https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11612

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KERICHO** **CIVIL APPEAL NO. E016 OF 2026** | | | | --- | --- | | **ABSA BANK KENYA PLC** | **APPLICANT** | | **VERSUS** | | | **1. MELLY EMMANUEL KIBET T/A YOSIT GENERAL STORES 2. JASON KIBET MISOI** | **RESPONDENTS** | **RULING** 1. The Applicant, ABSA Bank Kenya PLC, moved this Court by a Notice of Motion dated 6th March 2026 under sections 79G and 95 of the Civil Procedure Act, Order 42 rule 6, Order 50 rule 6 and Order 51 rule 1 of the Civil Procedure Rules, and Article 159 of the Constitution. It seeks leave to appeal out of time against the ruling and orders delivered on 30 th October 2025 in Kericho CMCC No. E198 of 2025; an order deeming the annexed memorandum of appeal duly filed upon payment of the requisite fees; stay of further proceedings in the subordinate court; and stay of the operation or effect of the impugned ruling. 2. The application is supported by the affidavit of Samuel Njuguna, the Applicant's Recoveries Manager, sworn on 6th March 2026. He deposes that the ruling uploaded to the Court Tracking System on 14th November 2025 was handwritten and largely illegible. The Applicant's advocates requested certified proceedings, the ruling and the order by a letter dated 5th December 2025. According to the affidavit, a typed and certified copy of the ruling was supplied on 3rd February 2026. The Applicant thereafter undertook its internal review and issued instructions to appeal on 27th February 2026. The present application was filed shortly thereafter. 3. The intended appeal challenges the finding that the Respondents had established a prima facie case warranting an interlocutory injunction. In particular, the Applicant contends that the trial court failed to evaluate its evidence concerning service of the statutory notices and the valuation undertaken pursuant to section 97 of the Land Act. 4. The application was not opposed. That does not, however, relieve the Applicant of the burden of satisfying the applicable legal tests. **Issues for Determination** 5. The issues arising for determination are whether the Applicant has shown good and sufficient cause for admission of the intended appeal out of time; and, if so, whether the proceedings and the operation of the impugned ruling ought to be stayed pending appeal. **Extension of Time** 6. Section 79G of the Civil Procedure Act requires an appeal from a subordinate court to the High Court to be filed within thirty days from the date of the decree or order appealed against. The proviso empowers the Court to admit an appeal out of time where the appellant satisfies the Court that there was good and sufficient cause for not filing it within time. 7. In Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR), the Supreme Court stated that extension of time is an equitable remedy, not a right, and that the applicant bears the burden of laying a satisfactory basis for its exercise. Relevant considerations include the length and reason for the delay, possible prejudice to the respondent, whether the application was brought without undue delay, and, where relevant, the public interest. 8. The impugned ruling was delivered on 30th October 2025. The statutory period therefore expired at the end of November 2025. The motion was lodged on 6th March 2026, a little over three months after expiry of the prescribed period. This is a significant delay and requires a candid and plausible explanation. 9. The Applicant explains that the handwritten ruling uploaded on 14th November 2025 was largely illegible; that a typed and certified ruling was obtained on 3rd February 2026; and that internal approval to appeal was given on 27th February 2026. The letter seeking the ruling is dated 5th December 2025, after the appeal period had expired. Corporate approval procedures, standing alone, would not ordinarily excuse non-compliance with a statutory timeline. Nevertheless, the difficulty in obtaining a readable ruling materially affected counsel's ability to identify and settle grounds of appeal. Once the typed ruling was obtained, the period to instructions and the filing of the motion was approximately one month. 10. The annexed memorandum of appeal is not frivolous on its face. It raises arguable questions as to the trial court's treatment of the evidence on statutory notices, service and valuation. At this interlocutory stage, the Court need not determine whether those grounds will ultimately succeed. No specific prejudice arising from the late filing has been demonstrated, and any prejudice caused by the delay can be controlled through strict timelines and an award of costs. 11. Weighing all the circumstances, and bearing in mind the duty to facilitate determination of disputes on their merits, I am satisfied that the explanation is sufficient to warrant the exercise of discretion in the Applicant's favour. **Stay Pending Appeal** 12. Order 42 rule 6(1) of the Civil Procedure Rules makes clear that an appeal does not, by itself, operate as a stay of execution or proceedings. A stay is discretionary and must be justified by sufficient cause. A stay of proceedings is particularly intrusive because it interrupts a litigant's right to have the suit heard and determined without delay. 13. In Kenya Wildlife Service v James Mutembei [2019] KEHC 10478 (KLR), the Court emphasized that stay of proceedings is a grave judicial action which interferes with access to justice and the right to a fair and expeditious hearing, and that the applicable test is consequently high and stringent. The relevant balancing exercise, as stated in In the Matter of Global Tours & Travel Limited, HC Winding Up Cause No. 43 of 2000, includes the need for expeditious disposal, the prima facie merits of the appeal, optimum use of judicial time, and whether the application was made expeditiously. 14. The ruling under challenge granted an injunction restraining the sale or other alienation of L.R. KERICHO/KIPCHIMCHIM/3925 pending determination of the main suit. If the lower court proceeds to determine the suit before the interlocutory appeal is heard, the appeal may be overtaken by events and scarce judicial time may be spent on an appeal that has ceased to serve any practical purpose. A short, conditional stay of the proceedings is therefore justified. 15. The request to stay the operation or effect of the injunction stands on a different footing. Suspending the injunction would expose the charged property to sale while the Respondents' suit and the intended appeal remain unresolved. A sale would alter the subject matter irreversibly and could render both the suit and aspects of the appeal nugatory. The more proportionate course is to preserve the property while requiring the Applicant to prosecute its appeal promptly. I therefore decline to stay the operation of the injunction. **Disposition** 16. In the result, the Notice of Motion dated 6 March 2026 succeeds in part. I make the following orders: **a.** The Applicant is granted leave to appeal out of time against the ruling and orders delivered on 30 October 2025 in Kericho CMCC No. E198 of 2025. **b.** The memorandum of appeal be filed and served within 7 days from today. **c.** There shall be a stay of further proceedings in Kericho CMCC No. E198 of 2025 until determination of the appeal. **d.** The Applicant shall file and serve the record of appeal within forty-five (90) days from today. **e.** The prayer for stay of the operation or effect of the ruling and injunction issued on 30 October 2025 is declined. For avoidance of doubt, the injunction preserving L.R. KERICHO/KIPCHIMCHIM/3925 shall remain in force pending the appeal or further orders of the Court. **f.** File is closed. **T. A. ODERA** **JUDGE** **28.7.26** **DATED, SIGNED AND DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 28TH DAY OF JULY 2026. In the presence of:** **MR PERE FOR THE APPLICANT** **CA : BUSIENEI**