Kenya Wildlife Service v Mrabu Kombo

not been provided. That the respondent is likely to proceed with execution if an order of stay of the judgment of the trial court is not granted thereby rendering the intended appeal nugatory. Further that the applicant has an arguable appeal and has filed the present application without undue delay and no prejudice will be occasioned to the respondent if the orders sought herein are granted. 5. Among the documents annexed to the application is a draft memorandum of appeal. The grounds raised therein are that: a. The learned trial magistrate erred in law and in fact by finding that the respondent had proved his case against the applicant who was liable 100% in negligence where there was contradictory evidence in support of the respondent's case and in total disregard of contrary evidence adduced by the applicant. b. The learned trial magistrate erred in law by purporting to shift the burden of proof from the respondent to the applicant. c. The learned trial magistrate erred in law by purporting to rewrite the respondent's pleadings and awarding that which had not been pleaded or sought by the respondent. d. The learned trial magistrate erred in law in law by awarding general damages of KShs 450,000/ = sought within the purview of section 25 of the Wildlife Conservation and Management Act. e. The learned trial magistrate erred in law in law by awarding general damages of KShs 450,000/ = while at the same time admitting that the claim had been made under section 25 of the Act which is not within the jurisdiction of the court. f. The learned trial magistrate erred in law in failing to consider the written submissions tendered by the applicant's counsel and in failing to consider the legal authorities tendered therewith. 6. The application is opposed by the respondent through the affidavit sworn on 24th October 2025 by Boaz Adalla Advocate for the respondent. He deposes that the typed and signed copy of the judgment was made available to the parties the same day on the court e-filing platform and the applicant did not require typed proceedings to file a memorandum of appeal but for the record of appeal. 7. That there is no good and sufficient cause shown as required under section 79G of the Civil Procedure Act. That the applicant has failed all the three tests for grant of stay pending appeal as required under Order 42 Rule 6(2) Civil Procedure Rules. 8. He deposes that the application is an afterthought, frivolous and only intended to delay the respondent from enjoying the fruits of his judgment and it is in the interest of justice, equity and the rule of law that the application be dismissed. 9. The application was heard by way of written submissions filed by learned counsels for the parties. Learned counsels also provided authorities to back up their arguments. 10. Learned counsel for the applicant submits that the intended appeal as set out in the draft memorandum of appeal raises a serious and arguable Appeal with good prospects of success. 11. Learned counsel submits that the applicant is a public body discharging public functions and it will stand to suffer substantial loss of the tax payers' money and revenue meant for wildlife conservation should the respondent proceed to execute the decree whereas there is no assurance from the respondent that should the appeal succeed he will be able to settle the decretal sum. Further that the applicant is capable of depositing a bank guarantee as security with the court if need be and is an entity capable of settling the decretal sum if the appeal is unsuccessful. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4532/eng@2026-02-23 2

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12. Learned counsel has cited the case of Kenya Wildlife Service v Mwawasi [2025] KEHC 9522 (KLR) for the proposition that a bank guarantee should be sufficient security in the case of the applicant herein. 13. Learned counsel submits further that there was no inordinate delay in filing the application considering that the same was done within nine days after the time had elapsed. 14. Learned counsel for the respondent submits that the application has not satisfied any of the requirements either for extension of time or for stay of execution. 15. On extension of time, learned counsel submits that there was no satisfactory explanation for the delay and that the reason offered by the applicant that he was delayed and had not received copies of typed proceedings is not valid because typed proceedings are not a prerequisite for filing an appeal. He has cited the case oF Gerald M'limbine V Joseph Kangangi [2009] KEHC 3495 (KLR) on what sufficient cause as required under section 79G could be but I have not found the particular quotation made in the submissions in that decision as reported on the Kenyalaw website (https://new.kenyalaw.org/) Unfortunately, learned counsel did not provide a copy of the decision. 16. Learned counsel also cited the case of Bi-Mach Engineers Limited v James Kahoro Mwangi [2011] KECA 242 (KLR) where the Court of Appeal declined an application for extension of time to appeal for reasons that there was unnecessary and unexplained delay by the applicant. Unfortunately, again I do not find in the reported decision the particular quotation made by the respondent in its submissions. 17. All the same the decisions are relevant as they concern the issue of extension of time to appeal. 18. Learned counsel submits that the application was filed over one month after the decision sought to be appealed from was rendered and for that matter the delay was unreasonable. The correct position however is to look at the time of delay after the requisite period for filing the appeal had elapsed and that was nine days and not over one month as submitted by learned counsel for the respondent. 19 On the issue of substantial loss, learned counsel for the respondent submits that the applicant merely alleges that it will suffer "substantial loss" if execution proceeds, without providing evidence. Learned counsel cites the case of Machira t/a Machira & Co Advocates v East African Standard [2002] KEHC 1167 (KLR) for the position that "Substantial loss is more than ordinary loss that every judgmentdebtor suffers; it must be specific and proved." Although he has placed the words in quotes as though they appear as such in the decision, they do not even as the authority is relevant. 20. I have considered the Notice of Motion application, the grounds in support thereof and the supporting affidavit as well as replying affidavit and the submissions by learned counsels. The issues for determination are whether the applicant has satisfied the requirements for extension of time to file an appeal and stay of execution pending appeal, what orders the court should issue and who bears the costs. 21. The first prayer is for extension of time to file an appeal and a draft memorandum of appeal is annexed to the supporting of affidavit. 22. Section 79G of the Civil Procedure Act under which the prayer for extension of time is based provides that: “ 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4532/eng@2026-02-23 3

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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." 23. The applicant filed the present application on 14th October 2025 which is a period of about nine days after the due date when the appeal ought to have been filed on or before 5th October 2025. The judgment sought to be challenged was delivered on 5th September 2025. Under the proviso to section 79G CPA, the appeal may still 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. In applying this section, courts have held that the court has a wide discretion to extend time to file an appeal but the discretion must not be exercised capriciously but judiciously and based on sound judgment and consideration of the totality of the facts and law. In the case of Thuita Mwangi v Kenya Airways Ltd [2003] eKLR the Court of Appeal held setting out the principles for the court to consider as follows: “ It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters which this court takes into account in deciding whether to grant an extension of time are: first, the length of the delay: secondly, the reason for the delay: thirdly (possibly) the chances of the appeal succeeding if the application is granted: and, fourthly, the degree of prejudice to the respondent if the application is granted." 24. The Supreme Court explained further in the case of Nicholas Kiptoo Arap Korir Salat v IEBC (2014) eKLR Sup Ct Application No 16 of 2014 that: “ ..extension of time is not a right of a party; a party who seeks extension of time has the burden of laying a basis to the satisfaction of the Court. Of paramount importance, the reason for delay must be explained to the satisfaction of the Court. Further, the application for extension must be brought without undue delay and it must be demonstrated if the respondent will not suffer prejudice if extension is granted". 25. It follows that a party seeking extension of time must first lay a basis for the delay and the reason(s) offered must be to the satisfaction of the court. This is what constitutes good and sufficient cause as required by the law. In the present application, the applicant's reason for the delay is that there was delay in making available typed proceedings and judgement and decree. The respondent counters that by stating that the judgment was made available at once on the courts CTS and that typed proceedings are not necessary to file a memorandum of appeal. He has cited various decisions of superior courts to support the submission. That is correct. In fact section 79G is clear that the time excluded from the computation of 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." (emphasis in bold and underline supplied). In this case however, the applicant is talking of time for obtaining proceedings and judgment which are not provided for under section 79G. The case of Farah & another v EA (Through her father and next friend) CAO [2024] KECA 268 (KLR) is quite clear on that issue and so would not be of much help to the applicant. 26. I have looked at the draft memorandum of appeal and I am satisfied that it raises reasonable grounds considering the issues of law raised therein. The same need to be ventilated. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4532/eng@2026-02-23 4

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27. Finally, the Court of Appeal weighing on this matter in the case of Charles Karanja Kiiru v Charles Githinji Muigwa [2017] KECA 131 (KLR) has that: “ There is also a duty now imposed on courts to ensure that the factors considered are consonant with the overriding objective of civil litigation, that is to say, the just, expeditious, proportionate and affordable resolution of disputes before the court." 28. Therefore, considering that the delay in filing the application was not inordinate I am inclined to find that the justice of the case would require that the extension of time be granted and I hereby do so. 29. Stay of execution pending appeal to the High Court is provided for under Order 42 Rule 6 of the Civil Procedure Rules 2010 as follows; 30. “ (1) No appeal or second appeal shall operate as a stay of execution or proceeding under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside. (2) No order for stay of execution shall be made under subrule (1) unless a. the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and b. such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant." From the foregoing provision of the law, the three conditions to be fulfilled for an order of stay pending appeal to issue are; a. that substantial loss may result to the applicant unless the order is granted. b. the application has been made without unreasonable delay. c. security as the court orders for the due performance of the decree. 31. The High Court's jurisdiction to grant a stay of execution pending appeal under Order 42 rule 6 of the Civil Procedure Rules is therefore circumscribed by these three conditions of, being satisfied that the application has been made without unreasonable delay, satisfaction that substantial loss may occur if the order is not granted and the furnishing of security for the due performance of the court's orders. (See the case of Halai & another v Thornton & Turpin (1963) Ltd [1990] KECA 65 (KLR)). 32. These principles are further enunciated in the case of Butt v Rent Restriction Tribunal [1979] KECA 22 (KLR) where the Court of Appeal stated what ought to be considered in determining whether to grant or refuse stay of execution pending appeal. The court said that: - https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4532/eng@2026-02-23 5

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a. The power of the court to grant or refuse an application for a stay of execution is discretionary; and the discretion should be exercised in such a way as not to prevent an appeal. b. Secondly, the general principle in granting or refusing a stay is, if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should the appeal court reverse the judge's discretion. c. Thirdly, a judge should not refuse a stay if there are good grounds for granting it merely because, in his opinion, a better remedy may become available to the applicant at the end of the proceedings. d. Finally, the Court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances and its unique requirements. The court in exercising its powers under Order XLI Rule 4(2) (b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security as ordered will cause the order for stay of execution to lapse. 33. It has also been held that the court, in exercising its discretion, should opt for the lower rather than the higher risk of injustice and finally the court will also consider the overriding objective as stipulated in sections 1A and 1B of the Civil Procedure Act, which the courts are now enjoined to give effect to. (See Machira t/a Machira & Co Advocates v East African Standard [2002] KEHC 1167 (KLR)). 34. The appellant submits that its appeal is arguable. However, that is not one of the conditions for grant of stay pending appeal to the High Court. 35. On the requirement that the application has been made without unreasonable delay, as found above, I am satisfied that the application was filed within a reasonable time and therefore that condition is satisfied. 36. On the requirement to demonstrate substantial loss, the applicant deposes that it stands to suffer substantial loss if execution is levied because there is no guarantee by the respondent that he can refund the decretal sum if the appeal is successful. This contention has not been recounted by the respondent who only says that he is a resident of Kwale and a Kenyan citizen without showing the means by which he may refund the amount if called upon to. I am satisfied that the second condition of showing that the applicant is likely to suffer substantial loss has also been satisfied. 37. I am aware that the respondent has a decree in his favour and he is entitled to enjoy the fruits thereof. But the applicant also has its right to appeal. The court has to balance the interests of the applicant who is seeking to preserve the status quo pending the hearing of the appeal so that the appeal is not rendered nugatory and the interests of the respondent who is seeking to enjoy the fruits of his judgment. Balancing the two competing interests in this case, I find that the loss that would be suffered by the applicant would be substantial if the stay order is not granted. 38. The issue of the prejudice likely to be suffered by the respondent in delaying the execution process is evened out on the next requirement to be satisfied by the applicant for stay of execution to issue that is, "such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant." 39. It is true as submitted by learned counsel for the respondent that the applicant in its supporting affidavit has not offered to provide any security. However, the form of security to be provided is at the discretion of the court. In that case, whether or not the applicant has offered one, what is important is the satisfaction of that condition. I note that in the submissions, the learned counsel has indicated that https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4532/eng@2026-02-23 6

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the applicant is prepared to offer a bank guarantee. He has cited several cases involving the applicant to support that submission. The court will in its discretion set and require an appropriate security from the applicant, failure to which its application fails. 40. Consequently, I find that the prayer for stay of execution has merit and in order not to render the intended appeal nugatory, the same is granted on conditions set out below. 41. In the upshot, the application for extension of time is allowed and stay of execution of the decree of the lower court in Kwale Magistrates' Court Civil Case No. E068 of 2024 is granted pending hearing and determination of the intended appeal herein on condition that the applicant deposits in this court a suitable bank guarantee for the entire decretal sum within 30 days from the date of this ruling. 42. Failure by the applicant to abide by the condition hereinabove, this application will be deemed to have been dismissed and the respondent will be at liberty to execute. 43. The record of appeal shall be filed within 45 days from today. 44. Costs of the application will abide by the appeal. 45. Orders accordingly. DELIVERED, DATED AND SIGNED AT KWALE ON THE VIRTUAL PLATFORM, MICROSOFTTEAMS THIS 23RD DAY OF FEBRUARY 2026. ANDAYI W. F. JUDGE In the presence of: Nyaga for the applicant. Adala for the respondent. Ummu: Court Assistant. SIGNED BY/FOR: HON. JUSTICE ANDAYI W.F. THE JUDICIARY OF KENYA. KWALE HIGH COURT HIGH COURT DIV DATE: 2026-03-01 09:58:34 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4532/eng@2026-02-23 7

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