Anangwe v Nyongesa

f. g. That this Honourable Court also do order the Respondent to return the subject motor vehicle registration number KAX 046 K which he unlawfully took and drove away without the Applicant’s authority on 28th July 2026 while parked at the Applicant’s business premises at Malaba town That the costs of this Application be in the cause 2. The instant Application was premised on the grounds, on the face of it, which grounds were reiterated in the Defendant/Applicant’s Supporting Adavit sworn on 18th August 2026. 3. The Defendant/Applicant deponed that he had failed to comply with the conditional stay of execution pending appeal granted to him by this court on 11th August 2026 as ordered due to his inability to raise the entire amount due to his funds being committed in a business transaction, which funds will be available within 45 days from the date of ling the instant Application. 4. He added that the Plainti/Respondent ought to return to him the said motor vehicle, since the Plainti/Respondent reportedly unlawfully took possession of the said motor vehicle on 28th June 2026 from his business premises in Malaba. 5. The Defendant/Applicant also deponed that no prejudice incapable of compensation by an award of costs will be occasioned to the Plainti/Respondent if the orders sought are granted, and that he had made the instant Application in good faith without unreasonable delay. 6. The Plainti/Respondent neither led Grounds of Opposition nor a Replying Adavit in opposition of the instant Application. Further, whereas this Court directed the parties herein to le their respective submissions, neither party led them. Analysis and Determination 7. This Court has carefully considered the instant Application in its entirety. It is not lost to this Court that the instant Application is unopposed. Be that as it may, it is still this Court’s duty to determine whether or not an unopposed Application before it is merited. This was well explained by the Court of Appeal in Wanyoike & another v Kamau & another (Miscellaneous Civil Application E032 of 2021) [2023] KECA 1017 (KLR) as follows: “ 3. The respondents did not le a replying adavit or submissions in opposition to the motion and so the same is unopposed. That is not to say, however, that the application should be allowed as a matter of course and the Court is still enjoined to consider the application and determine it on its merits.” 8. It is against this backdrop that this court nds that the only issues for determination are whether the order for extension of time sought by the Defendant/Applicant is merited, and whether the Plainti/ Respondent should return the suit motor vehicle to the Defendant/Applicant. 9. On the order for extension of time for the Defendant/Applicant to comply with the conditional stay of execution pending appeal order granted to him by this court on 11th August 2026. , Order 50 Rule 6 of the Civil Procedure Rules provides as follows: “ Where a limited time has been xed for doing any act or taking any proceedings under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/887/eng@2026-09-17 2

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enlargement maybe ordered although the application for the same is not made until after the expiration of the time appointed or allowed.” 10. The Supreme Court in Nicholas Kiptoo Arap Korir Salat v. Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR stated as follows on the underlying principles applicable to extension of time applications: “ Extension of time being a creature of equity, one can only enjoy it if he acts equitably: he who seeks equity must do equity. Hence, one has to lay a basis that he was not at fault so as to let time to lapse. Extension of time is not a right of a litigant against a court, but a discretionary power of the courts, which litigants have to lay a basis where they seek courts to grant it.” 11. 12. The Supreme Court in the Nicholas Salat case (supra) also set out the conditions for extension of time to le an appeal as follows: a. 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; 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 to 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 suered by the respondents if the extension is granted; f. Whether the application has been brought without undue delay; and g. Whether in certain cases, like election petitions, public interest should be a consideration for extending time. The conditions above on applications for extension of time to le an appeal apply to applications under Order 50 Rule 6 of the Civil Procedure Rules for extension of time to comply with a court order, as was acknowledged by the Court of Appeal in County Government of Kirinyaga & another v Kenya Medical Practitioners, Pharmacists & Dentists Union (Civil Appeal (Application) E002 of 2023) [2025] KECA 958 (KLR) thus: “ 9. 13. The principles applicable to an application for extension of time to le an appeal out of time are the same as those applicable to extension of time to comply with an order of the Court. An applicant must lay a basis for the application and persuade the Court to nd in its favour that it/or they were not at fault and that they did not just let the time to lapse. There must be advanced the reason for the delay, which explanation must be reasonable and to the satisfaction of the Court. The power of the Court to extend time is not an absolute right, it is discretionary power.” It is clear from the authorities above that this court has the discretion to extend time for compliance with any order provided that discretion is not exercised whimsically or capriciously. That discretion must be exercised judiciously based on the circumstances of a particular case for the ends of justice https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/887/eng@2026-09-17 3

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to be met. The Applicant also has a duty to give a reasonable reason for the non-compliance to the satisfaction of the court; he must move the court without undue delay, and he must demonstrate that the Respondent will not suer any prejudice if the extension order is granted. 14. This court has given due regard to the principles above on Applications for extension of time to comply with a court order. 15. The Defendant/Applicant deponed that he failed to meet the terms of the conditional stay of execution pending appeal order herein due to his inability to raise the entire amount of Kshs. 500,000/= due to his funds being committed in a business transaction, which funds will be available within 45 days from the date of ling the instant Application. 16. Whereas that sounds as a reasonable and satisfactory reason why he has not deposited the security of Kshs. 500,000/=, the Defendant/Respondent has not explained why he is yet to deposit in this court the suit motor vehicle’s original logbook, which is in his custody. He has also not taken any steps in paying part of the security he is required to deposit in this court to demonstrate his good faith in complying with the order he seeks to extend. 17. The Defendant/Applicant’s failure to deposit the suit motor vehicle’s original logbook in this court, and his failure to take partial steps in paying part of the security ordered to be deposited in court reeks of the Defendant/Applicant’s attempt to delay the Plainti/Respondent from enjoying the fruits of his judgment. 18. The often cited saying: ‘Justice delayed is justice denied’ shows how delays in the administration of justice must be frowned upon by any court. A court must at all times decline the invitation to engage in acts calculated to delay justice. In the words of Warsame J. (as he then was) in London Distillers (K) Ltd V Philip Kipchirchir & 2 Others [2007] eKLR that; “ In my view delay is aront to the administration of justice, delay is something to be deplored, delay is repugnant to justice, delay spoils the image of the judiciary, delay ferments public outcry against the judiciary, delay creates disharmony between the consumers of justice and the courts. Delay is a disguised disinterest in the disposal of the suit. Delay creates desolate and despair in the minds of the party aected by the delay. It is a despicable attempt to enslave a party to an endless contest. That contest must come to an end if the instigator is unwilling to end it…” 19. Be that as it may, the Defendant/Applicant has given a reasonable and satisfactory reason for failing to deposit the security of Kshs. 500,000/= in this court as directed. 20. On whether the Defendant/Applicant has moved this court without undue delay, the orders the Defendant/Applicant seeks to extend time for their compliance were issued on 11th August 2026 only for the Defendant/Applicant to move the court on 19th August 2026 for the extension of the said orders. That is a dierence of around seven (7) days. Clearly, a seven (7) days' dierence does not constitute unreasonable delay in moving a court for discretionary orders. 21. Given that the Plainti/Respondent already has possession of the suit motor vehicle, the only prejudice to be occasioned to him if the order for extension of time sought is granted is that the Plainti/ Respondent will have to wait longer to enjoy his general damages of Kshs. 100,000/=. However, that prejudice will be compensated through interest earned on the general damages if the appeal is ultimately dismissed. This demonstrates that no prejudice incapable of being compensated by an order of costs or interest on the general damages will be occasioned to the Plainti/Applicant if the order of extension of time is granted. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/887/eng@2026-09-17 4

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22. It is also noteworthy that the Defendant/Applicant gave an undertaking that he would raise the sum of Kshs. 500,000/= within 45 days from the date of ling the instant Application. A quick calculation shows that the 45 days will lapse on 03rd October 2026, which is barely two weeks away. 23. In the circumstances, and balancing the parties' herein interests, this Court directs the Defendant/ Applicant to comply with the conditional stay of execution orders pending appeal herein to 03rd October 2026. 24. This Court now turns to the question of whether the Plainti/Respondent should release the suit motor vehicle to the Defendant/Applicant. 25. The Plainti/Respondent took possession of the suit motor vehicle in line with the terms of this Court’s judgment delivered on 30th April 2026. The orders arising from the said judgment were stayed on 11th August 2026 on condition that the Defendant/Applicant complies with the conditional stay of execution pending appeal order herein, which he seeks to extend. 26. In view of the fact that the Defendant/Applicant is yet to comply with the conditional stay of execution pending appeal order herein, the Plainti/Applicant’s action of repossessing the suit motor vehicle on 28th July 2026 was lawful. The Defendant/Applicant can only seek to have custody of the suit motor vehicle after complying with the conditional stay of execution pending appeal order herein. Ordering otherwise will render the conditional stay of execution pending appeal order herein nugatory. Determination 27. 28. The foregoing inclines this court to make the following orders: a. The Defendant/Applicant is hereby ordered to comply with the conditional stay of execution orders pending appeal herein on or before 03rd October 2026 b. The Plainti/Respondent is ordered to return the suit motor vehicle to the Defendant/Applicant upon the Defendant/Applicant complying with order (a) above c. In the event the Defendant/Applicant fails to comply with order (a) above, the Plainti/Respondent will be at liberty to proceed with the execution process without further reference to this court d. The Plainti/Respondent will have the costs of this Application It is so ordered. RULING READ, SIGNED AND DELIVERED IN OPEN COURT AT BUNGOMA THIS 17TH DAY OF SEPTEMBER 2026. T. O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Ms. Nekesa h/b for Wasilwa for the Defendant/Applicant Mr. Shikhu for the Plainti/Respondent Plainti/Respondent https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/887/eng@2026-09-17 5

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C/A; Mr. Rioba https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/887/eng@2026-09-17 6

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