https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11292

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISUMU** **HCCSCA NO. E004 OF 2026** **KENNEDY GABRIEL OCHIENG ANUNDA ……………...… APPELLANT** **-VERSUS-** **MOHAMED BARRE T/A** **DEER TRADING COMPANY ……………………….......…… RESPONDENT** **R U L I N G** 1. A judgment was delivered by the Small Claims Court on **21/6/2024** for **Kshs.848,000/-** against the applicant. The same was however not uploaded on the CTS until **17/10/2024**. The decree was subsequently issued on **4/11/2024** and warrants of attachment on **17/12/2025**. 2. By Motions on Notice dated **26/3/2026** and **1/4/2026**, respectively, the applicant applied for leave to appeal out of time and stay of execution. The two applications were heard together by way of submissions. 3. It was the applicant’s contention that the judgment delivered on **21/6/2024** was never posted on the CTS until **17/10/2024**. That that was after several visits to the Court registry in attempts to access the same. That the decree was issued on **4/11/2024** but due to the fact that his advocate became expectant for the better part of the year 2025, she was unable to travel to Kisumu from Nairobi to make a follow up on the proceedings. 4. That the delay was not out of his fault and he should therefore not be punished for no fault of his own. That the intended appeal has high chances of succeeding and unless a stay of execution is ordered, he will suffer irreparable damage whereby the intended appeal will be rendered nugatory. 5. The Motions were opposed vide the replying affidavit of **Mohamed Barre** on **7/5/2026**. He contended that the applicant had admitted having obtained the judgment on **17/10/2024**. That the delay from that time to April, 2026, was nearly one and a half years. That the delay was inordinate. That the expectancy of the applicant’s advocate during the year 2025 was no good reason for the delay as other employees in her law firm would have in her absence pursued the matter on her behalf. It was urged that the applications be declined. 6. The parties filed their respective submissions dated **7/6/2026** and **8/6/2026**, respectively which the Court has considered. 7. It was submitted for the applicant that although the order for extension of time is discretionally, the discretion has to be exercised within known principles, to wit, the length of the delay, the reason for the delay and the prejudice to be suffered by the opposite party. The case of **Paul Musili Wambua vs AG (2015) eKLR** was cited in support of that proposition. 8. That since the judgment was delivered on **21/6/2024** and the application was being made in March, 2024, there was inordinate delay. That that was so notwithstanding that there was no precise measure of inordinate delay in law. The case of **Mwangi S. Kaimenyi vs AG & Anor** (no citation) was cited in support of that proposition. 9. That the intended appeal had chances of succeeding as the trial court relied on a Police Abstract where investigations were still pending. That since no action had been taken between the 2024 until March, 2026, there was no prejudice to be suffered by the respondent. 10. On stay, it was submitted that the purpose of stay was to preserve the subject matter of the dispute while an applicant is allowed to exercise his undoubted right to appeal. The case of **RWN vs EKW (2019) eKLR** was cited in support thereof. That the respondent was a man of straw and will not be able to refund the money if it is paid over. 11. For the respondent, it was submitted that an order for extension of time is an equitable remedy only available to a deserving party. The case of **Nicholas Kiptoo Salat vs IEBC (2014) eKLR** was relied on in support of that proposition. That the delay was in ordinate. That where delay is prolonged and unexplained, the court’s discretion should not be exercised in favour of such an applicant. The Court of Appeal decision in **Bin Mach Engineers Ltd vs James Kahori Mwangi (2011) eKLR** was cited in support of that proposition. 12. Further, that it was not enough to blame Counsel for every mistake. An applicant must demonstrate that he was vigilant at all times. The case of **Hebo Agencies Ltd vs Wilfred Odhiambo Musingo (2015) eKLR** was cited in support of that proposition. That in the present case the applicant had not acted diligently. 13. On stay, it was submitted that no substantial loss had been established. That the application was not made timeously and in any event, no security had been offered for the due performance of the decree herein. It was therefore urged that the applications be declined. 14. I have considered the contestations of the parties. There are two applications; one for stay of execution and another for extension of time within which to appeal against the judgment of the Small Claims Court of **21/6/2024**. Due to the nature of the two applications, I propose to start with the one for extension of time. 15. ***Section 79G of the Civil Procedure Act*** provides: - ***“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.”*** 1. From the foregoing, it is clear that to grant or not to grant leave for extension of time to appeal is in the discretion of the Court. However, like in all other discretions, the same should be exercised judiciously. The Court has to consider the length of the delay, the reason for the delay, the chances of the intended appeal and the prejudice, if any, that the opposite party might suffer. See **Nicholas Kiptoo Salat vs IEBC & 7 Others (2014) eKLR**. 2. On the length of delay, judgment was admittedly delivered on **21/6/2024**. The applicant was able to access the same on **17/10/2024**. By that date, he was able to make a decision if there were any grounds to appeal, and if so what such grounds were. From **17/10/2024** to **March, 2026**, when the present application was made a record was one year and 5 months. A period of 17 months is by no means inordinate. It required an explanation. 3. The explanation given for the delay is that, the applicant’s advocate tried to pursue the proceedings and, in the process became expectant in the greater part of 2025. That as a result, that occasioned the delay and the applicant should not be punished for a mistake that is not his. 4. Firstly, there was no requirement for the proceedings to be obtained before a Memorandum of Appeal could be prepared and filed. Anytime after obtaining the copy of the judgment on **17/10/2024**, a draft Memorandum of Appeal could have been prepared and filed or exhibited in an application for extension of time. 5. Secondly, being expectant is not a disability. While the Court admits that such a condition comes with its own challenges, it does not lead to total closure of a law firm. The said advocate could not have been expectant for the total period of 17 months. There was no explanation whatever law firm or the applicant did when she was expectant to lodge the subject application. 6. In view of the foregoing, this Court holds that, there was inordinate delay which was not explained. 7. As to the chances of the appeal, this ground becomes mute when the delay has not been properly and satisfactorily explained. Even if a party has a super merited appeal and decides to sleep on his rights and approaches the Court belatedly, the super merit will not save such a party. 8. As regards prejudice, although the respondent did not state what prejudice he would suffer if the time sought is extended, ***Article 159 of the Constitution*** is a decree in itself that justice should not be delayed. Delayed justice is justice denied. Denied justice is a perfect and complete prejudice that no amount of award of costs or damages can assuage. Accordingly, the Court holds that it would be highly prejudicial to continue keeping the successful party away from the fruits of his judgment. 9. This would in itself settle both Motions. But I should consider the second Motion since I am not the final court. The Court of Appeal may want to know my views on the same. The Motion of **1/4/2026** is for stay of execution pending appeal. There being no pending appeal, there can be no stay. 10. Even if there was an appeal pending, still no stay could be granted in the circumstances of this case. For stay to be granted, an applicant must establish that he would suffer substantial loss if the stay is not granted, must offer security for the due performance of the decree or order which will ultimately be binding on him and such an application must be made timeously. 11. First, the application was not made timeously. It was made after an inordinate delay. The decree was entered on **21/6/2024**, yet the application for stay was made on **1/4/2026,** approximately over 22 months later. 12. Secondly, there was no demonstration that the applicant would suffer substantial loss. This was a money decree. Substantial loss would only attach if an applicant demonstrates that if the decretal money is paid over, it will not be recovered if the intended appeal is successful. Such is demonstrated by stating on oath that a respondent as a man of straw whereby the evidentiary burden would shift to such a respondent to prove otherwise. There was no such averment in the affidavit in support of the application for stay. There having been no such averment, there was no obligation on the part of the respondent to show that he was a man of means. 13. Finally, the applicant did not offer security. It is expected that such an offer when made on oath is a sign of good faith. The Court then determines the sort of security to be provided. In the present case, no offer of security was made. 14. In view of the foregoing, the two applications are without merit and are hereby dismissed with costs. It is so ordered. **DATED** and **DELIVERED** at Kisumu this **24th** day of **July, 2026**. 1. **MABEYA, FCI Arb** **JUDGE**