Julius Wanyama v Francis Simiyu Tawayi

court process as no plausible reason has been advanced to explain the delay in lodging the appeal within the limitation period as set under section 79G of the Civil Procedure Act Chapter 21 Laws of Kenya. It is also averred that the memorandum of appeal does not raise any arguable appeal. C. Submissions 5. This application was canvassed by way of written submissions. The Applicant did not file any submission. 6. The Respondent has attacked the applicant’s application herein for being fatally defective as the applicant has moved the court by way of a notice of motion without filing a substantive appeal. Further that the memorandum of appeal raises no arguable grounds of appeal. Further that the applicant has not offered any security wherefore he ought not get stay orders. 7. The Respondent submits that in the event that the court is inclined to enlarge time then and grant stay orders, then it should order the applicant to deposit the entire judgment sum in court as security for due performance of the judgment in the event his appeal fails. D. Analysis and determination 8. Section 79G of the Civil Procedure Act dictates that appeal from the subordinate ought to be filed within 30 days from the date of the judgment or decree save that the High court may upon good cause being shown, extend the limitation period. 9. The applicant herein has faulted the trial court in the delay in supplying him with certified copies of the proceedings and the judgment. I do note that the same were supplied five days before the expiry of the limitation period. The applicant was all along represented by advocates who filed the appeal herein. Advocates are knowledgeable on the law and matters procedure wherefore the filing of the appeal herein out of time connotes negligence on the part of the applicant’s advocates on record. The argument that the applicant’s advocates suddenly realized that they had filed the appeal outside the limitation period does not hold water. 10. The respondent has strenuously resisted this application and has termed it vexatious, frivolous and that it is intended to delay his enjoyment of the fruits of judgment. It is indeed true that any appeal once properly filed is intended to unsettle the impugned decision. Once stay orders are granted then the successfully party has to await the determination of the appeal. The crafters of Order 42 Rule 6 of the Civil Procedure Rules cured the mischief of grant of stay orders by providing that a successfully applicant must approach a court without delay, his appeal must raise arguable grounds of appeal, he must demonstrate that he stands the risk of suffering substantial loss and that he is ready and willing to offer security for the due settlement of the decretal sum in the event of dismissal of his appeal. The amendment of the Civil Procedure Act Chapter 21 Laws of Kenya in 2009 introduced sections 1A an d 1B which enjoins this court to consider the overriding objective of each case (the oxygen principle). Section 3A of the same Act vests this court with inherent powers to make such orders as necessary for advancing the ends of justice. 11. As regards the prayer for enlargement of time, this court is bound by the case of Nicholas Kiptoo Arap Korir Salat Vs IEBC & 7 Others (2014) eKLR where the Supreme court set out the principles for enlargement of time as follows: a. Extension of time was not a right of a party. It was an equitable remedy that was only available to a deserving party at the discretion of the court; https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3560/eng@2026-01-29 2

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b. A party who sought extension of time had the burden of laying a basis for it to the satisfaction of the court; c. Whether the court ought to exercise the discretion to extend time, was a consideration to be made on a case-to-case basis; d. Whether there was a reasonable reason for the delay, which ought to be explained to the satisfaction of the court; e. Whether there would be any prejudice suffered by the respondents if the extension was granted; f. Whether the application had been brought without undue delay; and; g. Whether in certain cases, like election petitions, public interest ought to be a consideration for extending time. 12. The application herein was filed without delay and whereas the applicant attributed his delay in complying with the 30 days limitation period set out under section 79G of the Civil Procedure Act to the trial court’s failure to supply him with certified copies of the proceedings and judgment, the real delay occasioned by his advocates. I thus have to consider whether the respondent will be prejudiced by orders of enlargement of time and stay of execution. The Respondent can be assuaged by an award of costs and the deposit of security. It is unfortunate that none of the parties herein have disclosed the contents of the judgment. I am however inclined to enlarge time although I will discourage the filing of appeals without leave only for a party to seek leave thereafter. I do appreciate that the appeal belongs to the applicant and not his advocates who have failed him in this instance. I will not visit their mistake upon him but I will consider substantive justice that seeks not to shut the applicant from the altar of justice simply because his advocates were negligent in failing to comply with the timelines set under section 79G of the Civil Procedure Act. 13. On whether the appeal has arguable grounds, I wish to state that it is not open for me at this juncture to consider the merits of the appeal, save to observe that the Applicant has already filed a memorandum of appeal albeit without leave of this court. 14. On the balance I do allow the application herein and I thus enlarge time for filing the appeal herein for a period of 14 days. The memorandum of appeal filed on 27.12.2024 is thus deemed as timeously filed. 15. I also grant an order of stay of execution of the judgment delivered on 20.11.2024 by the trial court until the appeal herein is heard and determined on condition that the Applicant do deposit a sum of Kenya shillings 400,000 in court within 90 days from the date hereof as security. 16. The respondent is awarded cost of this application assessed at Ksh 15,000. DELIVERED, SIGNED AND DATED AT BUNGOMA THIS 29TH DAY OF JANUARY 2026. M. S. SHARIFF JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3560/eng@2026-01-29 3

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