High Court 7094 of 2026

mainly that the Applicants were never served with summons to enter appearance and a Plaint in Kangundo CMCC No. No. E065 of 2022. 3. 4. The Respondent opposed the said application by filing a Replying Affidavit sworn on 9th June, 2025 stating that; i. The Applicants’ application is misconceived, an abuse of the court process and bereft of merit and merely aimed at delaying the Respondent from enjoy ng fruits of a successful litigation. ii. That the Applicants' attempt to seek leave to appeal against the Judgement delivered on 29th May, 2023, after a period of 2 years since the said Judgment was issued is an abuse of the court. iii. That for the record, the issue of whether the Applicants were served with the summons and pleadings in the matter herein was long determined by the court in Kangundo CMCC No. E065 of 2022 in a Ruling issued on 28th November, 2023 and the Applicants filed an application for review, challenging the judgement issued on 29th May 2023 on the ground of lack of service. iv. That it is therefore the Respondent’s contention that the Applicants having sought to review the judgement issued on 25th May, 2025 cannot now purport to appeal against the same, instead they could have appealed against the decision and/or ruling issued on 28th November, 2023. v. That further, it is the Respondent's contention that the Applicants have not met the legal threshold for grant of leave to the Applicants to appeal out of time as the Applicants have failed to provide this Honourable Court with reasonable reasons why they did not file the Appeal on time rather just indicating that they were never served with Summons to enter Appearance and Pleadings which issue was overruled by the trial court. vi. That Section 80 of the Act and Order 45 Rules 1 and 2 makes it abundantly clear that a Party cannot apply for review and appeal from the same decree or order. In the present case, the Applicants exhausted the process of review up to appeal and now wishes to go back to the same order they sought review of and failed, and now wish to try their luck with an appeal. vii. That the Applicants have not met the legal threshold for grant of stay of execution, and as such they have failed to demonstrate the substantial loss they will likely to suffer in the event the stay of execution is not granted. viii. That additionally it is the Applicants assertion that the entire application is bad in law and wholly devoid of merit as the Applicants have failed to satisfy the settled principles to allow the prayers sought therein. ix. That further allowing the Applicants' application will be detrimental to the Respondent and to the rules of natural justice. The application was canvassed through written submissions. The Applicants’ submissions are dated 19th August 2025 while the Respondent’s submissions are dated 28th July 2025. Analysis and determination 5. I have considered the application, the supporting affidavit, the replying affidavit, the affidavit in response to the replying affidavit and the rival submissions filed by the Parties’ counsel as well as the judicial decisions relied upon. In my view, the issues for determination are as follows:- https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7094/eng@2026-03-24 2

page 2 of 5

a. Whether the court should exercise its discretion to grant the applicant leave to file their appeal out of time; b. Whether the applicant has met the prerequisite for grant of stay of execution pending appeal; a. Whether the court should exercise its discretion to grant the applicant leave to file his appeal out of time; 6. Section 79G of the Civil Procedure Act states: “ 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 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”. 7. It is clear from the wording of Section 79G of the Civil Procedure Act that before the court considers extension of time, the Applicants must satisfy the court that that they have good and sufficient cause for filing the appeal out of time. This principle was enunciated in the case of Diplack Kenya Limited vs William Muthama Kitonyi [2018] eKLR that an applicant seeking enlargement of time to file an appeal or admission of an already filed appeal must show that he has a good cause for doing so. 8. The Supreme Court in the case of Nicholas Kiptoo Korir arap Salat vs IEBC and 7 Others [2014] eKLR enunciated the principles applicable in an application for leave to appeal out of time. The court stated inter alia that:“ The underlying principles a court should consider in exercise of such discretion should include:- 9. a. Extension of time is not a right of any party. It is an equitable remedy that is only available to a deserving party at the discretion of the court; b. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court; c. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case-by-case basis; d. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court; e. Whether there will be any prejudice suffered by the respondent if the extension is granted; f. Whether the application has been brought without undue delay. Similarly in the case of Paul Musili Wambua vs Attorney General & 2 Others [2015] eKLR, the Court of Appeal in considering an application for extension of time and leave to file the Notice of Appeal out of time stated the following:“ …….it is now settled by a long line of authorities by this court that the decision of whether or not to extend the time for filing an appeal the Judge exercises unfettered discretion. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7094/eng@2026-03-24 3

page 3 of 5

However, in the exercise of such discretion, the court must act upon reason(s) not based on whim or caprice. In general, the matters which a court takes into account in deciding whether or not to grant an extension of time are; the length of delay, the reason for the delay, the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the application is granted.” 10. Applying the above principles to the present case, the judgment herein was delivered on 29th May, 2023 and the appeal ought to have been filed by 29th June 2023. The Applicant filed the current application dated 9th May 2025. This is about two (2) years outside the time limited for filing an appeal. The Applicants attribute the delay in lodging the appeal to not being aware of the judgement and by the time they became aware the time to lodge the appeal had already expired. 11. I have established that following the delivery of the judgement dated 25th May 2023, the Applicants filed a Notice of Motion application dated 21st September 2023 filed by the law firm of Nelson Gatungo & Co. Advocates seeking to have he said judgement set aside and or reviewed and to grant the Applicants leave to defend the suit by filing a defence and consequently sought orders of stay of execution and stay of proceedings in Kangundo CMCC No. E065 of 2022 between the parties herein. The application was vehemently opposed by the Respondent vide a replying affidavit sworn on 2nd October 2023. 12. In a ruling delivered on 28th November 2023, the trial court dismissed the review application having been convinced that the Applicants were duly served with Summons to enter appearance. 13. The Applicants did not appeal against the ruling 28th November 2023 dismissing their review application instead the Applicant have moved to file the instant application seeking leave to lodge an appeal out of time against the judgement delivered on 25th May 2023. 14. Up to this point, it is my considered view that I first determine whether or not the application is competent and properly before this court. 15. Section 80 of the Civil Procedure Act and Order 45 Rules 1 and 2 of the Civil Procedure Rues make it abundantly clear that a Party cannot apply for review and appeal from the same decree or order. In this case, the Applicants having opted to apply for review of the judgement under consideration are barred from lodging an appeal against the same judgement. 16. Section 80 of the Civil Procedure Act states as follows; “ 80. 17. Any person who considers himself aggrieved— (a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or (b) by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.” Order 45 of the Civil Procedure Rules 2010 also states thus;“ 45. 1(1) Any person considering himself aggrieveda. by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, or https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7094/eng@2026-03-24 4

page 4 of 5

(b) by a decree or order from which no appeal is hereby allowed And who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reasons, desires to obtain a review of the decree or order may apply for a review of judgment to the court which pass the decree or made the order without unreasonable delay” 18. It is trite law that a Party dissatisfied with a ruling, the proper recourse lies in an appeal against the ruling. Therefore, the Applicants would have been expected to appeal against the ruling dated 28th November 2023 that dismissed their application for review dated 21st September 2023 instead of filing the instant application. 19. A plain reading of Order 45 of the Civil Procedure Rules leaves no doubt that an application for review and an appeal are intended to be alternative remedies. See Nguruman Limited v Jan Bonde Nielsen & 2 others [2013] KECA 347 (KLR). 20. The Supreme Court of Kenya in Macharia & another v Kenya Commercial Bank Ltd & 2 others (Application 2 of 2011) [2012] KESC 8 (KLR) (23 October 2012) (Ruling) held that” “ The words “review” and “appeal” could not be used interchangeably at the litigant’s election when seeking a higher court’s intervention in a matter already decided by a lower court”. 21. On the foregoing, this court finds that to allow the Applicants’ application dated 9th May 2025 would undermine the finality in litigation in this case. 22. Consequently, this court need not belabour in determining whether the Applicants have met the prerequisite for grant of stay of execution pending the intended appeal. 23. In the premises, this court finds the Applicants’ Notice of Motion dated 9th May 2025 to be without merit and the same is dismissed with costs to the Respondent assessed at Kshs.30,000/=. 24. There shall be a stay of execution of 30 days. 25. It is hereby so ordered. RULING WRITTEN, DATED & SIGNED AT MACHAKOS THIS 24TH MARCH 2026 NOEL I. ADAGI JUDGE DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 24TH MARCH 2026 In the presence of:- https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7094/eng@2026-03-24 5

page 5 of 5