Jacob Otieno Kidiga v Susan Awuor Okumu

3. The Applicant further states that the delay to file the appeal within time was occasioned by the fact that the clerk who was supposed to file the same left employment from the Applicant’s Advocates’ offices, which fact was brought to the attention of the Advocates well after time had expired. 4. The Applicant further proffers the ground that if the orders sought are not granted, he stands to suffer immense prejudice as execution will proceed and the appeal will be rendered nugatory. 5. The Applicant states that he is ready and willing to comply with the conditions that this court may attach to the order of stay of execution, if the same is granted. 6. The application is supported by the affidavit of Joan Turgutt, Advocate sworn on 12th August, 2025 in which the said deponent restates and expounds on the above grounds. 7. The application is opposed and to that end the Respondent filed a replying affidavit sworn on 10th November, 2025 by her Counsel Dorcas Akinyi Oluoch, Advocate. 8. The basis upon which the application is opposed is that the Applicant has not adequately explained the delay and the reasons as to why the appeal was not filed timeously and the delay, noting that judgement in the lower court was entered on 13th May, 2025 and that the application subject of which this ruling is made was filed on 18th August, 2025, more than three months after the expiry of the time within which to appeal. 9. The Respondent further states that when the Applicant filed the application dated 12th August, 2025 under certificate of urgency, the court granted stay of execution on an interim basis on condition that the Applicant deposits in court security of Ksh.1,152,852/- within 30 days in default of which the order for stay pending appeal would stand automatically vacated. 10. Indeed, I issued the said order on the strength of the deposition that was made in paragraph 9 of the supporting affidavit in which the Applicant’s Advocate stated on oath that: “ 9. That the Appellant is ready, willing and able to deposit Ksh.1,152,852/- in a joint interest earning account in the names of advocates for the parties herein as security for stay of execution pending the hearing and determination of the intended appeal.” 11. The Respondent urges that as the Applicant failed to comply with the condition to deposit the said decretal amount, he cannot now be heard to seek for the same prayer of stay pending appeal. 12. From the affidavits and rival positions summarized above, the following issues arise for determination: a. Whether the Applicant has provided a sufficient and satisfactory explanation for the delay in filing the intended appeal, and hence whether leave to appeal out of time should be granted. b. Whether the Applicant has satisfied the conditions for the grant of stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules. c. Who should bear the costs of the application. 13. The first issue is whether the Applicant has provided a sufficient and satisfactory explanation for the delay and whether leave to appeal out of time should be granted. 14. The impugned judgment was delivered on 13th May 2025, whereas the present application — although dated 12th August 2025 — was filed on 18th August 2025, well outside the 30-day statutory period for filing an appeal. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19026/eng@2025-11-20 2

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15. The delay therefore spans approximately three months, which calls for a clear and cogent explanation if this Court is to exercise its discretion to enlarge time. 16. The Applicant attributes the delay to the departure of a clerk from the Applicant’s Advocates’ office, asserting that the intended appeal was not filed in time because the position of the said clerk was not promptly regularised and the oversight only came to the Advocates’ attention after time had lapsed. 17. This explanation is not supported by any documentary evidence, nor is there any material demonstrating efforts made by counsel to follow up the matter during the statutory period. 18. The Court notes that office-administrative challenges must be demonstrated to be unavoidable, inadvertent, and promptly addressed; otherwise, they cannot form the basis for extension of time. 19. The Respondent disputes the sufficiency of the explanation and correctly observes that the Applicant took no prompt steps between May and mid-August 2025 to safeguard his appellate rights. The Court agrees that the explanation offered does not meet the threshold of a plausible, satisfactory or reasonable cause for delay. 20. While the court recognises that the discretion to extend time must be exercised judiciously, taking into account the length of delay, reasons for delay, the arguability of the intended appeal and the level of prejudice to be suffered by the Respondent, the delay in this case remains unexplained to the Court’s satisfaction. 21. In the circumstances, the Court finds that the Applicant has not placed before it a sufficient and satisfactory explanation warranting the exercise of discretion in his favour. Consequently, the prayer for leave to file an appeal out of time fails. 22. The second issue is whether the Applicant has satisfied the conditions for stay of execution pending appeal. 23. The Applicant seeks stay of execution pending the intended (but as yet unfiled) appeal, relying on Order 42 Rule 6 of the Civil Procedure Rules. The essential requirements — substantial loss, timeliness and the provision of security — must be satisfied conjunctively. 24. On substantial loss, the Applicant contends that unless stay is granted, execution will proceed and the intended appeal will be rendered nugatory. However, beyond this general assertion, no evidence has been placed before the Court to demonstrate that the Respondent would be unable to refund the decretal sum if the appeal ultimately succeeded. 25. With respect to timeliness, the application was filed more than three months after judgment. While the court notes the explanation offered, it has already determined that the delay has not been satisfactorily justified. An unexplained or insufficiently explained delay undermines the timeliness requirement under Order 42 Rule 6(2). 26. Regarding security, the court recalls that upon the filing of the application under certificate of urgency, an interim stay was on18th August, 2025 granted on condition that the Applicant deposits in court the entire decretal amount of Ksh.1,152,852/- within 30 days. The Applicant, despite giving a sworn commitment on its ability to do so, failed to comply. 27. The failure to honour a condition voluntarily undertaken — and imposed as a prerequisite for interim relief — militates strongly against the grant of further discretionary relief. 28. Given the Applicant’s failure to: satisfactorily explain the delay, provide evidence of substantial loss and comply with the security directive earlier issued by the court, this court finds that the mandatory https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19026/eng@2025-11-20 3

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requirements under Order 42 Rule 6 have not been met. The prayer for stay of execution pending appeal is therefore declined. 29. The third issue is a determination as to costs. Costs ordinarily follow the event as provided for under Section 27 of the Civil Procedure Act. The Respondent has been compelled to oppose an application devoid of merit, and nothing has been placed before this court to justify departure from the general rule. Accordingly, costs shall be borne by the Applicant. 30. For the foregoing reasons:The prayer for leave to file an appeal out of time is dismissed.The prayer for stay of execution pending appeal is declined.Ultimately, the application dated 12th August, 2025 is hereby dismissed as the same lacks merit. 31. The costs of the application are awarded to the Respondent, which I assess at Ksh.3,ooo/- and which shall form part of the decree. 32. This file is hereby closed. DELIVERED (VIRTUALLY), DATED & SIGNED THIS 20TH OF NOVEMBER, 2025. JOE M. OMIDO JUDGE For Appellant: Ms. Turgutt. For Respondent: Ms. Oluoch. Court Assistants: Mr. Ngoge & Mr. Juma. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19026/eng@2025-11-20 4

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