Muthoni v Mageto (Miscellaneous Civil Application E037 of 2026) [2026] KEHC 6949 (KLR) (28 April 2026) (Ruling) Neutral citation: [2026] KEHC 6949 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT KISII MISCELLANEOUS CIVIL APPLICATION E037 OF 2026 SIFUNA NIXON, J APRIL 28, 2026 BETWEEN MARY ANN MUTHONI ........................................................................ APPLICANT AND DAVIS MAGETO .................................................................................. RESPONDENT RULING 1. This Application is principally for a stay of execution. As well as for leave to appeal out of time. It is also seeking a lifting and setting aside of warrants of execution and proclamation of the Applicant’s property attached by the auctioneer in execution in the execution of the decree in Kisii CMCC NO. E137 of 2023. 2. The Application which is dated 9th February 2026, and brought under section 79G and 95 of the Civil Procedure Act (Cap 21 Laws of Kenya) as well as order 42 of the Civil Procedure Rules, is supported by a Supporting Affidavit sworn by Edinah Misanya a legal officer at Britam Geneal Insurance Co. Ltd the Respondent’s insurer. 3. Which Application is based on secured grounds key among them being that the Applicant failed to give instructions for appeal in good time. Also that she fully relied on the insurer (the said Britam Geneal Insurance Co.. Ltd) and expected it to act. Further that she has a good and arguable appeal 4. The Respondent opposed that Application. Thereafter it was canvassed by the way of written submissions. Determination 5. I have considered the Application (together with its Supporting Affidavit, the Respondent’s filed response; the parties’ rival submissions, and the applicable law. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6949/eng@2026-04-28 1
page 1 of 2
6. For an Application to appeal of out of time, a court will consider the reasons and the factors that the Applicant has cited for the delay. Besides, the delay need not only be explained. The explanation has to be satisfactory, and the delay itself need be reasonable and not a prolonged one. 7. For this case I have considered the reasons cited by the Applicant. I have found those reasons to perfunctory and non-persuasive. The delay was actually as a result of sheer neglect and lack of ddiligence on the part of the Applicant. Such are not sufficient to warrant an enlargement of time, or for the grant of leave to file out of time. 8. A delay of more than five months is so prolonged a delay that cannot be said to be reasonable delay. It is delay that is so prolonged to be excused; and especially when the explanation given for it is so lame and unconvincing. I am convinced that the decision to appeal, is an after-thought. 9. In the end therefore, I decline to grant leave to appeal out of time. As for the plea for stay pending appeal, I hold that such such a stay can only be granted where there is a competent appeal or prospects of an appeal. In this case, the leave to appeal having been declined, the plea for stay pending appeal, lacks anchor. For that reason, the plea for stay pending appeal is misplaced and therefore declined. 10. Before I sign off, I need to also point out that as the Supporting Affidavit is sworn by a stranger other than the Applicant herself, it is defective. However supportive it is, of the Application. To my mind, an Application that is solely supported by a defective Supporting Affidavit cannot stand, as it has to go the same way as its Affidavit. 11. In the end, and for all the aforegoing reasons, the entire Application fails, and is hereby dismissed with costs. DATED AND DELIVERED AT KISII ON THIS 28TH DAY OF APRIL 2026 PROF (DR) NIXON SIFUNA JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6949/eng@2026-04-28 2
page 2 of 2