27TH DAY OF NOVEMBER 2025. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18524/eng@2025-11-27 3

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............................................................ WAMAE. T. W. CHERERE JUDGE Appearances; Court Assistant - Hilda For Applicants - Ms. Kebongo for Nyamurongi & Co. Advocates For Respondents - Mr. Okoth for Seneti Oburu & Co. Advocates https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18524/eng@2025-11-27 4

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