High Court 19162 of 2025

7. In that ruling the applicant had filed a similar application and the learned magistrate stated that he had considered the application and the response and had noted that on the 14th of February 2023 The applicant had filed a notice of motion seeking to set aside proceedings and the exparte judgment entered on 24th of June 2015 but that application was heard and determined and was allowed on the condition that the judgment was set aside and the defendant would pay throw away costs of Kenya shillings 50,000. That by their time the matter came for pretrial on the 9th of October 2023 the applicant had not paid the throw away costs of 50,000 the stay orders lapsed and the judgment was reinstated. The application dated 19th of October 2023 was brought to review or vary the orders reinstating the judgment. The trial court was of the view that the applicant having failed to pay the throw away costs of 50,000 he was in breach of the court order, the application was found as lacking merit and was dismissed on the 18th of March 2024. The application is opposed through the replying affidavit 8. Elizabeth Ndulu Kasili. She deponed the accident herein occurred on the 8th of September 2010 and the applicant was properly served with STEA the 27th of February 2013 which he personally signed and acknowledged in her presence for he is a person known to her and she is the one who took the process server to serve him; the judgment in the primary suit was delivered on 24th of June 2015 but he refused to pay and on 4th of February 2023 auctioneers proclaimed him for non-payment of the decretal sum of 1,787, 300 ;that the applicant filed an application on 14th February 2023 seeking stay of execution and setting aside of the judgment; the court delivered its ruling on 31st July 2023 allowing the application on condition that he paid thrown our way costs of 50,000, and to file and serve his defense in 30 days. 9. That the ruling was made in the presence of both advocates and she and the applicant were present. 10. That the applicant did not comply with the conditions set by the court and the judgment was reinstated and the respondent was allowed to proceed with execution. 11. That the Applicant changed advocates and filed another notice of motion on 23rd October 2023 seeking to set aside the orders of 31st July 2023, the application was again dismissed. That no appeal has been filed against the orders of 31st July 2023 . 12. That the memorandum of appeal does not raise any substantial issue on the ruling of 18th March 2023; the application has been brought after an unreasonable delay of four months since the 18th March 2024 ;that the ruling was posted on the portal on the 18th of March 2023; That the applicant paid for it on the 5th of April 2024 but only moved when the when there was a proclamation for him to pay the decretal sum; that the same be dismissed. 13. The applicant filed the supplementary affidavit and the point that the delay of four months was neither inordinate nor intentional but it was occasioned by the delay in accessing the court ruling which required the assistance of the executive officer of the court as none has been uploaded to date that the applicant is not in any financial position to deposit the decretal sum as a precondition for the order of stay 14. The applicant has filed written submissions and sets out the issue for determination as to whether he has satisfied the conditions for stay over execution pending appeal. 15. On substantial loss he submits that he’s a retired teacher Sikh and elderly citizen of limited means and the ruling by the lower court allowing the first respondent to commence execution would causeway irreversible hardship and deny him the constitutional right of appeal That he would suffer irreparable and disproportionate loss. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19162/eng@2025-12-22 2

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16. He relies on Kenya Shell Limited versus Benjamin Karuga Kigibu and another. 17. On delay he submits that a certified copy of the ruling was only available on the 12th of August 2024 and that the follow up saw him attend the registry physically where the Registry informed him that the file was still in chambers until the executive officer intervened; That he is willing to comply with any conditions or terms including provision of security as may be directed by the court though the application is primarily grounded on preserving the right of appeal citing section 95 of the civil procedure act and order 50 rule 6 of the civil procedure rules he urges the court to allow his request for enlargement of time; That the failure to file the memorandum of appeal was due to systemic failure of the E filing system during a period of national transition to digital court infrastructure I did not see any submissions by the respondent. 18. I have carefully considered the application before me and the issue for determination is whether the applicant has satisfied the court that he has complied with the provisions of order 42 rule 6. 19. I have looked at the CTS for Makindu Law Courts MCCC 91 of 2011 and I have confirmed that no ruling was uploaded on the 18th of March 2025. I have also seen the letters by counsel for the applicant dated 25th April 2025 seeking the certified copy of the ruling; on the issue of delay , it is evident that the system supports the applicant’s version of events. 20. On substantial loss the applicant has stated that he is a retired teacher a fact not disputed, who is sickly would suffer loss if execution takes place. However, on the other hand the respondent does not demonstrate that she would be able to refund the money if paid. 21. On security, the applicant has indicated that he is willing to deposit any reasonable security that the court may direct except the deposit of the entire decretal sum. 22. The respondent’s position is that the applicant is only doing this to delay the payment of what is rightfully due to her. 23. On delay, it is the onus on the applicant to explain the same to the satisfaction of the court He has explained that it was due to the delay in receiving the certified ruling and the system not being in transition. These are reasonable grounds. . I am satisfied that the delay was not intended but was caused by circumstances as explained by the applicant. 24. On substantial loss , the applicant has explained how the execution would affect him before the appeal is heard. 25. The other issues raised in the matter are issues to be determined during the appeal. I therefor allow the application on the following conditions: 26. There be stay of execution pending the earing of the appeal on condition that the applicant deposits 25% of the decretal sum in court within 45 days hereof as security for the performance of the decree.in default the stay will lapse 27. The memorandum of appeal be filed and serve within 7days hereof in default the leave will expire. The Record of appeal be filed within 45 days hereof. 28. A date de assigned foe mention before the DR for compliance on the Record of Appeal Costs to abide the outcome of the appeal. DATED, SIGNED AND DELIVERED VIA CTS ON THE 22ND DECEMBER 2025 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19162/eng@2025-12-22 3

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MUMBUA T MATHEKA JUDGE CA Chrispol https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19162/eng@2025-12-22 4

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