Victor Muli & 1 other v Benedict Michael Wambua

awarded general damages of Kshs. 350,000/=, special damages of Kshs. 5,550/=, together with costs and interest. 4. Being dissatisfied with the award on quantum, they intend to appeal against the Judgment believing that their intended appeal has a high chance of success. 5. The Applicants submitted that unless an order of stay of execution is granted, the Respondent is likely to execute the decree upon the lapse of the thirty-day stay granted by the trial court, thereby rendering the intended appeal nugatory. 6. They further contend that the decretal sum is substantial and express apprehension that, if paid to the Respondent, recovery of the same may not be possible should the intended appeal succeed, as the Respondent has neither disclosed nor furnished evidence of his financial means. 7. The Applicants submitted that their insurer is ready, willing and able to furnish security for the due performance of the decree by way of a Bank Guarantee issued by a reputable financial institution. 8. They maintain that the applications were brought in good faith and without unreasonable delay and that the Respondent will not suffer any prejudice if the orders sought are granted. 9. The application is opposed through the Replying Affidavit of Benedict Michael Wambua sworn on 20th September 2024. 10. The Respondent deponed that he does not oppose the Applicants' constitutional right to appeal against the judgment of the trial court and consequently, does not oppose the prayer seeking leave to file the intended appeal out of time. 11. The Respondent submitted that while the Applicants are entitled to pursue an appeal, he is equally entitled to the security of the judgment awarded in his favour pending the hearing and determination of the intended appeal. 12. The Respondent further deponed that he is opposed to the Applicants' proposal to furnish security by way of a Bank Guarantee. 13. The Respondent deponed that the proposed Bank Guarantee was issued in the year 2023 and is not limited to this particular matter, but is capable of being utilised in numerous other cases. 14. It was further deponed that there is no assurance that the decretal amount will remain secured by the time the intended appeal is heard and determined. Page 2 of 6

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15. The Respondent deponed that the Court should direct that the decretal sum of Kshs. 355,550/= be deposited in a joint interest-earning account in the names of the advocates for the parties, contending that such an arrangement would adequately safeguard the interests of both parties pending the determination of the intended appeal. 16. The Respondent deponed that should the Court be inclined to grant leave to appeal out of time, it should direct the Applicants to file the intended appeal within a specified period to avoid unnecessary delay. 17. The Applicants filed written submissions in support of the application while the Respondent elected to rely on his Replying Affidavit. 18. The Applicants submitted that they had satisfactorily explained the delay in filing the intended appeal and that the same was neither inordinate nor deliberate. 19. They further submitted that they had met the threshold for grant of stay of execution under Order 42 Rule 6 of the Civil Procedure Rules and that the Respondent would not suffer any prejudice if the orders sought were granted, particularly because they had expressed willingness to furnish security for the due performance of the decree. 20. I have considered the Notice of Motion, the Affidavits on record and the submissions filed as well as the authorities relied upon; I am of the view that the following issues fall for determination. i. Whether the Applicants have established sufficient cause for extension of time to file the intended appeal out of time; and ii. Whether the Applicants have satisfied the conditions for the grant of stay of execution pending appeal. 21. The prayer for extension is anchored on Section 79G of the Civil Procedure Act, which provides that: “Every appeal from a subordinate court to the High Court shall be filed within thirty days from the date of the decree or order appealed against... 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.” 22. It is axiomatic that the Court’s jurisdiction to enlarge time is discretionary and must be exercised judiciously upon consideration of the circumstances of each case. 23. In First American Bank of Kenya Ltd vs. Gulab P Shah & 2 Others Nairobi (Milimani) HCCC NO. 2255 of 2000 [2002] 1 EA 65, the Court set out the factors to be considered in deciding whether or not to grant such an application: the explanation, Page 3 of 6

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if any, for the delay, the merits of the contemplated action, whether the matter is arguable one deserving a day in court or whether it is a frivolous one which would only result in the delay of the course of justice, whether or not the Respondent can adequately be compensated in costs for any prejudice that he may suffer as a result of a favourable exercise of discretion on the part of the applicant. 24. Similarly, in Daphne Parry v Murray Alexander Carson [1963] EA 546, the Court observed that although the requirement for "sufficient reason" should receive a liberal interpretation to advance substantive justice, the discretion must nevertheless be exercised on sound judicial principles. 25. In the present case, Judgment was delivered on 24 th July, 2024, whereas the present application was filed on 28th August 2024. 26. The delay, therefore, is approximately five days beyond the statutory period prescribed under Section 79G of the Civil Procedure Act. 27. The Applicants have explained that the delay arose because the instructing client issued instructions to appeal after the prescribed timeline had lapsed. 28. The Applicants further submitted that, although the Respondent maintained that they had not annexed any written instructions indicating the date on which the instructions to appeal were received, there is no legal requirement that such instructions be in writing or be exhibited to the Court and relied on Kenya Power & Lighting Company Limited v Rose Anyango & Another [2020] eKLR, where the Court held that the absence of written instructions to an advocate is not fatal to an application for extension of time, provided that the delay has been satisfactorily explained. 29. The Applicants further submitted that no prejudice would be occasioned to the Respondent if leave were granted and relied on Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2013] eKLR, where the Court emphasized that procedural lapses which do not occasion prejudice ought not to defeat substantive justice. 30. I have considered the explanation offered by the Applicants. In my view, the delay of approximately five days cannot be considered inordinate. 31. The explanation tendered has not been challenged by the Respondent, who has expressly stated that he does not oppose the prayer seeking leave to file the intended appeal out of time but rather, his opposition is confined to the nature of the security proposed pending appeal. 32. Considering such concession, I am therefore satisfied that the Applicants have demonstrated good and sufficient cause within the meaning of Section 79G of the Civil Procedure Act. I therefore find merit in the prayer for extension of time. Page 4 of 6

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33. On the prayer for stay of execution pending appeal, Order 42 Rule 6(2) of the Civil Procedure Rules provides that no order for stay shall issue unless the Court is satisfied that substantial loss may result unless the order is made, that the application has been brought without unreasonable delay and that the applicant has furnished such security as the Court may order for the due performance of the decree. 34. The principles governing stay of execution pending appeal are well settled. 35. In Butt v Rent Restriction Tribunal [1982] KLR 417, the Court held that the power to grant or refuse a stay of execution is discretionary and should be exercised in such a manner that, where appropriate, the subject matter of the appeal is preserved so that the appeal, if ultimately successful, is not rendered nugatory. 36. The Applicants contend that unless execution is stayed, the Respondent may proceed with execution, thereby rendering the intended appeal nugatory. 37. They further submitted that the Respondent has not disclosed his financial means and may therefore be unable to refund the decretal sum should the intended appeal succeed. They relied on Edward Kamau & Another v Hannah Mukui Gichuki & Another [2015] eKLR in support of the proposition that where a respondent fails to disclose his means, the Court may infer that repayment of the decretal sum is doubtful. 38. I note that although the Respondent opposed the form of security proposed by the Applicants, he did not place before the Court any evidence of his financial ability to refund the decretal sum should the appeal ultimately succeed. 39. In the circumstances of this case, I am persuaded that the Applicants have demonstrated the likelihood of substantial loss if execution proceeds before the intended appeal is heard and determined. I have also found that the application was filed without unreasonable delay. 40. On the issue of security, the Applicants proposed to furnish a Bank Guarantee through their insurer. 41. The Respondent, while not opposing the grant of stay, objects to the proposed Bank Guarantee on the ground that it was issued in the year 2023 and is not specific to this matter. 42. He instead urges the Court to order that the decretal sum be deposited in a joint interest-earning account in the names of the advocates for the parties. Page 5 of 6

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43. The purpose of security is to balance the competing interests of the parties by preserving the Respondent's right to enjoy the fruits of his judgment while safeguarding the Applicants' right of appeal. 44. In the present case, I find the Respondent's proposal to deposit the decretal sum in a joint interest-earning account to be the more appropriate form of security, as it adequately protects the interests of both parties pending the determination of the appeal. 45. I am satisfied that the Applicants have met the requirements for the grant of stay under Order 42 Rule 6 of the Civil Procedure Rules, subject to appropriate conditions as to security. I allow the Notice of Motion dated 28th August 2024 on the following terms: a. Leave is hereby granted to the Applicants to file and serve the Memorandum of Appeal out of time within seven (7) days from the date of this ruling; b. There shall be a stay of execution of the Judgment and Decree in Machakos CMCC No. E349 of 2023 pending the hearing and determination of the intended appeal upon condition that the Applicants deposit the decretal sum of Kshs. 355,550/= in an interest-earning joint account in the names of the advocates for the parties within forty-five (45) days from the date hereof. In default, the order of stay shall automatically lapse; c. The costs of this application shall abide the outcome of the appeal. Delivered via Microsoft Teams this 16th day of July 2026 at Mombasa High Court Emmanuel Bitta Judge of the High Court Delivered in the presence of: C/A Nechesah Rayani h/b for Njoroge for the Applicant N/A for the Respondent Page 6 of 6

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