Anton Peter Wachiaji Otieno & 1 other v Jane Opere & 1 other

462,000/= to be secured by depositing the same in a joint interest earning account in the names of the applicant and the respondent pending hearing and determination of the intended appeal. [d] Stay assessment of costs Homa Bay CMCC No. E049 of 2022: Jane Anyango Opere v Anton Peter Wachiaji Otieno & Isaiya Onyango be granted pending hearing and determination of the intended appeal . [e] The costs of this application do abide the outcome of the intended appeal. [2] The application was supported by the Affidavit of the 1 st applicant, Anton Peter Wachiaji Otieno, sworn on 13th February 2025. He averred that he was informed by his Advocates that judgment had been entered in Homa Bay CMCC No. E049 of 2022 on 20th December 2024 in which they were found 70% liable and were required to pay Kshs. 462,000/= to the respondent. He further averred that on 20 th December 2024, the offices of their erstwhile Advocates had closed for the December holidays, and therefore they were only able to access the judgment on 31 st January 2025, when it was posted by the trial court. [3] The 1st applicant further deposed that at that time, he was out of the country for medical reasons and could not be reached by his Advocates. He also mentioned that he later learnt that the 2nd applicant could not be contacted because he had lost his phone. [4] At paragraph 8 of the Supporting Affidavit, the 1 st applicant averred that, being dissatisfied with the judgment, 2|Page HCCMISC. E014 OF 2025 RULING

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they instructed M/s Kairu McCourt & Company Advocates to appeal against liability; their stance being that his vehicle did not cause the accident the subject of Homa Bay CMCC No. E049 of 2022. He further averred that their intended appeal is arguable in that it raises important points of law, and therefore has strong prospects of success. [5] The 1st applicant acknowledged that the deadline to file an appeal from the judgment in Homa Bay CMCC No. E049 of 2022 expired on 20th January 2025. He however explained that the delay was inadvertent due to his ill health and urged the Court not to penalize him for it. He also prayed for stay orders, contending that he may not be able to recover the decretal sum from the respondent, as no evidence was produced to show that she is a person of means. [6] In response, the respondent filed a Replying Affidavit sworn on 6th April 2025, averring that the application is an afterthought, merely intended to deny her the fruits of her judgment. She stated that the application lacks merit as no decree had been extracted, and therefore there was no imminent threat of execution. She further asserted that, since there is no dispute that the accident occurred or that she sustained grievous injuries, it is only just that she be allowed to enjoy the fruits of her judgment. [7] At paragraph 6 of her Replying Affidavit, the respondent stated that, should the court be inclined to grant stay of execution, the applicants should be directed to pay her at least three-quarters of the decretal sum together with Party-and- 3|Page HCCMISC. E014 OF 2025 RULING

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Party costs, and the balance be deposited in a joint interest earning account in the names of the Advocates for the parties. [8] The applicants urged their application by way of submissions dated 16th June 2025. On their prayer for leave to appeal out of time, they reiterated their assertion that the delay was inadvertent, as the 1st applicant was out of the country for treatment and was not informed in time that the judgment had been delivered. They submitted that their intended appeal is arguable and has high chances of success. [9] In respect of their prayer for stay of execution, the applicants made reference to Order 42 Rule 6 of the Civil Procedure Rules, and submitted that they will suffer substantial loss if the respondent is paid the decretal sum of Kshs. 462,000/=. In their submission there is no assurance she will be able to refund the funds should the appeal succeed. They urged the Court to note that the respondent has not shown in her response that she is a person of means capable of reimbursing the amount. The appellants relied on the case of G.N. Muema P/A (Sic) Mt View Maternity & Nursing Home v Miriam Maalim Bishar & another [2018] KEHC 8780 (KLR) where the court held that the absence of affidavit evidence demonstrating ability to refund the decretal sum leaves the court uncertain on that issue and the court is therefore justified in holding that the applicant would suffer substantial loss. [10] Lastly, the applicants submitted that they are willing to comply with any conditions that will be set by court on security, including depositing the decretal sum in a joint interest hearing 4|Page HCCMISC. E014 OF 2025 RULING

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account pending the hearing and determination of the appeal. They further indicated that their insurers, Directline Assurance Company Limited, is also ready and willing to deposit the decretal sum in a joint interest earning account pending the hearing and determination of the appeal. [11] I have considered the application and the response filed thereto. I have likewise considered the written submissions filed by counsel for the parties. The broad issued for determination are: [a] Whether sufficient justification has been shown by the applicants to warrant extension of time to file their intended appeal; and, [b] Whether in the circumstances an order for stay of execution ought to be issued. A. On extension of time to file the intended appeal: [12] The law is explicit that appeals from the subordinate court are to be filed within thirty (30) days from the date of the delivery of the decision one intends to Appeal against. Nevertheless, the Court has the discretion to admit an appeal out of time if justification is shown for the exercise of such discretion. In this regard Section 79G Civil Procedure Act provides: 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. [13] The Supreme Court settled the guiding principles in the case of Salat v Independent Electoral and Boundaries 5|Page HCCMISC. E014 OF 2025 RULING

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Commission & 7 others (Application 16 of 2014) [2014] KESC 12 (KLR) (Civ) (4 July 2014) (Ruling) where it was held: “85.This being the first case in which this court is called upon to consider the principles for extension of time, we derive the following as the under-lying principles that a court should consider in exercise of such discretion: Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court; A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court; Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis; Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court; Whether there will be any prejudice suffered by the respondents if the extension is granted; Whether the application has been brought without undue delay; and Whether in certain cases, like election petitions, public interest should be a consideration for extending time….” [14] Hence, the decision on whether to grant leave for an appeal to be filed out of time is an exercise of discretion which should be based on reason and not whims or caprice. The Court of Appeal in the case of Paul Musili Wambua v Attorney General & 2 others [2015] KECA 471 (KLR) reiterated that; “…it is now well 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. However, in the exercise of such discretion, the court must act upon reason(s) not based on whims or caprice. In general the matters which a court takes into account in deciding whether to grant an extension of time are; the length of the 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. (See MUTISO V MWANGI) [1999] 2 EA 231. In other words Rule 4 of the Court of Appeal Rules donates unfettered discretion and as long as the discretion is exercised judiciously, a single Judge would be entitled to consider any other relevant material…” [15] It is not disputed that the judgment of the lower court was delivered on the 20th December 2024 and therefore the appeal ought to have been filed by 19 th January 2025. It is also not in dispute that the instant application was not filed until the 14 th March 2025. The explanation for the delay by the 1 st applicant 6|Page HCCMISC. E014 OF 2025 RULING

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was that their former advocate was away for Christmas holidays; that the judgment was only available for download on the CTS platform on 31st January 2025; and that the 1st applicant was abroad for medical treatment and unavailable to give instructions. It is my finding that the explanation is plausible in the circumstances. [16] The applicants also demonstrated that their intended appeal is arguable. They annexed a draft Memorandum of Appeal to their Supporting Affidavit; and having perused the same, it cannot be said that the intended appeal is frivolous. It is my finding that the delay has been sufficiently explained and that leave ought to be granted for the filing of the intended appeal out of time. B. Whether, in the circumstances an order of stay of execution ought to issue: [17] Stay of execution is provided for under Order 42 Rule 6 of the Civil Procedure Rules. It states: Stay in case of appeal [Order 42, rule 6] (1) 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. (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. 7|Page HCCMISC. E014 OF 2025 RULING

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[18] The above rule thus provides that before a court can grant an order of stay of execution pending hearing and determination of the appeal, it must be satisfied that there is proof of substantial loss to be suffered by the applicant; that the application was made without unreasonable delay; and that the applicant is ready to provide such security as the court may impose. [19] The key consideration in the exercise of discretion to grant stay is whether the applicant demonstrated the likelihood of suffering a substantial loss if the stay is denied. In the case of Kenya Shell Limited v Benjamin Karuga Kibiru & another [1986] KECA 94 (KLR) the Court of Appeal held: “…It is also true to say that, in consideration an application for a stay, the court doing so must address its collective mind to the question of whether to refuse it would, as Mr Kwach, urges, render the appeal nugatory… As I said I accept the proposition that if it is shown that execution or enforcement would render a proposed appeal nugatory, then a stay can properly be given. Parallel with that is the equally important proposition that a litigant, if successful, should not be deprived of the fruits of a judgment in his favour without just cause…” [20] Further, it is now trite that execution of the decretal sum cannot, of itself, be counted as a substantial loss since the winning party has a right to enjoy the fruits of his/her judgment. In Jessikay Enterprises Ltd v George Kahoto Muiruri [2022] KEHC 26949 (KLR) held: “…Execution is a lawful process and the mere fact that it is carried out is not ipso facto evidence of substantial loss. Equally, the right of execution where it has accrued cannot be stayed, save for a just cause, and with conditions…” [21] In this case, the applicants have demonstrated that their intended appeal is arguable, and that unless an order of stay is granted the applicants may suffer substantial loss in the event of a successful appeal. Moreover, the applicants are ready and 8|Page HCCMISC. E014 OF 2025 RULING

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willing to provide security by depositing the decretal sum in a joint interest-earning account pending the hearing and determination of the proposed appeal. [22] In the result, I find merit in the application dated 13 th March 2025. The same is hereby allowed and orders granted as follows: [a] THAT leave be and is hereby granted to the applicants to file their intended appeal out of time against the judgment of the delivered in Homa Bay CMCC No. E049 of 2022: Jane Anyango Opere v Anton Peter Wachiaji Otieno & Isaiya Onyango; [b] THAT an order of stay of execution be and is hereby granted to stay the intended execution of the judgment, decree, costs and interests issued in Homa Bay CMCC No. E049 of 2022: Jane Anyango Opere v Anton Peter Wachiaji Otieno & Isaiya Onyango pending the hearing and determination of the intended appeal on condition that entire decretal sum of Kshs. 462,000/- be secured by depositing the same in a joint interest earning account in the names of counsel on record for the applicant and the respondent within 45 days from the date hereof. [c] THAT further proceedings in Homabay CMCC No. E049 of 2022: Jane Anyango Opere v Anton Peter Wachiaji Otieno & Isaiya Onyango including assessment of costs be and are hereby stayed pending hearing and determination of the intended Appeal. 9|Page HCCMISC. E014 OF 2025 RULING

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[d] THAT the costs of the application do abide the outcome of the intended appeal. Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 29 TH DAY OF MAY 2026 ……………………………………… HON. OLGA SEWE JUDGE 10 | P a g e HCCMISC. E014 OF 2025 RULING

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