Kenya & 2 others v Dynah & 2 others

pending inter partes hearing and determination of this application. c. That this Honorable court grant a stay of execution of the judgment and decree of Honorable Habrovina Nyamweya (Adjudicator/Resident Magistrate) delivered on the 14th August 2025, in Meru SCCC No. E344 of 2002; DYNAH KINYA JSPHET VS KENYA WILDLIFE SERVICE pending inter partes hearing and determination of the intended appeal d. That this honorable court be pleased to grant the applicant leave to appeal out of time against the whole judgment and decree of Honorable Habrovina Nyamweya (Adjudicator/Resident Magistrate) delivered on the 14th August 2025 in Meru SCCC No. E344 of 2002; DYNAH KINYA JAPHET VS KENYA WILDLIFE SERVICE. e. The costs of this application be in the cause. 2. The application is grounded by the supporting affidavit sworn by one Benta Musima on even date. MERU MISC. CIVIL APPL E174 OF 2025 Page 2 of 10

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3. The gist of the instant application emanates from the judgment of the trial court being Meru SCCC No. E344 of 202; DYNAH KINYA JAPHET VS KENYA WILDLIFE SERVICE where the court ruled in favor of the respondent, and as a result of the same, the applicant being aggrieved by the said judgment seeks to appeal. 4. The applicant contends that the reason why the intended appeal has been brought so late in the day is because it lacked the requisite filing fees and thus the appeal could not be filed within the prescribed statutory timelines. 5. The applicant also contends that stay was granted in an application similar to the instant one being HCCCMISC E128/2025, KENYA WILDLIFE SERVICE V TERETHINA MWENGWA KIMATHI, but the said order was set aside by the court for misjoinder. 6. The application is opposed by vide the replying affidavit of the respondent sworn on the 17th March 2026. The respondent has deponed that the applicant has not provided MERU MISC. CIVIL APPL E174 OF 2025 Page 3 of 10

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any evidence to justify the delay and that the applicant is misusing the court process. 7. The respondent further contends that it is not reasonably practical that a government agency like the applicant could lack filing fees as alleged. For that reason, the respondent contents that the instant application is devoid of merit and prays for its dismissal. 8. The application was canvassed through written submissions, which I will not rehash. 9. The following issues fall for determination; a. Whether there has been inordinate delay and whether an order for extension of time should issue b. Whether the instant application is merited 10. Section 79G of the Civil Procedure Act provides as follows; “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 MERU MISC. CIVIL APPL E174 OF 2025 Page 4 of 10

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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.” 11. It is not in dispute that the judgment which is subject to the instant application was delivered on the 14 th August 2025, while the application was filed on 20th November 2025. 12. The applicant has contended that the main reason for filing the appeal late in the day is because it lacked the requisite filing fees. It has also been demonstrated that an application for stay of execution had been filed in HCCCMISC E128/2025, KENYA WILDLIFE SERVICE V TERETHINA MWENGWA KIMATHI, only that the corresponding order was set aside by the court for misjoinder. 13. This court associates itself with several other decisions made in applications of a similar nature, that an order for stay of MERU MISC. CIVIL APPL E174 OF 2025 Page 5 of 10

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execution and extension of time to appeal is purely discretional upon satisfaction that the same has been sought without unreasonable delay. This court relies on the case of Lucy Wangari Mwangi & 6 others v Jacinta Kamuyu Githungu & another [2021] KEHC 4840 (KLR) where a decision in Mwangi vs Kenya Airways Ltd [2003] eKLR was quoted as follows; “It is now well settled that 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 or not 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.” 14. Applying the above principles to the present case, the judgment herein was delivered on 14/08/2025 and the applicant filed the instant application on or about the MERU MISC. CIVIL APPL E174 OF 2025 Page 6 of 10

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21/11/2025. This is about 3 months and a couple of days outside the time limited for filing an appeal. The applicants explained to the court that the reason why they delayed filing the appeal on time is because they were raising money to pay filing fees to lodge an appeal. The applicant herein has satisfactorily explained the reasons that led to the delay. The respondent averred in her affidavit that the applicant is a government institution which is financially upright and had an independent counsel during the lower court trial. In my view, the fact that the applicant had so many files of similar nature may have caused the failure to file the appeal on time. 15. This court notes that the applicant had initially filed HCCCMISC E128/2025, KENYA WILDLIFE SERVICE V TERETHINA MWENGWA KIMATHI seeking similar orders of stay in E327, E329, E332, E334, E336, E338, E340, E342, E344 and E347. Having perused the resultant ruling as annexed to the applicant’s application, it is express that the said ruling disassociated itself with the listed files for the MERU MISC. CIVIL APPL E174 OF 2025 Page 7 of 10

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reason that no consolidation had been made in the trial court. 16. From the foregoing, this court finds that there has been no inordinate delay and the applicant deserves a chance to ventilate its intended appeal. 17. A look at the draft appeal, l see that it raises arguable issues. Whether the instant application is merited 18. In conclusion, this court finds that it is in the interests of justice to allow the applicant prosecute the intended appeal as has been demonstrated by the annexed Memorandum of Appeal which raises triable issues. 19. This court therefore makes the following orders; a. That the application dated 21st November 2025 is hereby merited and succeeds b. That an order of stay judgment and decree of execution delivered on of the the 14 th August 2025, in Meru SCCC No. E344 of 2025 is MERU MISC. CIVIL APPL E174 OF 2025 Page 8 of 10

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hereby issued pending the hearing and determination of the intended appeal. c. That the applicant is hereby ordered to file and serve the memorandum of appeal within 7 days from the date hereof. d. That on failure to comply with orders (c) above, the stay of execution hereby issued shall lapse automatically. e. The costs of this application shall abide by the outcome of the appeal and if no appeal is filed by the applicant. Dated, Signed and Delivered at Meru This 14 th Day of July 2026 H. M. NYAGA JUDGE MERU MISC. CIVIL APPL E174 OF 2025 Page 9 of 10

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