High Court 5888 of 2026

2. The application is anchored on the grounds stated on its face, and on the depositions made in the supporting affidavit sworn by the applicant, JMK, on 2nd October, 2024. 3. Briefly, the applicant alleged that he was aggrieved by the judgement of the lower court in Murang’a Magistrate court children case no. E008 of 2024 which was delivered on 7th August, 2024, and he intends to appeal against the decision of the court. 4. He averred that he has instructed the firm of S Matu Ngeru & Company Advocates to come on record on his behalf for purposes of prosecuting the intended appeal, however, the said firm of advocates requires leave of this court to come on record on his behalf as per Order 9 rule 9 of the Civil Procedure rules. 5. The applicant further averred that the delay in filing his appeal within the prescribed timelines was not intentional, but was occasioned by his previous counsel failure to follow his instructions to file the appeal. 6. The applicant contended that his appeal is arguable and with high chances of success, as such, if stay of execution is not granted, his appeal will be rendered nugatory and he will suffer substantial loss as he will be subjected to immense financial hardship. 7. The application was opposed vide a replying affidavit sworn by the Respondent, CWW, on 10th February, 2025. In the affidavit, the Respondent alleged that the Applicant has not demonstrated sufficient reason for the delay in filing the appeal; and that the minor in question will suffer, considering that the applicant has completely ignored to pay the upkeep ordered by the court. 8. The Respondent further alleged that there was inordinate delay on the applicant’s part in bringing the instant application, and also that the applicant has not offered any security to qualify for stay of execution. It was the respondent’s contention that the applicant is capable of paying the Kshs. 14,000 per month as ordered by the trial court. 9. In response, the applicant filed a supplementary affidavit sworn on 10th March, 2025, wherein he averred that he has been remitting some monies to the respondent for the maintenance of the minor despite being aggrieved by the decision of the trial court. He further averred that the amount of Kshs. 14,000 awarded by the lower court is excessive and beyond his means, as he earns a net salary of Kshs.10,000. 10. The applicant contended that a portion of his income is deducted to repay a loan facility of Kshs. 1, 251, 744, from cooperative bank, which he took in the year 2002, before the minor was born. 11. The applicant further contended that aside from the minor, he also has a family that depends on him as the sole breadwinner and thus the Kshs. 10,000 demanded by the respondent is prejudicial as he will not be able to provide for his family as well as the minor. The applicant averred that he was ready and willing to continue paying a sum of Kshs. 5,000 pending the hearing and determination of the appeal. 12. The application was canvassed by way of written submissions. In his written submissions dated 10th March, 2025, the applicant submitted that the firm of S. Matu Ngeru & Company Advocates, in seeking leave to come on record on his behalf, has followed the mandatory requirement of Order 9 rule 9 of the Civil Procedure rules. He contended that the application seeking leave to come on record post judgement was served upon the firm of C.W. Waititu & Company Advocates, the applicant’s former advocates, and the same stands unopposed. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5888/eng@2026-04-30 2

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13. The applicant further submitted that the delay in filing his appeal was not deliberate, but was occasioned by the indolence of his previous advocates, who neglected to file the appeal within the stipulated time, despite firm instructions from the applicant to do so. 14. The applicant contended that having not received any communication from his former advocate regarding the filing of his appeal, he took initiative to follow up on the status of the appeal; and upon learning that the advocates had failed to take up his instructions, he acted promptly to appoint the firm of S. Matu Ngeru & Company Advocates to file the same on his behalf. 15. The applicant submitted that his intended appeal has a high probability of success and ought to be argued fully before court. he contended that should this court fail to grant stay, his appeal will be rendered nugatory, thereby defeating the ends of justice. 16. The applicant further contended that he stands to suffer substantial loss should his application not be granted as he will be left destitute and experience hardship should execution take place. 17. The respondents did not file their written submissions. 18. I have duly considered the application, the affidavit in response as well as the written submissions filed by the applicant, and I Find that the main issue for determination is whether the applicant should be granted the orders sought. 19. Turning now to the prayer for leave for the firm of S. Matu Ngeru & Company Advocates to come on record for the applicant post judgement, Order 9 rule 9 of the Civil Procedure rules stipulates as follows: “ When there is a change of advocate, or when a party decides to act in person having previously engaged an advocate, after judgment has been passed, such change or intention to act in person shall not be effected without an order of the court— 20. (a) upon an application with notice to all the parties; or (b) upon a consent filed between the outgoing advocate and the proposed incoming advocate or party intending to act in person as the case may be.” The court in Connection Joint v Apollo Insurance [2006] KEHC 3281 (KLR); held as follows: “ Furthermore, it may be recalled that the mischief which was targeted by the introduction of that rule, was the replacement of advocates who had worked hard to enable a case get to the stage of judgement. In my understanding, some unscrupulous persons used to either appoint new advocates or take over the personal conduct of cases, as soon as judgement had been granted in their favour. Thereafter, the advocates who had been replaced were left chasing after their legal fees, which was not fair to them, especially when the said advocates only learnt about their own replacements, after the same had taken effect. By making it mandatory for the party who seeks to replace his advocate, after judgement was passed, to apply to the court, with notice to his said advocate, the rules committee addressed two concerns. First, it was no longer possible for the advocate to be taken by surprise, by his ouster, as he had to be served with the application seeking to remove him from record: secondly, the fact that the court had the opportunity of giving due consideration to the reasons for and against the application, implied that the court was able, if necessary, to impose terms and conditions. For instance, if it transpired that the advocate's fees had not https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5888/eng@2026-04-30 3

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yet been paid, the court could impose appropriate conditions to the order enabling the party to either act in person or alternatively, to engage another advocate.” 21. Similarly, in Johnson M.S. Njoguri versus Samuel Makindu Gachegu [2021] KEHC 3625 (KLR); the court stated as follows: “ What appears from the above is that the need for leave to change an advocate after judgment is only meant to cater for the interests of the advocate whom the applicant wants to change. Despite the respondent having brought the issue as to service of the instant application upon the firm of Munyasya & Company Advocates, the applicant did not refute these averments or prove that the same was served upon the said firm of advocates. Though the above is the correct legal position, in my view, the change of advocates by a party to proceeding without notifying the previous advocate cannot in any way prejudice the other party in the proceedings so as to warrant a court to deny the party leave to effect the said change. The respondent did not prove any prejudice which he stands to suffer if the change of the advocates is allowed. I say so bearing in mind that an advocate has a right to raise a clientadvocate bill of costs for work done or services rendered if the same has not been paid for.” 22. In this case, the applicant alleges in his written submissions, that he served the application for leave for the firm of S. Matu Ngeru & Company Advocates to come on record on his behalf post judgement, to his former advocates and the application has not been opposed. 23. I have also noted that the respondent did not, in her replying affidavit, oppose to the applicant having the firm of S. Matu Ngeru & Company Advocates coming on record for the applicant post judgement. She has also not demonstrated any prejudice that she is likely to suffer should the said firm of Advocates come on record for the applicant. In the circumstance, this court will grant the applicant leave to effect the change of Advocates. 24. Regarding the prayer for leave to file his intended appeal out of time, the law governing the filing of appeals to the high court and that also allows for the extension of time to file an appeal out of the prescribed time is found in Section 79 G of the Civil Procedure Act. The said provision of law stipulates thus: “ 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.” 25. Based on the above provision of the Civil Procedure Act, it is evident that this court has unfettered discretion to extend the time for filing an appeal which has not been filed within the prescribed time, provided that the applicants are able to show that they have a good and sufficient reason for not filing the same within the time required. 26. The Court of Appeal in Thuita Mwangi v Kenya Airways Limited (2003) eKLR; expressed itself thus: “ Over the years, the Court has, of course set out guidelines on what a single Judge should consider when dealing with an application for extension of time under rule 4 of the Rules. For instance, in Leo Sila Mutiso v Rose Hellen Wangari Mwangi, (Civil Application No Nai 255 of 1997) (unreported), the Court expressed itself thus: “It is now well settled that https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5888/eng@2026-04-30 4

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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.” 27. In this case, it is not disputed that the judgement the applicant intends to appeal against was delivered by the lower court on 7th August, 2024, as such, the statutory prescribed period for filing his intended appeal would have lapsed on 6th September, 2024. The applicant however filed his application on 2nd October, 2024 which is a period of approximately twenty-six (26) days after the lapse of the statutory prescribed period to file his intended appeal. 28. The reasons that the applicant has given for not filing his intended appeal within the prescribed time, is that his previous counsel did not heed to his instructions to file an appeal after the lower court rendered its judgement. The applicant did not however adduce any material to show that he had reached out to his former advocate to file an appeal on his behalf, and the said advocate declined. That notwithstanding, I am of the considered view, that a delay of twenty-six (26) days cannot be said to be inordinate. The applicant is therefore granted leave to file his intended appeal out of time. 29. The applicant had also prayed that should he be granted leave to file his intended appeal out of time, then his appeal, being Murang’a High Court Civil Appeal no. E099 of 2024 should be deemed as duly filed. I have noted from the record of the court, that the applicant had filed his intended appeal to this court, before being granted leave to file the same out of time. He now seeks this court to validate the appeal that he had filed out of time without leave. 30. The court of appeal in Charles Karanja Kiiru v Charles Githinji Muigwa [2017] KECA 131 (KLR); when faced with a similar issue, stated as follows: “ There is a plethora of authorities from the High Court which interpret the proviso to Section 79G of the Civil Procedure Act to mean that an appeal filed out of time can be admitted as being properly on record once extension of time is granted. Emukule, J. in the Gerald M’limbine vs. Joseph Kangangi [2009] e KLR stated that-“My understanding of the proviso to section 79G is that an applicant seeking “an appeal to be admitted out of time” must in effect file such an appeal and at the same time seek leave of court to have an appeal admitted out of the statutory period of time. The provision does not mean that an intending appellant first seeks the court’s permission to admit a non-existent appeal out the stipulated period. To do so would actually be an abuse of the court’s process under Section 79B”. Similarly, Aburili, J. in Martha Wambui. Irene Wanjiru Mwangi & another [2015] eKLR held, “In my view, the use of the term “admitted” connotes both the act of allowing an appeal to be filed out of time and also the act of allowing or permitting an appeal already filed to be admitted out of time …” See also Apa Insurance Limited vs. Michael Kinyanjui Muturi [2016] eKLR. This is the position this Court has taken when dealing with applications for extension of time. We have always, and we believe lawfully so, deemed as duly filed applications filed without leave where leave is sought and subsequently granted. Learned counsel for the appellant submitted that this position was found to be untenable by the Supreme Court https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5888/eng@2026-04-30 5

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which pronounced itself as follows the Nicholas Kiptoo Arap Korir Salat-vs- Independent Electoral and Boundaries Commission &7 others [2014] eKLR (Salat case,) “… counsel for the applicant acknowledged having already filed his appeal. He now prays for extension of time and urges that once so granted, the Petition of appeal already filed be deemed to have been duly filed. What we hear the applicant telling the Court is that he is acknowledging having filed a ‘document’ he calls ‘an appeal’ out of time without leave of the Court. Pursuant to rule 33(1) of the Court’s Rules, it is mandatory that an appeal can only be filed within 30 days of filing the notice of appeal. Under rule 53 of the Court’s Rules, this Court can indeed extend time. However, it cannot be gainsaid that where the law provides for the time within which something ought to be done, if that time lapses, one need to first seek extension of that time before he can proceed to do that which the law requires. By filing an appeal out of time before seeking extension of time, and subsequently seeking the Court to extend time and recognize such ‘an appeal’, is tantamount to moving the Court to remedy an illegality. This, the Court cannot do. To file an appeal out of time and seek the Court to extend time is presumptive and in-appropriate. No appeal can be filed out of time without leave of the Court. Such a filling renders the ‘document’ so filed a nullity and of no legal consequence. Consequently, this Court will not accept a document filed out of time without leave of the Court.” Emphasis added. In our view however, the Salat case was in respect of Rule 53 of the Supreme Court Rules which simply provides as follows; “The Court may extend the time limited by these Rules, or by any decision of the Court.” That Rule only applies to applications before the Supreme Court and not before any other court. Conversely Rule 4 Court of Appeal Rules provides as follows on extension of time. “The Court may, on such terms as it thinks just, by order extend the time limited by these Rules, or by any decision of the Court, or of a superior court, for the doing of any act authorized or required by these Rules, whether before or after the doing of the act, and a reference in these Rules to any such time shall be construed as a reference to that time as extended”. (emphasis supplied) We find it necessary to cite the above Rule in entirety because even assuming the learned Judge was wrong in deeming the appeal as having been deemed to have been duly filed, this Court would still have jurisdiction to validate the said leave if it deemed it appropriate to do so. Moreover, in our view, under Order 50, Rule 6 of the Civil Procedure Rules on which the learned Judge relied, the court has power to enlarge time “upon such terms as the justice of the case may require…”If therefore the learned Judge finds it in the interest of justice https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5888/eng@2026-04-30 6

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to deem an already filed document as having been duly filed, then his discretion in that respect should not be fettered.” 31. Accordingly, I find that Murang’a High Court Civil Appeal No. E099 of 2024, which was filed by the applicant out of time is deemed to be duly filed with leave of this court herein being granted enlarging the period within which the said appeal should have been filed. 32. Turning now to the prayer for stay of execution pending the hearing and determination of the applicant’s appeal; the law governing stay of execution pending an appeal, is provided for under Order 42 rule 6 of the Civil Procedure rules. 33. Order 42 rule 6 (1) of the Civil Procedure rules stipulates as follows: “ No appeal or second appeal shall operate as a stay of execution or proceedings 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.” 34. The conditions to be fulfilled by an applicant seeking stay of execution orders pending an appeal, have been provided for under Order 42 rule 6 (2) as follows: “ No order for stay of execution shall be made under sub rule (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. 35. From the above provision of the Civil Procedure rules, it is evident that for an applicant to be granted stay of execution pending an appeal; he or she must prove that substantial loss may result should the said order not be granted; the applicant must be willing to deposit security for the due performance of the decree and the applicant must show that the application for stay was made without unreasonable delay. 36. This being a matter involving a child, it is trite that when considering an application for grant of stay of execution in children’s matters, it is paramount that the best interest of the minor is considered. This position was restated by the court in Abdullahi v Abdullahi [2026] KEHC 2775 (KLR), where the court cited with approval the case of Bhutt v Bhutt Mombasa HCCC NO. 8 of 2014 (O.S.) as follows: “ In determining an application for stay of execution in cases involving children, the general principles for the grant of stay of execution Order 42 Rule 6 of the Civil Procedure Rules, must be complemented by overriding consideration of the best interest of the child in accordance with Article 53 (2) of the Constitution.” 37. On whether the applicant is likely to suffer substantial loss if an order for stay of execution is not granted, the applicant submitted that he would be rendered destitute and subjected to hardship https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5888/eng@2026-04-30 7

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should execution proceed. He indicated in his supplementary affidavit that he earns a net salary of Kshs. 10,000, as a substantial portion of his income is committed to servicing a loan facility of Kshs. 1,251,744 obtained from Co-operative Bank in the year 2002, prior to the birth of the minor. 38. In support of his position, the applicant annexed two payslips indicating a net salary of Kshs. 10,893.45. Upon careful scrutiny of the said payslips, it is apparent that, in addition to the loan allegedly obtained from Co-operative Bank, the applicant is also servicing two other loan facilities of Kshs. 913,093 and Kshs. 375,207 respectively, both from Platinum Credit, which he had not disclosed to the court about. Although he alleged that the loan from cooperative bank was secured before the minor was born, he did not indicate when he obtained the loan facilities from platinum credit. 39. As per the attached payslips, it is evident that the applicant is servicing three substantial loans despite earning a gross salary of Kshs. 52,885. In my considered view, the applicant’s financial predicament is largely self-inflicted, as no satisfactory explanation has been offered as to why he took multiple loans of such significant amounts, while being fully aware of his familial responsibilities, including the obligation to provide for the minor. 40. I would also like to state at this juncture, that whereas the applicant earns a gross salary of Kshs. 52,885, his net salary stands at Kshs. 10,893.45. It is not clear how deductions in excess of two-thirds of his salary are being effected by his employer, as this position appears to go against the provisions of Section 19(3) of the Employment Act, which limits the proportion of wages that may be lawfully deducted. The applicant ought to take appropriate steps to regularize this position with his employer so as to ensure compliance with the law and to safeguard a reasonable portion of his earnings. 41. Being that as it may, the applicant had indicated that he was willing to continue paying Kshs. 5,000 for the minor’s sustenance pending the hearing and determination of his appeal. Having come to the con that the applicant’s financial woes are largely of his own creation, it would be unjust for the minor to bear the consequences of the applicant’s self-created financial constraints. 42. In the circumstances, and bearing in mind the need to balance the interests of the minor with those of the applicant, I am persuaded that the applicant should be granted an order of stay of execution, but on terms that will ensure the continued provision for the minor pending the determination of the appeal. 43. The stay of execution will be granted on condition that the applicant continues paying an interim monthly sum of Kshs. 10,000 for the minor’s up keep, pending the hearing and determination of his appeal. 44. Consequently, it is my finding that this Notice of Motion is merited and is allowed in the following terms: i. That the firm of S Matu Ngeru & Company Advocates is hereby granted leave to come on record for the applicant ii. That the applicant is granted leave to file his appeal out of time iii. That Murang’a High Court Civil Appeal No. E099 of 2024, which was filed out of time is deemed to be duly filed with leave of this court herein being granted enlarging the period within which the said appeal should have been filed iv. That a stay of execution of the trial court’s orders in Murang’a MCCHC case no. E008 of 2023, is hereby granted pending the hearing and determination of the appeal v. That the applicant shall pay an interim monthly maintenance of Kshs. 10,000 for the upkeep of the minor pending the appeal https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5888/eng@2026-04-30 8

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vi. There shall be no order as to costs. vii. Mention before the Deputy Registrar Murang’a on 14th May, 2026 for further directions on the Appeal. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 30TH DAY OF APRIL, 2026. HON. T. W. OUYA, OGW JUDGE In the presence of: Ms. Maina holding brief for Matu for Appellant/Applicant No appearance for Respondent Kelvin/Hamza – Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5888/eng@2026-04-30 9

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