Charles Barnabas Gasston v Jayesh Kotecha T/A Madira Limited

2. The application is premised on the grounds on the face of it and further supported by the affidavit sworn by Charles Barnabas Gasston dated 8th July 2025 in which he depones that on 29th May 2025, the Honourable Court delivered judgment in favour of the Respondent, ordering him to refund the sum of Kshs 1,209, 280 together with the costs of the suit. 3. That upon delivering its Judgement, the Honourable Court granted a 30-day stay of execution to allow him sufficient time to file an appeal if he so wished. 4. That on 12th June 2025, the Respondent’s Advocate wrote a letter to the Deputy Registrar of the trial court requesting for a copy of the Judgement, thereby confirming that the judgement had not been uploaded or made accessible to the parties at the time. That this further underscores the Appellant’s position that there was delays in accessing the judgement and that this appeal was filed without undue delay upon obtaining a copy of the same 5. He states that upon receipt of the Judgement, his advocate on record wrote to the Deputy Registrar on 13th June 2025 formally requesting certified copies of the judgment and proceedings to enable the filling of the intended appeal. 6. He also stated that despite the said request and follow-up the judgment and proceedings were neither supplied to his advocates nor uploaded on the judiciary portal until 2.7.2025 after the lapse of the 30 days stay of execution. 7. He further states that prior to the uploading of the judgement on 1.7.2025 the Respondents advocate served his advocate with a formal demand for the payment of the decretal sum, costs and interest, thus signaling their clear intention to proceed with execution. 8. He also stated that immediately upon the uploading of the judgment of the Judiciary portal, he instructed his advocate to file the present application, which was brought without delay on 4th July 2025 evidencing his promptness and diligence in pursuing his right of appeal. 9. That the delay in filing the appeal within time was not occasioned by indolence on his part but solely due to circumstances beyond his control, particularly the delay in availing the judgment and proceedings required for the preparation and filing of the appeal. 10. That unless the Honourable court grants the orders sought, there would be a real and imminent risk that execution would proceed, occasioning him substantial loss and hardship, and rendering the intended appeal nugatory. 11. The Application was canvassed by way of written submissions. 12. The Applicant argues that the delay was neither intentional nor inordinate and that unless stay is granted, execution is likely to issue thereby rendering the intended appeal nugatory. 13. The application was opposed by the Respondent who argued that litigation must come to an end and that the Applicant had not demonstrated sufficient cause to warrant the exercise of this Court’s discretion. 14. I have considered the application, the affidavits on record and the submissions by counsel. 15. The applicable law is Section 79G of the Civil Procedure Act which 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… Provided that an https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6696/eng@2026-05-18 2

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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.” 16. The principles governing extension of time are now settled. In the case of Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others the Supreme Court held that extension of time is an equitable remedy granted at the discretion of the court and that the applicant must satisfactorily explain the delay. 17. Similarly, in Leo Sila Mutiso v Rose Hellen Wangari Mwangi Nairobi CA No. 255 of 1997 Court stated that in exercising discretion to extend time, the court considers: a. The length of the delay; b. The reason for the delay; c. The chances of the appeal succeeding; and d. The degree of prejudice to the respondent. 18. In the present matter, the explanation tendered by the Applicant appears plausible and satisfactory. The material before the Court shows that counsel for the Applicant wrote a letter dated 12th June 2025 requesting for a copy of the judgment. The judgment was however only uploaded onto the court portal on 2nd July 2025. In the circumstances, the delay cannot be said to have been deliberate or inordinate. 19. This Court takes judicial notice of the fact that parties ordinarily rely on typed judgments and uploaded decisions for purposes of obtaining proper instructions and preparing competent appeals. Where a litigant demonstrates diligence by promptly seeking the judgment but encounters administrative delay beyond his control, the Court ought not to shut the doors of justice on account of procedural timelines alone. 20. I am therefore satisfied that sufficient cause has been shown to warrant the exercise of this Court’s discretion in favour of the Applicant. 21. Regarding the question whether the Applicant has met the legal threshold for the grant of a stay pending appeal, this court is called upon to consider the governing legal principles. These are set out under Order 42 Rule 6 of the Civil Procedure Rules. An applicant must demonstrate: a. That substantial loss may result unless the order is made; b. That the application has been brought without unreasonable delay; and c. Such security as the court may order for the due performance of the decree. 22. In Butt v Rent Restriction Tribunal [1979] KLR the Court held that the power of the Court to grant or refuse stay is discretionary and ought to be exercised in such a manner as not to prevent an appeal. 23. Similarly, in Kenya Shell Ltd v Kibiru & Another [1986] KLR the Court emphasized that substantial loss is the cornerstone of an application for stay. The Court stated that if there is no evidence of substantial loss, it would be difficult to justify granting stay. 24. In monetary decrees, the Court is often concerned with whether the decretal sum, once paid out, would be recoverable in the event the appeal succeeds. In National Industrial Credit Bank Ltd v Aquinas Francis Wasike & Another [2015] JELR 98535, the Court of Appeal held that once an applicant expresses reasonable apprehension that the respondent may be unable to refund the decretal sum, the evidential burden shifts to the respondent to demonstrate financial means. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6696/eng@2026-05-18 3

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25. The Applicant has expressed apprehension that execution may proceed before the intended appeal is heard. The application was filed promptly upon obtaining access to the judgment. 26. On security, the Court retains discretion to impose appropriate terms balancing the competing interests of both parties. 27. Accordingly, and in the interest of justice, I find merit in the application and make the following orders: 28. a. Leave is hereby granted to the Applicant to file and serve the appeal out of time. b. The Memorandum of Appeal shall be filed and served within fourteen (14) days from the date hereof. c. There shall be a stay of execution of the judgment and decree of the subordinate court pending the hearing and determination of the intended appeal. d. The stay is granted on condition that the Applicant deposits the decretal sum in a joint interest earning account in the names of the parties’ advocates within thirty (30) days from the date hereof, failing which the stay shall automatically lapse. Costs of the application shall abide the outcome of the appeal. It is so ordered. DATED SIGNED AND DELIVERED VIRTUALLY THIS 18TH DAY OF MAY 2026 A.K. NDUNG’U JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6696/eng@2026-05-18 4

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