Kenya Power and Lighting Company Limited v Patrick Omare Barongo

Applicant’s Case 3. The Applicant observed that while the ruling of the trial court was delivered on 7th May 2025, the present application was filed on 20th June 2025, less than two months later. It stated that the delay in filing the appeal was occasioned by internal corporate procedures and approvals necessary before a decision to appeal could be made. The Applicant urges the Court to consider that in a large public institution, such processes are inevitable and outside the immediate control of its officers. 4. The Applicant relied on the provisions of Order 50 Rule 5 of the Civil Procedure Rules for the argument that the Court has wide discretionary power to enlarge time, and that such discretion ought to be exercised judiciously and on reasonable grounds. Reference was made to the decisions in Mwangi vs. Kenya Airways Ltd [2003] KLR, and Samuel Mwaura Muthumbi vs. Josephine Wanjiru Ngugi & Another [2018] eKLR, where the court held that in determining whether to extend time, the court must consider: i. The period and reason for the delay; ii. The arguability of the appeal; and iii. The degree of prejudice likely to be suffered by the respondent. 5. The Applicant further argues that the delay is reasonable, given that the ruling involved multiple files (28 in total) and required comprehensive internal review before a decision could be made. It maintains that its draft Memorandum of Appeal raises weighty and arguable issues, particularly that the trial court erred in law and in fact by disregarding a prior High Court ruling which had directed the Respondent to file a fresh bill of costs excluding unlawful items. 6. On the issue of stay of execution, the Applicant relies on Order 42 Rule 6 of the Civil Procedure Rules and submits that it meets the conditions for stay, namely: - 7. i. The appeal is arguable and not frivolous; ii. The Applicant stands to suffer substantial loss if stay is not granted, as recovery of the decretal sum from the Respondent would be difficult if the appeal succeeds; and iii. The application was made without unreasonable delay. The Applicant asserts that the decretal sum was paid under duress and threat of attachment, as demonstrated by the annexed Warrants of Attachment and Proclamation. It argues that payment made to avert disruption of essential public services does not render the appeal moot, and cites Kenya Shell Ltd vs. Benjamin Karuga Kibiru [1986] eKLR, where the Court of Appeal held: “ Even if payment has been made, the right to challenge the same remains. A party cannot be faulted for complying with a decree to avoid hardship and then pursuing their right of appeal.” 8. The Applicant prays that the Court allows the application in the interest of justice, so as to enable it to ventilate its appeal on the merits. Respondent’s Case 9. The Respondent opposes the application through written submissions dated July 2025, terming it frivolous, misconceived, and an abuse of court process. It argues that the ruling sought to be appealed against was delivered in the presence of counsel for the Applicant, who took no steps to appeal within https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19383/eng@2025-10-30 2

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time. It is the Respondent’s case that the alleged internal deliberations are hollow, unsubstantiated, and self-serving, with no evidence provided on when such deliberations began or ended. 10. The Respondent relies on the Supreme Court’s decision in Kenya Revenue Authority & 2 Others vs. Mount Kenya Bottlers & 4 Others (Application 12 (E021) of 2021) [2022] KESC 3 (KLR), which sets out guiding principles for extension of time as follows: i. Extension of time is not a right but an equitable remedy available only to a deserving party; ii. The burden lies on the applicant to satisfy the court that sufficient cause exists; iii. Discretion is to be exercised on a case-by-case basis; and iv. The delay must be reasonably explained and not prejudicial to the other party. 11. The Respondent asserts that the Applicant has failed to meet these principles, as it has not given any plausible explanation for the delay. It further contends that the decree has been fully satisfied and that there is no executable decree capable of being stayed, rendering the prayer for stay spent and academic. 12. The Respondent also argues that the concept of paying “under duress” is foreign to enforcement of lawful decrees, noting that once a court issues judgment, parties are bound to comply with it unless it is set aside or stayed. The Respondent added that the Applicant’s attempt to challenge payment after voluntarily settling the decretal amount is an afterthought and a misuse of judicial process. Analysis and Determination 13. Having considered the application, affidavits, rival submissions, and authorities cited, I find that the issues for determination are: a. Whether the Applicant has shown sufficient cause for extension of time to appeal out of time; b. Whether the Applicant is entitled to an order of stay of execution; and c. Who should bear the costs of this application. 1. Extension of Time 14. The jurisdiction to extend time for filing an appeal is provided for under Section 79G of the Civil Procedure Act which stipulates as follows: 79G. Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order: Provided 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. 15. In Thuita Mwangi vs. Kenya Airways [2003] eKLR, the Court of Appeal held as follows on the factors to be considered on an application for extension of time to file an appeal: “ i. The period of delay; ii. The reason for the delay; iii. The arguability of the appeal; https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19383/eng@2025-10-30 3

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iv. The degree of prejudice which could be suffered by the if Respondent the extension is granted; v. The importance of compliance with time limits to the particular litigation or issue; and vi. The effect if any on the administration of justice or public interest if any is involved.” (See also Leo Sila Mutiso vs. Rose Hellen Wangari Mwangi - Civil Application No. Nai. 255 of 1997 [unreported]). 16. The applicable legal principles governing extension of time were also settled in Nicholas Kiptoo Arap Korir Salat vs. IEBC & 7 Others [2014] eKLR, where the Supreme Court held: “ Extension of time is not a right of a party; it is an equitable remedy available to a deserving party at the discretion of the court. The party seeking extension has the burden of laying a satisfactory basis to the court.” 17. Similarly, in KRA vs. Mount Kenya Bottlers (supra), the Court reiterated that extension must be founded on reasonable explanation and absence of prejudice. 18. In this case, I note that the ruling sought to be appealed was delivered on 7th May 2025, while the application for extension of time was filed on 20th June 2025, a delay of approximately six weeks. The explanation given is that the Applicant required time to obtain internal corporate approvals before filing the appeal. While the Court takes judicial notice that institutional decision-making can be slow, the Applicant has not demonstrated, through evidence, when such deliberations commenced and concluded, or why they took over a month. 19. Be that as it may, given the relatively short delay and the constitutional imperative under Article 50(1) to afford every party a fair hearing, I find that the delay is not inordinate and is excusable in the circumstances. 2. Stay of Execution 20. Under Order 42 Rule 6(2) of the Civil Procedure Rules, an applicant seeking orders for stay pending appeal must satisfy the following conditions: i. That substantial loss may result unless stay is granted; ii. That the application has been made without unreasonable delay; and iii. That security has been provided for the due performance of the decree. 21. In the present case, while the Respondent asserts that the decree has been fully satisfied, the Applicant contends that payment was made under threat of attachment and to avoid disruption of public utility services. The Court finds merit in the Applicant’s position that payment made to avert imminent execution does not extinguish the right of appeal. As was stated in Kenya Shell Ltd vs. Benjamin Karuga Kibiru (supra), compliance with a decree to avoid hardship does not bar a party from later challenging it. 22. I further find that the Applicant’s affidavit demonstrates a prima facie arguable appeal, particularly on whether the trial court ignored a prior High Court directive on taxation. The Court is persuaded that https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19383/eng@2025-10-30 4

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there is risk of substantial loss if stay is denied, as recovery from the Respondent may prove difficult should the appeal succeed. 23. I also find that the application was made within a reasonable time, and that the Applicant, being a reputable public utility company, offers a satisfactory guarantee for due performance of the decree. 24. Accordingly, I find that the Applicant has satisfied the requirements of Order 42 Rule 6(2). Conclusion 25. 26. In view of the foregoing analysis, the Court makes the following final orders: a. The Applicant is granted leave to file its appeal out of time against the ruling delivered on 7th May 2025 in Keroka MCMisc. Civil Application No. 3 of 2019. The appeal shall be filed within fourteen (14) days from the date hereof. b. There shall be a stay of execution of the said ruling, decree, and all consequential orders pending hearing and determination of the intended appeal. c. The costs of this application shall abide the outcome of the appeal. Orders accordingly. RULING DATED SIGNED AND DELIVERED VIRTUALLY VIA MICROSOFT TEAMS THIS 30TH DAY OF OCTOBER 2025. W. A. OKWANY JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19383/eng@2025-10-30 5

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