Jared Nyakundi Mogaka v Sarah Nyabonyi Mogaka

would be uploaded on the Court Tracking System (CTS). The judgment, however, was only uploaded on 20th June 2025, by which time the statutory period for lodging an appeal was about to lapse. 4. The Applicant blames the delay in filing the appeal on the delay in uploading the judgment on the CTS, which he says was beyond his control. He avers that the intended appeal is arguable and that unless stay is granted, execution will render the appeal nugatory. He expresses willingness to deposit the entire decretal amount in a joint interest-earning account as security. 5. The Respondent opposes the application, terming it an afterthought intended to delay enjoyment of a valid judgment. She maintains that the Applicant’s counsel was aware of the delivery date and could have perused the court file. She further argues that the Applicant has not proved substantial loss, the decree being a modest sum. She asserts that she is a businesswoman capable of refunding any monies if the appeal succeeds. Submissions 6. The Applicant relied on Edith Gichugu Koine v Stephen Njagi Thoithi [2014] eKLR and G.N. Muema t/a Mt View Maternity & Nursing Home v Miriam Maalim Bishar & Another [2018] eKLR. He argued that the delay of about one month was not inordinate, having been occasioned by the court’s failure to upload the judgment in time, and that the Respondent’s means are unknown. 7. The Respondent relied on Omar Shurie v Marian Rashe Yafar [2020] eKLR, Samvir Trustee Ltd v Guardian Bank Ltd [1997] HCCC 795, Victory Construction v BM (Minor) [2019] eKLR, Mwaura Karuga t/a Limit Enterprises v Kenya Bus Services Ltd & 4 Others [2015] eKLR, and Kenya Shell Ltd v Benjamin Karuga Kibiru [1986] KLR 410, contending that the application does not meet the threshold for stay or extension of time, and in the alternative, that half the decretal sum be released to her and the balance deposited in a joint account. Issues for determination 8. I have considered the application in light of the affidavits and submission on record and the issues that arise for determination are: 1. Whether the applicant has shown sufficient cause for extension of time to file an appeal out of time; and 2. Whether the applicant has satisfied the conditions for grant of stay of execution pending appeal. Analysis and Determination (1) Leave to Appeal Out of Time 9. Under Section 79G of the Civil Procedure Act, appeals from subordinate courts must be filed within 30 days of the decree or order appealed against, but the Court may admit an appeal out of time if satisfied that sufficient cause is shown. 10. In Omar Shurie v Marian Rashe Yafar (supra), the Court of Appeal restated that the Court considers the length of delay, reason for delay, chances of success, and prejudice to the respondent. 11. The impugned judgment was delivered on 27th May 2025, and this application filed on 28th June 2025. The explanation given, that the judgment was uploaded on 20th June 2025 is reasonable and has not been controverted. The one month’s delay is short, and there is no evidence of indolence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18525/eng@2025-11-20 2

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12. The draft memorandum of appeal raises issues on the quantum of damages, which are arguable. The Respondent has not demonstrated that she will suffer any prejudice if leave is granted. I am satisfied that sufficient cause has been demonstrated to justify extension of time. (2) Stay of Execution Pending Appeal 13. The principles under Order 42 Rule 6(2) require that: 1. The applicant must demonstrate substantial loss 2. The application must be made without unreasonable delay 3. The applicant must provide security for due performance. (a) Substantial Loss 14. In Kenya Shell Ltd v Benjamin Karuga Kibiru (supra), the Court of Appeal stated that substantial loss is the cornerstone for granting stay. The applicant must show that the appeal will be rendered nugatory if stay is denied. 15. The Applicant avers that the Respondent’s financial capacity is unknown. The Respondent, though asserting that she is a businesswoman, did not provide proof of her means. Nonetheless, the decree herein is KES. 253,650, which is a moderate sum. In Victory Construction v BM (Minor) (supra), the Court held that where the decretal amount is not colossal, the Court should balance the competing interests rather than bar the decree-holder from enjoying part of her judgment. 16. From the draft memorandum of appeal, it is evident that liability is not contested, the intended appeal being limited to the issue of quantum. In that context, the Applicant’s apprehension that payment of the entire decretal sum may render the appeal nugatory, though unrebutted, must be balanced against the Respondent’s entitlement to the fruits of a judgment on undisputed liability. (b) 17. Delay As earlier observed at paragraph 11 of this ruling, the application was lodged without undue delay, having been filed immediately upon the Applicant’s access to the judgment. (c) Security 18. In Mwaura Karuga t/a Limit Enterprises v Kenya Bus Services Ltd & 4 Others (supra), the court observed that the provision of security is a mandatory condition. 19. As held in Samvir Trustee Ltd v Guardian Bank Ltd (supra), the court must weigh the right of the decree-holder to enjoy the fruits of judgment against the appellant’s right of appeal. In this case, releasing part of the decretal sum to the respondent while securing the rest achieves that balance. The Applicant having offered to deposit the decretal sum in a joint interest-earning account, I find the proposal reasonable, subject to the modification that part of the sum be released to the Respondent to enable her partial enjoyment of the judgment pending appeal. Conclusion 20. In the result, the Notice of Motion dated 28th June 2025 is allowed on the following terms: 1. Leave to appeal out of time is hereby granted 2. The memorandum of appeal shall be filed within seven (7) days of this ruling. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18525/eng@2025-11-20 3

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3. Stay of execution of the judgment and decree in Keroka SPMCC E065 of 2022 is hereby granted pending hearing and determination of the intended appeal, on the following conditions: a) The Applicant shall within fourteen (14) days pay half (½) of the decretal sum to the Respondent b) The remaining half (½) shall be deposited with the trial court within the same period 4. In default of compliance with Order 3 above, the stay shall automatically lapse. 5. Costs of this application shall abide the outcome of the intended appeal. 6. This being a miscellaneous file, it is hereby closed DELIVERED AT NYAMIRA THIS 20TH DAY OF NOVEMBER 2025 WAMAE.T. W. CHERERE JUDGE Appearances Court Assistant - Hilda For Appellant - Ms. Ongwacho for KRK Advocates LLP For Respondent - Mr. Kyalo for Fred Mwihia & Co. Advocates https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18525/eng@2025-11-20 4

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