Mutungi v Kesi (Miscellaneous Civil Application E037 of 2025) [2026] KEHC 10403 (KLR) (13 July 2026) (Ruling)

Mutungi v Kesi (Miscellaneous Civil Application E037 of 2025) [2026] KEHC 10403 (KLR) (13 July 2026) (Ruling) Neutral citation: [2026] KEHC 10403 (KLR) Republic of Kenya In the High Court at Makueni Miscellaneous Civil Application E037 of 2025 TM Matheka, J July 13, 2026 Between Alex Keli Mutungi Applicant and John Kesi Respondent Ruling 1.Before me is the application dated 24/04/2025 brought under Order 51 Rule 1 of the Civil Procedure Rules, sections 1A, 2B, 3A, 79G & 95 of the Civil Procedure Act; Article 159 of the Constitution of Kenya and all other enabling provisions of the law. It seeks the following orders;a.Spent.b.That pending hearing and determination of this Application, this honorable court be pleased to issue an order staying any execution of the judgment delivered in Kilungu CMCC No. E252 of 2022: John Kesi -vs- Alex Keli Mutungi.c.That pending the hearing and determination of the pending Appeal, this honorable court be pleased to grant an order of stay of execution of the judgment in Kilungu CMCC No. E252 of 2022: John Kesi -vs- Alex Keli Mutungi.d.That the honorable court be pleased to grant leave to the Applicant to file an Appeal out of time against the judgment delivered on 05/03/2025 by Hon. Godfrey Okengu (Adjudicator) in Kilungu CMCC No. E252 of 2022: John Kesi -vs- Alex Keli Mutungi.e.That the costs of this application be in the cause. 2.The Application is supported by the grounds on its face and the affidavit of Patricia Mugambi the Legal Officer of Geminia Insurance Co. Ltd sworn on the same day. She depones that she has instructions from the Board of Directors to swear the affidavit. 3.That, the Applicant had, in good faith instituted a test suit being Kilungu CMCC No. E251 of 2023: David Kioko Mbithuka -vs- Alex Keli Mutungi, and the proceedings in Kilungu CMCC No. E252 of 2022 had been stayed pending the hearing and determination of the test suit. That, it was only upon delivery of judgment in the CMCC No. E252 of 2022 that the Applicant became aware that the trial had proceeded to conclusion and judgment rendered in his absence. By then the statutory period of filing the Appeal has already lapsed That, the delay was inadvertent neither deliberate nor inordinate but arose from procedural developments occasioned by the consolidation and stay of related proceedings for purposes of judicial economy and consistency of findings. 4.That, the Applicant is aggrieved by the finding on liability and is desirous of challenging it on Appeal. That, the Applicant acted expeditiously upon discovery of the judgment by promptly filing the present Application. 5.That, the Applicant has an arguable Appeal with high prospects of success. That, the subject matter arises from a road traffic accident involving the Respondent’s motor cycle KMFX 474S and motor vehicle KCA 987J where the police investigations apportioned blame solely on the Respondent for negligently carrying more than one passenger and failing to maintain his proper lane while ascending a hill thereby colliding with motor vehicle KCA 987J. The Memorandum of Appeal is exhibited as PM1. 6.That, the period for stay of execution has also lapsed thus exposing the Applicant to imminent execution proceedings which will render the intended Appeal nugatory and occasion grave injustice and financial hardship if execution proceeds before the Appeal is heard. 7.That, the Applicant is ready and willing to comply with any reasonable conditions that this court may impose including the deposit of the decretal sum in court or the provision of such security as may be deemed just. That, no prejudice will be occasioned to the Respondent if the orders sought are granted as they shall have an opportunity to fully participate in the Appellate proceedings. The Response 8.The Application is opposed through the Replying Affidavit of D.M. Mirara an Advocate of the High Court of Kenya and well versed with the matter hence competent to swear the affidavit sworn on 06/05/2025 deponed. 9.That, the Application for leave to Appeal out of time is without merit as the Applicant was fully aware of the date of judgment having appeared through counsel on 27/02/2025 when judgment date of 05/03/2025 was taken by consent. That, the Applicant cannot now purport to have been unaware of the judgment or to claim surprise. 10.That, the delay in filing the Appeal is therefore unsubstantiated, dishonest and should not be excused by the court. That, the prayer for stay of execution is equally premature and unfounded as the decree is yet to be extracted for purposes of execution. 11.That, the Applicant has not proved how he will suffer irreparable loss if the decretal amount is paid. That, without prejudice to the foregoing, if the court is inclined to allow the Application, the Applicant should be directed to settle half of the decretal sum and deposit the other half in court. 12.The Application was canvassed through written submissions. The Applicant’s Submissions 13.The applicant set out for determination the following issues:a.Whether the Applicant has demonstrated sufficient cause to warrant enlargement of time within which to file an Appeal.b.Whether the delay in lodging the Appeal was inordinate and whether it has been reasonably and sufficiently explained.c.Whether the intended Appeal raises arguable triable issues worthy of consideration by the appellate court. 14.As to whether the Applicant has demonstrated sufficient cause to warrant enlargement of time, it was submitted that the mere knowledge of a judgment date, assuming it to be conceded, does not negate the existence of sufficient cause for delay under section 79G of the Civil Procedure Act. 15.Reliance was placed on Nicholas Kiptoo Arap Korir Salat -vs-IEBC & 7 Others (2014) eKLR for the proposition that extension of time is not a matter of mechanical computation but a question of equity, justice and judicial discretion. That, a party is not to be punished for delay occasioned by procedural misunderstanding or bona fide mistake especially where such delay is not inordinate and no prejudice is occasioned to the opposing party. 16.Further reliance was placed on Thuita Mwangi -vs-Kenya Airways Ltd (2003) eKLR for the submission that mistakes or lapses ought not to debar a litigant from pursuing his rights and that such mistake/lapses should be excused if sufficient cause is shown. That, the right of Appeal is a Constitutional imperative grounded in Article 50(1) and courts are enjoined to lean in favor of sustaining rather than stifling access to appellate remedies. 17.As to whether the delay was inordinate and whether is has been explained satisfactorily, it was submitted that the delay is approximately 46 days and that when measured against judicial standards, such a duration does not amount to inordinate delay. Reliance was placed Harsheet K. Raval -vs-Dawda Lakhat & Co. Advocates (2017) eKLR where the court held;“A delay of about 2 months cannot be said to be inordinate. It is always a question of degree. What is inordinate in one context may be reasonable in another depending on the circumstances advanced.” 18.It was contended that the Applicant was under a bonafide impression that judgment in the subordinate court had been stayed pending resolution of the test suit. That, the said misapprehension was neither reckless nor contrived. Reliance was placed on Andrew Kiplagat Chemaringo -vs- Paul Kipkorir Kibet [2018]eKLR for the submission that; the law does not set out any minimum or maximum period of delay and all it states is that any delay should be satisfactorily explained. 19.It was submitted that there is no evidence that the Applicant sat on his rights or acted with deliberate neglect and that the Respondent has not established that he will suffer any demonstrable prejudice if the Appeal is admitted out of time. 20.As to whether the Appeal raises triable issues, reliance was placed on Stanley Kang’ethe Kinyanjui -vs- Tony Ketter & 5 Others (2013) eKLR for the submission that an arguable Appeal is not one that must necessarily succeed but one that is not frivolous and raises a bonafide issue worthy of consideration by the court. That, the issues raised in the Memorandum of Appeal are not merely academic or abstract but go to the very core of the dispute -touching on liability, quantum, evidentiary burden and procedural fairness. That, these substantial questions of law and fact cannot be dismissed offhand. 21.As to whether the Respondent will suffer prejudice if the orders sought are granted, it was submitted that the cardinal principle of law is that the mere grant of leave to Appeal out of time does not per se occasion prejudice to the opposing party unless such prejudice is shown to be substantial, irreparable or incapable of compensation by costs. That, no such prejudice has been demonstrated by the Respondent herein. Reliance was placed on Philip Chemwolo & Anor -vs- Augustine Kubende (1986) eKLR where the court stated;“Blunders will continue to be made from time to time and it does not follow that because a mistake has been made, a party should suffer the penalty of not having his case heard on merit.” 22.It was submitted that in the balancing of equities, denying the Applicant leave to ventilate his grievance on Appeal would visit greater injustice upon him contrary to Article 159 (2) (d) of the Constitution which enjoins courts to administer justice without undue regard to procedural technicalities. The Respondent’s SubmissionsAccording to the respondent the issues for determination were;a.Whether the Applicant has met the threshold for grant of leave to appeal out of time.b.Whether the Applicant has met the threshold for grant of stay of execution. 23.As to whether the threshold for grant of leave to appeal out of time has been met, reference was made to section 79G of the Civil Procedure Act for the submission that the Court must consider the length of delay, the reason for the delay, the arguability of the intended appeal and prejudice to the Respondent. Reliance was placed on Leo Sila Mutiso -vs- Rose Hellen Wangari Mwangi [1999] 2 EA 231 where the Court stated;“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 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.” 24.It was submitted that the Applicant has failed to meet these legal standards for the following reasons; Firstly, regarding the length and reason for delay the judgment was delivered on 05/032025 in the presence of the Applicant's counsel who was duly holding brief. 25.That, the Applicant was aware of the delivery date but failed to act within the statutory timeframe. That, the delay is approximately 50 days, which is inordinate and unexplained. Reliance was placed on Andrew Kiplagat Chemaringo (supra) where the Court stated:“The law does not set out any minimum or maximum period of delay. All it states is that any delay should be satisfactorily explained. A plausible and satisfactory explanation for delay is the key that unlocks the court’s flow of discretionary favour. There has to be valid and clear reasons, upon which discretion can be favorably exercisable.” 26.Secondly, it was submitted that the Applicant has not demonstrated the likelihood of the intended Appeal succeeding. That, the draft Memorandum of Appeal does not establish any new facts or raise a triable issue. That, it is purely based on a blanket denial of facts already proven by the trial court. 27.It was submitted that the Respondent is entitled to the fruits of the judgment and that granting leave to Appeal out of time, particularly after inordinate delay, will unduly prejudice the Respondent who has a valid decree in his favor. 28.As to whether the Applicant has satisfied the criteria for stay of execution pending Appeal, reference was made to Order 42 Rule 6(2) of the Civil Procedure Rules for the submission that the burden of proving substantial loss lies squarely on the party seeking stay of execution. That, it is not enough for an Applicant to merely allege that they will suffer substantial loss but they must provide concrete evidence to support their claim. Reliance was placed, inter alia, on James Wangalwa & Another -vs- Agnes Naliaka Cheseto [2012] eKLR where the court held;“No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process. The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the Applicant as the successful party in the appeal. This is what substantial loss would entail…” 29.It was submitted that the Applicant has failed to demonstrate that execution will create an irreversible situation that cannot be remedied should the Appeal succeed. That, he has failed to demonstrate any specific or irreparable loss they will suffer if execution is not stayed. That, the claim that they may be unable to recover the decretal sum if the Appeal succeeds is speculative and unsubstantiated. 30.It was submitted that the Application has been made after unreasonable delay and reliance placed, inter alia, on Salome Alice Akinyi -vs- Aridempta Veronica Ooko & Another [2019] eKLR where the court stated;“It is correct as the Respondents submitted that “equity aids the vigilant and not the indolent.” The Applicant had delayed in filing her appeal, the delay of four (4) months in bringing the application seeking leave to file an application out of time was inordinate. The Applicant has not acted in good faith, waiting for many months and waking up and collecting proceedings then using them as an excuse. It is not necessary to address the prejudice to the Respondent given that the delay is inexcusable, inordinate and unexplained.” 31.It was submitted that the Appellant has not provided any explanation for the failure to file the Application and Appeal within the prescribed timelines. That, their indolence and lack of diligence should bar them from obtaining discretionary relief from this court. 32.It was submitted that the Appellant has not offered or proposed any form of security for the due performance of the decree as required under Order 42 Rule 6(2)(b) of the Civil Procedure Rules. That, the provision of security is not a mere formality but a mandatory prerequisite to the grant of an order for stay of execution. Reliance was placed, inter alia, on Andiwo -vs- Safaricom PLC & 15 Others (Civil Suit E005 of 2020) [2022] where the court stated;“The Applicant has further not offered any security for the due performance of the decree or order in issue, as may ultimately be binding on him. He lodged an appeal against the ruling of this court delivered on 14th February, 2021 but filing of an appeal does not guarantee stay of execution of the court’s orders unless the Applicant fulfills or meets the conditions set out under Order 42 rule 6 of the Civil Procedure Rules.” 33.Further reliance was placed on Equity Bank Limited -vs- Taiga Adams Company Limited [2006] eKLR for the submission that it is not enough to satisfy one or two of the requirements of Order 42 rule 6 but all of the requirements must be met for the court to grant orders of stay pending Appeal. It was contended that the Appellant’s failure to offer security renders the Application fatally defective and undeserving of the court’s discretion. 34.I have carefully considered the Application, the Supporting Affidavit, the Replying Affidavit and the rival submissions, and the issue for determination is whether the Application is merited; Analysis and Determination 35.Section 79G of the Civil Procedure Act provides that: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. 36.The proviso implies that an intended appeal should be in place or be filed together with the Application seeking leave for extension of time to file it. This view is buttressed by the case of Mugo & Others –vs- Wanjiru & Anor [1970] EA 482 where the court stated as follows;“Clearly, as a general rule the filing and service of the notice of appeal ought to be regularized before or at least at the same time as an application is made to extend the time for filing the record and the fact that this has not been done might be a reason for refusing the application or only allowing one on terms as to costs. But it does not mean that such an application must be refused.” 37.The Applicant herein has attached a draft Memorandum of Appeal to this Application which, qualifies as an intended Appeal for purposes of guiding the court on whether to the grant the orders sought. 38.It is now well settled that the extension of time or its denial is an exercise of discretion by the court as enunciated by the Court of Appeal in Leo Sila Mutiso –vs- Rose Hellen Wangari Mwangi (supra). In determining an Application for extension of time, the court has to consider the length of delay, reason for delay, chances of the Appeal succeeding and degree of prejudice to the Respondent if the Application is granted. 39.The judgment was delivered on 05/03/2025 and this Application was filed on 24/04/2025, approximately 50 days later. The law requires Appeals from subordinate Courts to the High Court to be filed within 30 days from the date of the decree or order appealed against. After lapse of the statutory period, the delay in this matter is 20 days. 40.The Applicant explained that the delay was caused by a bona fide impression that judgment had been stayed pending resolution of the test suit. It is not in dispute that Kilungu CMCC No. E251 of 2022 was a test suit and by their very nature, test suits are meant to establish liability which is then applied to all the other files in the series. The rest of the files in the series are therefore stayed to await the outcome of the test suit. 41.In the draft Memorandum of Appeal, the apportionment of liability in the ratio of 50:50 is contested and there are issues of fact raised which warrant the attention of this court. It is evident that in my view the delay of 20 days, though not inordinate, has been satisfactorily explained. 42.As regards the prayer for stay, Order 42 Rule 6 of the Civil Procedure Rules is instructive on the conditions which should guide the Court. They are; whether substantial loss will occur if stay is not granted, whether the application has been filed without unreasonable delay and furnishing security for the due performance of the decree. The question of delay has already been dealt with. 43.As for substantial loss, the Applicant deponed that there was a threat of execution and that he would l suffer loss and injustice if the same proceeded before the Appeal is determined. It is trite and courts have severally held that the threat of execution does not amount to substantial loss as it is a process that is sanctioned by the law. In Ndung’u -vs- Mutua (Civil Appeal No. E047 of 2024) KEHC 6276 eKLR the court stated;“It is trite law that execution is a lawful process and it is not a ground for stay of execution. The Applicant is required to show how execution shall irreparably affect him or will alter the status quo to his detriment therefore rendering the appeal nugatory, which the applicant in this case has failed to do. Furthermore, the loss the Applicant alludes to, the sale of his home can be quantified by way of damages. It is therefore my considered view that the applicant has not demonstrated substantial loss that he stands to suffer.” 44.The Applicant did not attach the judgment of trial court and there is no deposition in the Supporting Affidavit indicating the award given by the trial court. It isdeponed that the only issue in the appeal is the apportionment of liability. The award of liability at 50:50 appears to the the only point of substantial loss on the part of the applicant. It is my view that from this it is not about the sum of the damages, but the award on liablity that will result in substantial loss. Order 42 Rule 6 (2) of the Civil Procedure Rules, unequivocally states that;“(2)No order for stay of execution shall be made under subrule (1) unless—(a)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(b)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.” 45.The use of the word ‘and’ in the above provision means that the conditions for grant of stay are conjunctive. In other words, all of them must be established before an order for stay of execution can be granted. In our case, the Applicant has established that the Application was filed without unreasonable delay and that should the award whatever the sum remain at 50:50 there will be substantial loss. 46.The applicant is ready to comply with the orders of this court on security. The applicant will deposit the entire award as per the judgment of the subordinate court in a joint interest earning account in the names of both counsel within 30 days hereof. 47.Consequently, the Applicant has leave to Appeal out of time on condition that the entire award plus costs and interest in a joint interest earning account in the names of both counsel within 30 days hereof. In default the stay will lapse automatically and execution to issue. 48.The costs of this application to abide the appeal. RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT KABARNET HIGH COURT ON 13TH JULY 2026MUMBUA T MATHEKAJUDGECA DanApplicant’s AdvocatesG & G Advocates LLPRespondent’s AdvocatesM/S Mirara & Associates Advocates LLP