Elijah & 1 other v Noor & 2 others

vehicle in question registration number KCA 276M and other household goods on a date to be advertised(sic). e. That this Honorable Court allow the applicant to furnish the court with security in the form of a Bank Guarantee from Family Bank. f. That the appeal is an arguable appeal which stands to be prejudiced should the execution proceed and the appellant/ applicant prays that this application be allowed as prayed(sic). g. That the supplication be heard inter-partes on such date and time as this Honorable Court may direct. h. That the costs of this application abide the outcome of the appeal. i. That this Honorable Court be pleased to issue any other order and/or direction it may deem fit to grant in the circumstances. 2. The application is anchored by the grounds set out on its face and the supporting affidavit sworn by the applicant on even date. 3. The applicant contends that he has an arguable appeal with a high likelihood of success as per the annexed memorandum of appeal. 4. It is the applicant’s further contention that the delay in bringing the instant application has been occasioned by an MERU HCCC MISC. NO. E051 OF 2025 Page 2 of 7

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excusable mistake and not a deliberate act. That the delay in filing the appeal was occasioned by instructions that were being issued by his insurance company. 5. The application was opposed by the respondent vide his replying affidavit sworn on 18th November 2025. 6. The respondent contends that the application is not merited and has been brought to merely cause injustice and delay his enjoyment of the fruits of his regularly obtained judgment. 7. The respondent further contends that the application is an afterthought, having been brought 10 months after the judgment was delivered. 8. In a nutshell, the respondent contends that the applicant is an unworthy recipient of this court’s discretion for an order of stay of execution. 9. When the matter came up for directions under certificate of urgency, this court issued directions on 28 th May 2025 that there would be a stay of execution of the lower court’s decree, pending determination of the application, on condition that the applicant paid a sum of Ksh. 612,382.50 being half of the decretal sum. The said orders had a default clause, to the effect that if payment was not done within the time set, the stay orders would lapse automatically. MERU HCCC MISC. NO. E051 OF 2025 Page 3 of 7

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10. It is apparent that the applicant failed to comply with the orders, so the stay orders lapsed. No revival of the orders was sought. 11. Therefore, the only prayer that is outstanding now is that seeking leave to appeal out of time. 12. Parties were directed to file submissions, but as at the time of writing this ruling, only the respondent had complied. 13. 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 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.” 14. The principles to guide the court in such an application were set out in Lucy Wangari Mwangi & 6 others v Jacinta Kamuyu Githungu & another [2021] KEHC 4840 (KLR) where the decision in Mwangi vs Kenya Airways Ltd [2003] eKLR was quoted as follows; MERU HCCC MISC. NO. E051 OF 2025 Page 4 of 7

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“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.” 15. From the authority cited, it is clear that an order for stay of execution and extension of time to appeal is purely discretional, upon satisfaction that the same has been sought without unreasonable delay. If there is a delay, then the same ought to be explained in a satisfactory manner. 16. Consequently, this court finds the following issues for determination; a. Whether there has been inordinate delay in bringing the instant application. b. Whether a reasonable explanation has been offered for the delay. c. Whether the instant application is merited. 17. The trial court’s judgment was delivered on the 29 th August 2024. The instant application is dated 26th May 2025, 10 months after the delivery of the judgment. MERU HCCC MISC. NO. E051 OF 2025 Page 5 of 7

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18. This court is therefore invited to determine whether the 10 months that have lapsed amount to inordinate delay and whether this court should exercise its discretion to grant the orders sought. 19. The applicant has contended that the main reason for filing the appeal late in the day is because the instructions to appeal and/or negotiate the claim were to be issued by his insurance company. 20. The applicant does not state that they were unaware of the judgment in the lower court. 21. This court has taken note that application was only filed after the Notice of Proclamation dated 22nd April 2025 was issued. 22. The court has also noted the conduct of the applicant in failing to comply with the court’s directions to pay a sum of Kshs. 612,382.50/= being half of the decretal sum to the respondent as a condition for stay which order was issued on the 28th May 2025. 23. “Equity aids the vigilant and not the indolent” is a widely upheld maxim which falls squarely in the instant situation. 24. I am of the view that 10 months is inordinate delay for the applicant to sit on his right to appeal. The applicant only moved this court after the respondent sought to execute the MERU HCCC MISC. NO. E051 OF 2025 Page 6 of 7

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decree. It is apparent that the present application is just an attempt to delay the execution of the judgment and decree of the lower court, rather than a genuine attempt to exercise the right of appeal. 25. No plausible reason has been demonstrated to explain the delay in filing the appeal. A party who truly desires to appeal must exhibit such desire promptly. 26. From the foregoing, this court is not persuaded to exercise its discretion to grant on order for leave to appeal out of time. This may seem harsh, but the applicant can only blame himself or his insurer. Timeframes set by statute or any rule have a purpose, and that is to ensure expeditious disposal of cases. In this case, I am of the view that this is just an attempt to delay the conclusion of the litigation between the parties. 27. Having carefully considered the application and the arguments by the parties, this court finds that the instant application is devoid of merit and it is dismissed in its entirety with costs to the respondent. Dated, signed and delivered at Meru this 16 th day of July 2026 H. M. NYAGA JUDGE MERU HCCC MISC. NO. E051 OF 2025 Page 7 of 7

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