https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7102

Amos & another v POO (Suing as Father and Friend of SAO) (Civil Miscellaneous Application E024 of 2025) [2026] KEHC 7102 (KLR) (7 May 2026) (Ruling) Neutral citation: [2026] KEHC 7102 (KLR) Republic of Kenya In the High Court at Nanyuki Civil Miscellaneous Application E024 of 2025 JN Kamau, J May 7, 2026 Between Chweya Janai Amos 1st Applicant Enock Omariba 2nd Applicant and POO (Suing as Father and Friend of SAO) Respondent Ruling 1.In the Notice of Motion application dated and filed on 14th October 2025, the Applicants herein sought that this court enlarge time within which they could lodge the intended appeal against the Judgment delivered on 13th June 2025 in Nanyuki CMCC E104 of 2022-Paul Orengo Otieno (suing as father and friend of SAO) v Chweya Janai Amos & Another. They also sought an order for stay of execution of the decree issued in the said case pending the hearing of the intended appeal. 2.Ian Mbae, a Legal Officer at Old Mutual Insurance, swore an Affidavit in support of the said application on 14th October 2025 and on behalf of the Applicants herein. 3.He averred that they learnt about the delivery of the judgment after receiving an email from their advocates purporting to follow up on a previously sent email which they had not received. They contended that the delay in lodging the appeal was occasioned by the inadvertent mistake of the advocates as the error of sending an email to them was an honest mistake. 4.They stated that they had an arguable appeal and prayed that the application be allowed to enable them prosecute the appeal. They added that if the said judgment was not stayed, the appeal would be rendered nugatory. 5.In opposition to the said application, the Respondent filed Grounds of Opposition dated 29th October 2025 on 30th October 2025. He termed the present application as an abuse of the court’s process since the Applicants were granted thirty (30) days stay which he said they wasted. 6.He stated that there was unreasonable delay in the filing of the application herein and that no sufficient reason had been given for the delay of four (4) months. He asserted that the application was meant to deny him his right to enjoy the fruits of the judgment. 7.He asserted that the application was fraught with deliberate material non-disclosure as the Applicants did not disclose that liability and exhibits were consented to by the parties. He contended that the appeal had no chances of success since documents were admitted as exhibits by consent. He averred that a consent order was not appealable because it was a contract and there were no grounds demonstrated in the application that would vitiate a contract. 8.He stated that the purported communication breakdown between their advocates and the insurance company was occasioned by their own indolence and lack of due diligence hence the application was not merited. He urged this court to dismiss the application with costs. 9.The Applicants’ Written Submissions which were not stamped were dated 9th February 2026 while those of the Respondent were dated 12th February 2026 and filed on 16th February 2026. The Ruling herein was based on the said Written Submissions which both parties relied upon in their entirety. Legal Analysis 10.The Applicants invoked Order 42 Rule 6 of the Civil Procedure Rules and placed reliance on the case of Halai & Another v Thornton & Turpin (1963) Ltd (1990) KLR 365 where the court held that the conditions for a stay of execution were that the applicant had to show sufficient cause that substantial loss would occur, that the application was made without unreasonable delay and that such security as the court ordered for the due performance of the decree had been given. 11.They submitted that they had satisfied the said conditions as the explanation they offered was reasonable and had in fact sought leave to file an appeal out of time. They pointed out that if the stay of execution was not granted, it would render their application nugatory. They expressed readiness to deposit the entire decretal sum into a joint interest earning account or comply with any such security as this court may direct. 12.They pointed out that the appeal raised serious bona fide triable issues deserving consideration by an appellate court. They cited RWW v EKW (2019) eKLR where it was held that the purpose of stay was to preserve the subject matter so that the rights of the appellant were safeguarded and the appeal was not rendered nugatory. They added that in Butt v Rent Restriction Tribunal (citation not given), it was held that a court ought not to refuse an application for stay merely because there was an alternative remedy that may be available. 13.They were emphatic that the Respondent would not suffer prejudice since they were willing to deposit the decretal amount and they would suffer irreparable harm if execution was to proceed and hence, the balance of convenience tilts in their favour to preserve the status quo. They pointed out that they acted timeously and were ready to comply with court order and urged the court to allow the application. 14.On his part, the Respondent submitted that the delay was inordinate and had not been explained by the Applicants. He was emphatic that the Applicants failed to satisfy the requirements under Section 79(G) of the Civil Procedure Act since no valid reasons were given for failing to file the appeal within thirty (30) days and no certificate of delay from the lower court was attached to confirm the lower court occasioned the delay. They attributed the delay to the Applicants indolence and were emphatic that the reasons that the Applicants advanced were not satisfactory. 15.He further stated that there was no demonstration of any attempt to make a telephone call or writing a letter or even holding a meeting with the Insurance Company as a result of which the application was an afterthought and meant to delay payment of the decretal sum. He argued that the application was contrary to the overriding objectives under section 1A of the Civil Procedure Act because all parties participated in the trial and the Applicants were not assisting this court by filing flimsy and unmerited application. He stated that the delay was sufficient to deny the Applicants the orders sought under Order 42 Rule 6 of the Civil Procedure Rules. 16.In exercising its discretion to allow an application seeking extension to file an appeal out of time, a court had to be satisfied that the omission to file the same within time was excusable. In other words, there had to be a plausible explanation for the delay in filing the appeal. 17.It was apparent from the court record that the decision the Applicant intended to appeal against was delivered on 13th June 2025. The present application was filed on 14th October 2025. About three (3) months had lapsed since the deadline within which the Applicant could lodge an appeal within the time stipulated in Section 79G of the Civil Procedure Act. The period was long but was no inordinately long considering the circumstances of the case. 18.Indeed, courts have held time and again that the blunders of an advocate should not be visited upon a litigant as blunders would continuously be made as human is to err. Every party has a right to access any court or tribunal to have its dispute heard and determined in accordance with Article 50(1) of the Constitution of Kenya, 2010. Even where a party delayed in doing an act, there was always a provision that would give it reprieve to seek justice. 19.Notably, Order 50 Rule 6 of Civil Procedure Rules, 2010 empowered the court to enlarge the time to do a particular act. The said Order 50 Rule 6 of Civil Procedure Rules stipulates as follows:-“Where a limited time has been fixed 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 enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed:Provided that the costs of any application to extend such time and of any order made thereon shall be borne by the parties making such application, unless the court orders otherwise”. 20.Against this backdrop, this court, therefore, perused the draft Memorandum of Appeal that was annexed to the present application. The grounds in the Applicants’ draft Memorandum of Appeal showed that they were aggrieved by the Trial Court’s decision regarding award of damages which they stated were excessive compared to the injuries sustained by the Respondent. This was an arguable point of law. 21.This court did not, however, consider the merits or otherwise of the grounds of appeal that were set out therein as that was strictly under the purview of the appellate court. All that it was expected to do was to consider if the Applicants herein had demonstrated that they had arguable grounds of appeal. 22.In addition, while considering whether to grant an order for extension to do any act or not, the court was also required to consider if the opposing side would suffer any prejudice if extension of time was granted. This court did not see any prejudice that the Respondent would suffer or was likely to suffer if the Applicants herein exercised their constitutional right of appeal since the Applicants were willing to deposit the whole decretal amount. 23.Taking all the factors hereinabove into account, it was the considered view of this court that that it was in the interests of justice (emphasis court) that the Applicants be given an opportunity to have their intended Appeal heard on merit as they would suffer prejudice if they were denied an opportunity to fully present their Appeal to be heard on merit. 24.Indeed, the power to grant orders in the interest of justice and/or for the ends of justice (emphasis court) is well captured in Section 3A of the Civil Procedure Act that states that: -“Nothing in the Act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice (emphasis court) or to prevent abuse of the process of the court.” 25.Turning to the issue of order for stay of execution, this court noted both parties’ submissions relating to the conditions that the Applicants was required to meet before the said could be granted. As the Respondent was not technically opposed to the Applicants proposal of depositing the decretal sum into an interest earning account in the names of his advocates and those of the Applicants herein, this court did not wish to belabour this point as the Applicants’ proposal was reasonable and found it prudent that the Trial Court orders be stayed pending the determination of the intended Appeal herein for the reason that the Applicants’ intended appeal would be rendered nugatory if the Respondent executed to recover the amount in question. Disposition 26.For the foregoing reasons, the upshot of this court’s decision was that the Applicants’ Application dated and filed on 14th October 2025 was merited and the Prayer No (3) and (4) be and are hereby allowed in the following terms: -1.That there shall be a stay of execution of the Decree issued in in Nanyuki CMCC No E104 of 2022 Paul Orengo Otieno (suing as father and friend of SAO) v Chweya Janai Amos & Enock Omariba pending the hearing and determination of the appeal on condition the Applicants shall deposit the decretal amount in a joint interest earning account in the name of both counsels herein within forty five (45) days from the date of this Ruling.2.For the avoidance of doubt, in the event, the Applicants shall default on Paragraph 26 (1) hereinabove, the conditional stay of execution herein shall automatically lapse.3.The Applicants be and are hereby directed to file and serve their Memorandum of Appeal within fourteen (14) days from the date of this Ruling.4.The Applicants be and are hereby directed to file a Record of Appeal within one hundred and twenty (120) days from the date of this Ruling.5.Matter to be mentioned on 29th September 2026 to confirm compliance and/or for further orders and/or directions. 27.It is so ordered. DATED AND DELIVERED AT NANYUKI THIS 7TH DAY OF MAY 2026J. KAMAUJUDGE