https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12035

Hussein v Tandasi & another (Miscellaneous Civil Application E265 of 2025) [2026] KEHC 12035 (KLR) (24 July 2026) (Ruling) Neutral citation: [2026] KEHC 12035 (KLR) Republic of Kenya In the High Court at Mombasa Miscellaneous Civil Application E265 of 2025 J Ngaah, J July 24, 2026 Between Abdalla Hussein Applicant and Musali Tandasi 1st Respondent John Moki Jumaa 2nd Respondent Ruling 1.By a Notice of Motion dated 20th August 2025, brought under the inherent powers of this Court, sections 1A, 1B, 3A and 79G of the Civil Procedure Act, and Order 42 Rule 6(2) and Order 50 Rule 5 of the Civil Procedure Rules, 2010, the Applicant, Abdalla Hussein, seeks the following substantive orders:(a)an interim order of stay of proceedings in Mombasa Chief Magistrate's Civil Suit No. E903 of 2025, Musali Tandasi v Takaful Insurance of Africa, pending the inter partes hearing of the application;(b)leave to appeal out of time against the judgment and decree delivered on 13th February 2025 in Mombasa Chief Magistrate's Civil Suit No. 710 of 2019, Musali Tandasi v John Moki Jumaa & Abdalla Hussein;(c)an order of stay of proceedings in Mombasa MCCC No. E903 of 2025 pending the hearing and determination of the intended appeal; and(d)costs of the application. 2.The application is supported by the affidavit of Dolphine Moindi sworn on 20th August 2025. The deponent describes herself as an advocate of this Honourable Court and the Legal Officer of Takaful Insurance of Africa Limited ("the insurer"), the instructing client on behalf of the Applicant, its insured. Background 3.The primary suit, Mombasa MCCC No. 710 of 2019, was instituted by the 1st Respondent against John Moki Jumaa (the 2nd Respondent herein) and the Applicant, as 1st and 2nd Defendants respectively, seeking compensation for injuries sustained in a road traffic accident that occurred on 28th September 2014 along the Nairobi–Mombasa Road, involving motor vehicle registration number KBA 390B, in which the 1st Respondent was travelling as a passenger, and motor vehicle registration number KAT 023V. 4.The Defendants were served with summons to enter appearance but did not do so, and an ex parte judgment was entered against them jointly and severally on 26th February 2021 in the sum of Kshs. 3,802,000. The Applicant subsequently applied to set aside that judgment and for leave to defend the suit out of time. That application appears to have been allowed, and a defence was filed on his behalf denying, among other things, that he was the registered owner of either motor vehicle. A fresh judgment on the merits was thereafter delivered on 13th February 2025 by Hon. J.B. Kalo, Chief Magistrate, again holding the Applicant and the 2nd Respondent jointly and severally liable, this time in the sum of Kshs. 4,353,035, comprising general damages of Kshs. 4,000,000, diminution of earning capacity of Kshs. 100,000, special damages of Kshs. 2,000, and costs and interest. 5.The Applicant avers that the firm of Garane & Somane Advocates, which had been instructed by his insurer to act for him in the primary suit, did not inform him or the insurer of the outcome of that judgment. 6.The 1st Respondent, through the firm of Mathew Nyabena & Co. Advocates, subsequently instituted a declaratory suit, Mombasa MCCC No. E903 of 2025, against the Applicant's insurer, Takaful Insurance of Africa, seeking to recover Kshs. 3,000,000, being the insurer's statutory limit of liability under the Insurance (Motor Vehicles Third Party Risks) Act. It is the Applicant's case that it is from the pleadings in this declaratory suit that he and his insurer learnt, for the first time, of the judgment in the primary suit. 7.Upon discovering that the thirty-day period prescribed under section 79G of the Civil Procedure Act for filing an appeal to this Court had already lapsed, the Applicant, through his insurer, instructed the firm of Macharia, Burugu & Company Advocates, who filed the instant application on 20th August 2025. The Applicant's case 8.The Applicant contends that there is no delay in filing the application or, in the alternative, that any delay is adequately explained, since he was in the dark as to the outcome of the primary suit until he was served with the pleadings in the declaratory suit, at which point he promptly instructed new advocates and filed this application. He further contends that the intended appeal raises weighty and arguable grounds, principally that the trial court erred in holding both Defendants jointly and severally liable when, on its own analysis of the evidence, only the 1st Defendant in the primary suit ought to have been found liable, and that the appeal will be rendered nugatory if the declaratory suit is permitted to proceed to judgment before the appeal is heard. He relies on Paul Musili Wambui v Attorney General & 2 Others [2015] eKLR, Sammy Mwangi Kiriethe & 2 Others v Kenya Commercial Bank Ltd [2020] eKLR, and Kamlesh Mansukhalal Damji Patni v Director of Public Prosecutions & 3 Others [2015] eKLR, among other authorities, in support of a liberal approach to the grant of extensions of time. The 1st Respondent's opposition 9.The application is opposed. In his Replying Affidavit sworn on 18th September 2025, the 1st Respondent avers that his advocates duly notified the Applicant's erstwhile advocates of the judgment and of the intention to file the declaratory suit vide correspondence dated 16th May 2025 (exhibits "MT5" and "MT6"), and that neither the Applicant nor his insurer responded to that notice or took any step to protect their interest before the declaratory suit was set down for hearing. He contends that the application is an afterthought and a reaction to the declaratory suit, that the cumulative delay is inordinate and inexcusable, and that he stands to be deprived of the fruits of a judgment he has pursued since the accident occurred in 2014, some eleven years ago. 10.In his submissions filed on 21st October 2025, the 1st Respondent relies on Gichana Gathuku v David Komu & 3 Others, Civil Application No. 267 of 2002, for the proposition that inaction by counsel does not qualify as an excusable mistake that would normally be visited upon a client, and on Rajesh Rughani v Fifty Investments Ltd & Another [2005] eKLR for the proposition that it is not enough for a party simply to accuse his advocate of a failure to inform, as though there were no reciprocal duty on the client to pursue his own matter. Issues for determination 11.Two issues arise: first, whether the Applicant has demonstrated good and sufficient cause entitling him to leave to appeal out of time under section 79G of the Civil Procedure Act; and second, whether, and on what basis, this Court may grant an order staying proceedings in Mombasa MCCC No. E903 of 2025. Leave to appeal out of time 12.Section 79G of the Civil Procedure Act requires an appeal from a subordinate court to the High Court to be filed within thirty days of the decree or order appealed against, save 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." The discretion vested in the Court under this proviso is unfettered, but it must be exercised judicially and not on a whim. The considerations ordinarily weighed include the length of the delay, the reasons for it, the prospects of success of the intended appeal, and the degree of prejudice that would be occasioned to the respondent were the extension to be granted. 13.The entirety of the Applicant's explanation for a delay which, on his own reckoning, runs from 13th February 2025 to 20th August 2025 — a period of over six months against a statutory limit of thirty days — rests on the assertion that his erstwhile advocates, Garane & Somane, failed to inform him or his insurer of the outcome of the judgment, and that he learnt of it only upon being served with pleadings in the declaratory suit. 14.I am not persuaded that this explanation, in itself, amounts to good and sufficient cause. Lack of communication on the part of an applicant's counsel as to the outcome of a suit does not, ipso facto, entitle the applicant to an extension of time within which to appeal. Where an advocate fails, in breach of his professional duty, to keep his client informed of the progress or outcome of a matter, the client's remedy lies in a suit for professional negligence against that advocate, not in an open-ended licence to disregard the statutory timelines binding all litigants. 15.As was held in Gichana Gathuku v David Komu & 3 Others (supra), "inaction by Counsel does not qualify as an excusable mistake of Counsel which would normally be visited upon a client." Likewise, in Rajesh Rughani v Fifty Investments Ltd & Another (supra), the Court held that "it is not enough simply to accuse the Advocate of failure to inform as if there is no duty on the client to pursue his matter." A litigant retains, throughout the pendency of his suit, an independent obligation to keep abreast of its progress; he cannot abdicate that duty entirely to his advocate and then, upon an adverse outcome, plead the advocate's silence as a shield against the ordinary consequences of delay. 16.This difficulty is compounded by the complete absence of any affidavit from Garane & Somane Advocates, the firm said to be responsible for the default, affirming or explaining the position taken on the Applicant's behalf in the supporting affidavit of Dolphine Moindi. No explanation has been placed before the Court, whether by way of correspondence between the Applicant or his insurer and that firm, or by way of an affidavit from an officer of the firm addressing the allegation directly. This is a material gap, particularly since there is nothing on record to suggest that the Applicant has changed advocates in the primary suit; Garane & Somane Advocates remain, on the face of the record, the advocates on record for the Applicant in Mombasa MCCC No. 710 of 2019. An unsubstantiated allegation of professional default, made in the Applicant's own affidavit and left uncorroborated by the very advocates against whom it is levelled, and unaccompanied by any formal notice of change of advocates, falls well short of the compelling explanation the law requires before the ordinary rule that time limits are to be honoured is displaced. 17.A further, and in my view telling, difficulty with the Applicant's explanation is that it does not specify when the Applicant, or his insurer, first became aware of the declaratory suit from which he claims to have learnt of the impugned judgment. The Applicant avers only that it is "from this declaratory suit" that he and his insurer learnt of the judgment, without stating the date on which the pleadings in that suit were served on him or his insurer, or any other date from which the Court could assess whether the present application was brought promptly upon that discovery. This omission matters, since the 1st Respondent's own evidence, exhibits "MT5" and "MT6", suggests that correspondence notifying the Applicant's advocates of the judgment and of the intention to file the declaratory suit was sent as early as 16th May 2025. Without a clear date of actual knowledge from the Applicant's side, this Court is unable to determine whether the interval between the impugned judgment and the filing of this application was attributable, in whole or in part, to further delay on the Applicant's own part after he in fact learnt of the judgment. An applicant seeking an indulgence of this nature bears the burden of placing before the Court a full and candid account of the material dates; this the Applicant has not done. 18.I have also had regard to the nature of the judgment the Applicant seeks to impugn. Although a defence appears to have been filed on his behalf following the setting aside of the original ex parte judgment, there is nothing on record to suggest that the Applicant thereafter actively participated in the trial or contested the evidence led against him; no cross-examination on his behalf, nor any evidence in his defence, is reflected in the judgment of 13th February 2025. This is consistent with the 1st Respondent's own account that the Applicant's advocates, upon service of that judgment, indicated that the insurer "seem[ed] to have lost interest in the matter." It follows that the trial effectively proceeded without meaningful contest from the Applicant, notwithstanding the defence filed. 19.A litigant who has not, whether by his own default or that of his advocate, placed before the trial court any evidence or submissions genuinely contesting liability is not, in my view, ideally placed to invite this Court, on appeal, to disturb the trial court's findings of fact on that very issue, and in particular its finding on liability, arrived at substantially on the basis of uncontroverted evidence. This is not to foreclose the right of appeal altogether, but it is a factor properly weighed in assessing whether the interests of justice favour the exercise of the Court's discretion to extend time, especially where, as here, the explanation for the delay is itself unsatisfactory. 20.Taking these matters together — the insufficiency of the explanation for the delay, the want of corroboration from the advocates alleged to be at fault, the absence of any indication of a change of advocates, the silence as to the material date of actual knowledge, and the absence of any real contest on liability at the trial — I am not satisfied that the Applicant has demonstrated good and sufficient cause within the meaning of section 79G of the Civil Procedure Act. The prayer for leave to appeal out of time must fail. Stay of proceedings in MCCC No. E903 of 2025 21.Even were I wrong in the foregoing conclusion, the prayer for an order staying proceedings in Mombasa MCCC No. E903 of 2025 could not stand independently of it. Order 42 of the Civil Procedure Rules, under which a stay of proceedings pending appeal is ordinarily sought, presumes the existence of an appeal already filed and pending before the appellate court; indeed, Rule 6(4) of Order 42 provides that, for purposes of that rule, an appeal to the Court of Appeal is deemed to have been filed once notice of appeal has been given. It is not open to an applicant to seek, still less to be granted, an order staying proceedings pending an appeal that has not yet been instituted, and whose very institution is contingent upon the grant of leave sought in the same application. Since no appeal is, or could at this stage be, pending before this Court — leave to appeal out of time having been sought but not granted — there is, properly speaking, nothing in aid of which this Court can order a stay. A stay of execution, or of proceedings, cannot be granted on the strength of a bare miscellaneous application unaccompanied by an appeal actually filed; to hold otherwise would permit a litigant to obtain, in substance, the relief of a stay pending appeal without ever having to file an appeal at all, a result that would offend both the letter and the policy of Order 42. 22.This difficulty is not resolved by the fact that the intended appeal is, on the Applicant's own account, wholly pegged on the primary suit. However closely related the declaratory suit may be to the primary suit, the jurisdiction to stay proceedings in the former in aid of an appeal from the latter can only be invoked once that appeal is properly before the Court. I decline, in these circumstances, to grant the order of stay sought. Disposition 23.For the foregoing reasons, I find that the Applicant has not made out a case for the orders sought. The Notice of Motion dated 20th August 2025 is accordingly dismissed. The 1st Respondent, having actively opposed the application, shall have the costs of the application. There being no appearance or participation by the 2nd Respondent, I make no order as to costs in his favour. 24.Orders accordingly. SIGNED, DATED AND DELIVERED ON 24 JULY 2026NGAAH JAIRUSJUDGE