https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6935

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISII** **MISCELLANEOUS CIVIL APPLICATION NO. E274 OF 2025** **ABEL ORENGE……………………………………………APPLICANT** **=VERSUS=** **CHRISTOPHER MOCHUMBE MOTONYI…………….RESPONDENT** **RULING** 1. This Application which is dated 12th November 2025, arises from a judgment that was delivered on 7th July 2023 in OGEMBO CMCC No. 95 of 2021. In which the Applicant was the Defendant, and in which his Counterclaim was dismissed. 2. The Application which is supposedly brought under Section 79 of the Civil Procedure Act (Cap 21 Laws of Kenya), primarily seeks the following orders : 3. Leave to file Appeal out of time; and 4. A stay of execution of the decree in OGEMBO CMCC No. 95 of 2021, pending the hearing and determination of the intended Appeal. 5. The Application is supported by the Applicant’s Supporting Affidavit, and is based on the grounds stated in it. Principal among them being that the Applicant was unaware of the judgment; as that his then Advocate on record did not inform him of the judgment. 6. That he remained unaware of the judgment, until in October 2025 when the Respondent (Decree-Holder) embarked on execution, after obtaining a decree. Further that the said judgment is vague. 7. The Respondent has opposed the Application, through a Replying Affidavit sworn by WANJIRU CHRISTINE his Advocate. Its unclear why the Advocate chose to swear the affidavit instead of it being sworn by the respondent himself. 8. It is a settled position of the law, that Advocates should refrain from swearing affidavits on behalf of their clients the litigants, on contentious issues or contested facts such as the ones in this Application. This is a practice that should continue being discouraged and desisted from. 9. Be that as it may, the Respondent’s opposition to the Application is essentially that the impugned judgment was delivered in the presence of the Applicant’s (then Defendant) Advocate. ***Analysis and Determination*** 1. The Application was canvassed by way of written submissions. With each party filing its submissions. The Applicant’s submissions are dated 14th April 2026, while the Respondent’s submissions are dated 15th April 2026. 2. The Court is to determine two issues. First, whether the Applicant should be granted leave to appeal out of time. Secondly, whether pending the filing, hearing and determination of the intended Appeal, there should be a stay of execution of the said decree of the trial court. 3. The factors to be considered in determining an Application for leave to Appeal or to do anything out of time, have been well settled by the courts. They were reiterated by the Court of Appeal in ***Edith Gichungu Koine v. Stephen Njage Thoithi [2014] eKLR***, by Odek JA as including the following: 4. *The period of delay;* 5. *The reasons for the delay;* 6. *The degree of prejudice to the Respondent if the Application is granted, and* 7. *Whether the matter raises issues of public interest.* 8. In this particular case, the delay was for over three years. Which even by the most generous yardstick or standards, is too prolonged and unreasonable. As for the reasons that an Applicant should cite for delay, they have to be reasonable, logical, and psychologically compelling. 9. This is because the power of the court to enlarge time, extend time, or allow for filing or performance of any act out of time, is a discretionary one. Being discretionary, the reasons given by an Applicant or party for the delay, have to be convincing. 10. In this particular case, the delay of over three years is too prolonged and unreasonable as to be inexcusable. Besides, the reasons advanced for it and the explanation given for it, are so lame as to make the Application and the intent to appeal, an afterthought. For those reasons, leave to appeal out of time, is hereby declined. 11. As for the prayer for stay pending Appeal, I hold that a prayer in an Application, should not only be anchored in the law, but the jurisdiction of the court to grant the prayer should be properly invoked. 12. In this case the foundational authority for the court to grant a stay pending appeal, is provided for in Order 42 Rule 6 (2) of the Civil Procedure Rules. Failure to invoke that provision, is fatal, and cannot be described as a procedural technicality. It is a fundamental error that goes to the root of the Application. 13. Order 42 Rule 6 is not just about procedure. It is a substantive legal threshold for an Application for stay pending Appeal. It sets out the law on the stay. It states as follows: **Rule 6 (1)** **“No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.”** **Rule 6(2)** **“No order for stay of execution shall be made under subrule (1) unless –** 1. **The court is satisfied that substantial loss may result to the Applicant unless the order is made and that the application has been made without unreasonable delay; and** 2. **Such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the Applicant.** **Rule 6(3)** **Notwithstanding anything contained in subrule (2), the court shall have power, without formal application made, to order upon such terms as it may deem fit a stay of execution pending the hearing of a formal application.** 1. As the Application has for whatever reason, failed to invoke Order 42 Rule 6 (2) of the Civil Procedure Rules, an order for stay pending Appeal is not grantable. In my considered view, the only other provision that would apply to stay in the High Court and the subordinate courts, pending Appeal is Order 42 Rule 6(5). Under which an informal Application for stay of execution may be informally made immediately following the delivery of a judgment or ruling. Usually pending the filing of a formal Application for stay pending Appeal. 2. In the end therefore, and for the aforegoing reasons, both limbs of the Application have failed, and the Application is hereby dismissed, with costs. **DATED** and **DELIVERED** at **KISII** on this 7th day of May 2026. **PROF (DR) NIXON SIFUNA** **JUDGE**