https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7091

Baharati Limited v Mwihaki & another (Suing as the personal representatives of the Estate of Joshua Mutuku Muthike - Deceased) (Miscellaneous Civil Application E186 of 2025) [2026] KEHC 7091 (KLR) (13 May 2026) (Ruling) Neutral citation: [2026] KEHC 7091 (KLR) Republic of Kenya In the High Court at Machakos Miscellaneous Civil Application E186 of 2025 NIO Adagi, J May 13, 2026 Between Baharati Limited Applicant and Anne Wangari Mwihaki & Alex Karuga (Suing as the personal representatives of the Estate of Joshua Mutuku Muthike - Deceased) Respondent Ruling 1.This ruling is on the Applicant’s Chamber Summons application dated 16th June, 2025 seeking for the following Orders:a.Spentb.The Applicant be granted leave to Appeal outside the prescribed time, which Appeal is premised on the grounds set out in the annexed Memorandum of Appeal.c.There be a stay of execution of the judgment of the Honourable Court delivered on 30/04/2025 pending the hearing and determination of this Application.d.There be a stay of execution of the judgment of the Honourable Court delivered on 30/04/2025 pending the hearing and determination of the intended Appeal.e.The Honourable Court be pleased to issue such further and other orders and directions as it may deem fit and just to grant.f.Costs be in the cause. 2.The application is supported by the supporting affidavit sworn by RUTH MBALELO, the Applicant’s legal officer on 16th June, 2025 and premised on the grounds on the face thereof. The Applicant’s case is that the Honourable Trial Court delivered judgment in this matter on 30/04/2025 as against the Applicant in award of; pain and suffering at Kshs.60,000/-, loss of expectation of life at Kshs.200.000/-, loss of dependency at Kshs.8,616/=, special damages of Kshs.82,850/- and liability at a 100% in favour of the Respondents as against the Applicant plus costs. Upon delivery and receipt of a copy of the said Judgment, the Advocates for the Applicant advised the instructing client on the Judgment herein. Upon receipt of the judgment advice, the Applicant and its insurers were unsatisfied by the judgment of the court and conceived an intention to appeal on grounds as laid out in the Memorandum of Appeal annexed to this Application. By the time the intention to appeal was conceived, the statutory timelines within which to appeal had lapsed on 30/05/2025. The delay to lodge the intended Appeal was not deliberate, neither is it inordinate. The same was caused by the above-explained reasons. The Applicant is apprehensive that the Respondents will proceed with the execution of the said judgment if stay of execution of judgment is not granted. This will occasion irreparable damage and detriment to the Applicant as they consider their appeal to be a meritable appeal with high likelihood of success the outcome of which will be nugatory if determined way after execution has been undertaken. The said Appeal is made in good faith and is not meant to deny the Respondents from enjoying the fruits of the judgment. The Respondents will not suffer prejudice. The Applicant and its insurers are ready and willing to furnish security by means of depositing the decretal sum in an interest earning account in the joint names of counsels for the Respondents and the Applicant and to comply with any conditions and/or requirement that this Court may deem fit to direct. This Application has been made within reasonable time. 3.The application is opposed by ANNE WANGARI MWIHAKI & ALEX KARUGA the Respondents herein vide their Replying Affidavit sworn on 23rd June 2025. The Respondents aver that the application dated 16.06.2025 together with supporting affidavit has been read and explained to them by their advocates on record and they swear the affidavit in strong opposition thereto. They state that they are informed by their advocates on record which information they verily believe to be true that; the said application is fatally defective, frivolous, lacking in merit, an abuse of the court process, and is deliberately calculated to defeat justice and delay the lawful enjoyment of a judgment obtained in our favour; the said application seeks orders for leave to appeal outside the prescribed time and stay of execution of the judgment delivered on 30th April 2025 pending hearing and determination of the instant application and the appeal; the threshold for leave to appeal outside of the prescribed time and stay of execution has not been met and they urge this Honourable Court to dismiss the application with costs. 4.The Respondents state that Judgment in this matter was delivered on 30th April 2025 and the Applicants, through their advocates, were duly aware of the same. The law provides under Section 79G of the Civil Procedure Act, the Applicant had 30 days, that is until 30th May 2025, to file an appeal. They failed to do so. The current application dated 17th June 2025 was filed 48 days after judgment and 18 days after the lapse of the appeal window, without any compelling explanation for such inordinate delay. The Applicant has not provided any plausible or justifiable reason why they failed to seek instructions and/or file the appeal within the statutory time frame. Mere internal delay on the part of the client is not sufficient justification to invoke the court's discretion. It is not until 16th June 2025, upon the Respondents’ application through their Advocates on record for the court decree and engagement of Betabase Auctioneers to commence execution, that the Applicant rushed to file the instant application and attached a draft Memorandum of Appeal, clearly indicating a reactionary move designed solely to forestall execution. The Respondents annexed and marked AW 1a, b & c copies of the letter requesting for decree, instruction letter to BetaBase auctioneers and the Application for warrants. 5.The Respondents aver that it is evident that the Applicant had been monitoring the court online CTS platform closely, and only acted once the Respondents took proactive steps to enforce the judgment, which amounts to bad faith and abuse of court process. The Respondents state that they have already incurred additional costs and gone to great lengths to secure the fruits of the judgment, including payment of further court fees of Kshs.69,000/= and instructing auctioneers, which would now be in vain if the application is allowed at this late stage. This is confirmed by annexure marked AW-2 which is a copy of the further court fees receipt. That the Applicants' draft Memorandum of Appeal raises no arguable or substantial points of law or merit; it is frivolous and appears to be an afterthought intended to delay justice and frustrate us further. In addition, the Applicant has not demonstrated what prejudice, if any, they stand to suffer if this application is dismissed. On the contrary, it is the Respondents who shall suffer irreparable loss and expense, having followed all legal procedures to enforce a valid court judgment. The Applicant's silence and inaction for 48 days cannot now be rewarded with equitable relief. Litigation must come to an end, and the court must not entertain unnecessary and speculative appeals, especially when a party has sat on their rights only to act when execution is imminent. 6.The Respondents position is that it is trite law that equity does not aid the indolent and that he who comes to equity must come with clean hands. The Applicant has approached this Honourable Court only when it suited their convenience and to defeat lawful execution. The Applicant has not demonstrated what specific prejudice they would suffer if the application is dismissed. This court's discretion is not exercised in a vacuum, but based on proof of real hardship, which the Applicant has not shown. Their omission further confirms their lack of intention to pursue an appeal until forced by circumstances and the totality of the Applicant's conduct shows lack of seriousness, deliberate delay, and an intent to frustrate the Respondents, which this Honourable Court ought not to indulge. That allowing the application will cause great prejudice and injustice to the Respondents who have lawfully and diligently pursued execution within the legal bounds. That in the interest of justice, equity, and the need to protect the sanctity and finality of judgments, this application ought to be dismissed with costs to the Respondents. But without prejudice to the foregoing, in the event that the court allows the application, the Respondents shall pray for the Applicant to be ordered to deposit the entire decretal sum plus costs as per the annexed copy of the Court Decree dated 30.04.2025 and marked AW-3 and the further court fees as security within 7 days. 7.The application was canvassed by way of written submissions and both parties filed their respective submissions. Those submissions replicate the summary above and I wish not to duplicate the same here. Analysis and determination 8.I have considered the application, the supporting affidavit, the replying affidavit and the rival submissions filed by the Parties’ counsel as well as the judicial decisions relied upon. In my view, the issues for determination are as follows:-a.Whether the court should exercise its discretion to grant the applicant leave to file their appeal out of time;b.Whether the applicant has met the prerequisite for grant of stay of execution pending appeal; a. Whether the court should exercise its discretion to grant the applicant leave to file his appeal out of time; 9.Section 79G of the Civil Procedure Act states: -“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 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. 10.It is clear from the wording of Section 79G of the Civil Procedure Act that before the court considers extension of time, the applicants must satisfy the court that that they have good and sufficient cause for filing the appeal out of time. This principle was enunciated in the case of Diplack Kenya Limited vs William Muthama Kitonyi [2018] eKLR that an applicant seeking enlargement of time to file an appeal or admission of an already filed appeal must show that he has a good cause for doing so. 11.The Supreme Court in the case of Nicholas Kiptoo Korir arap Salat vs IEBC and 7 Others [2014] eKLR enunciated the principles applicable in an application for leave to appeal out of time. The court stated inter alia that:-“The underlying principles a court should consider in exercise of such discretion should include:-a.Extension of time is not a right of any party. It is an equitable remedy that is only available to a deserving party at the discretion of the court;b.A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;c.Whether the court should exercise the discretion to extend time, is a consideration to be made on a case by case basis;d.Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;e.Whether there will be any prejudice suffered by the respondent if the extension is granted;f.Whether the application has been brought without undue delay. 12.Similarly in the case of Paul Musili Wambua vs Attorney General & 2 Others [2015] eKLR, the Court of Appeal in considering an application for extension of time and leave to file the Notice of Appeal out of time stated the following:-“…….it is now settled by a long line of authorities by this court that the decision of whether or not to extend the time for filing an appeal the Judge exercises unfettered discretion. However, in the exercise of such discretion, the court must act upon reason(s) not based on whim or caprice. In general, the matters which a court takes into account in deciding whether or not to grant an extension of time are; the length of delay, the reason for the delay, the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the application is granted.” 13.Applying the above principles to the present case, the judgment herein was delivered on 30.04.2025 and the appeal ought to have been filed by 30.05.2025. The Applicant filed the current application together with the annexed Memorandum of Appeal on 18.06.2025. The instant application dated 17th June 2025 was filed 48 days after judgment and 18 days after the lapse of the appeal window. The Applicant has attributed the delay in filing its appeal to the need for a decision on the appeal between himself and his insurers in ascertaining the options available with regard to the judgement. The Applicant advised his advocates that it preferred an appeal owing to the high amount on quantum awarded to the Respondents. By the time the Applicant got back to his advocates in regard to his opinion to appeal, the statutory time limit for appeal had lapsed. 11.It is my position that nothing stopped the Applicant from allowing his Advocates file a Memorandum of Appeal within the stipulated 30 days and if need be, upon the issuing of further instructions, apply to make amendments to it if necessary. 12.Although I consider the 18 days delay not to be inordinate delay, I find the reasons for the delay not to have been satisfactorily explained to the court as required by the law. In my view, the Applicant has not given any plausible reasons for the delay in filing the appeal. 13.I have perused the intended Memorandum of Appeal and the judgment of the trial court and noted that the appeal faults the trial court on both liability and assessment of damages which it claims to be excessively high. As such, the appeal cannot be said to be without merit although at this juncture, I will restrain from delving into the merits of the appeal. It is my view that the Applicant ought to be given a chance to file his appeal out of time and prosecute it on merits. b. Whether the applicant has met the prerequisite for grant of stay of execution pending appeal; 14.It is trite law that an appeal does not operate as an automatic stay of execution. The conditions which a party must establish in order for the court to order stay of execution are provided for under Order 42 Rule 6(2) Civil Procedure Rules. Order 42 Rule 6 of the Civil Procedure Rules stipulates:-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 thereon as may to it seem just and any person aggrieved by an order of stay made by the court from whose decision the Appeal is preferred may apply to the appellate court to have such orders set aside.2.No order for stay of execution shall be made under sub rule 1 unless:-a.The Court is satisfied that substantial loss may result to the 1st Applicant unless the order is made and that the application has been made without unreasonable delay; andb.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. 15.Thus, under Order 42 Rule 6(2) of the Civil Procedure Rules, an applicant should satisfy the court that:1.Substantial loss may result to him/her unless the order is made;2.That the application has been made without unreasonable delay; and3.The applicant has given such security as the court orders for the due performance of such decree or order as may ultimately be binding on him. 16.Substantial loss was clearly explained in the case of James Wangalwa & Another vs Agnes Naliaka Cheseto [2012] eKLR:-“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…the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory” 17.The Applicant contends that it is apprehensive that the Respondents will proceed with the execution of the said judgment if stay of execution of judgment is not granted. This will occasion irreparable damage and detriment to the Applicant as they consider their appeal to be a meritable appeal with high likelihood of success the outcome of which will be nugatory if determined way after execution has been undertaken. 18.It is trite law that execution is a lawful process and it is not a ground for granting stay of execution. The Applicants are required to show the manner in which execution will irreparably affect them or will alter the status quo to their detriment therefore rendering the appeal nugatory. The Applicant has failed to demonstrate substantial loss in my considered view. 19.On whether the application has been made without unreasonable delay. As already observed the delay was for 18 days, this period is not inordinate and excusable, the Applicant deserves to be heard on its appeal. 20.On the issue of security for costs, the purpose of security was explained in the case of Arun C. Sharma vs Ashana Raikundalia t/a Raikundalia & Co. Advocates & 2 Others [2014] eKLR the court stated:-“The purpose of the security needed under Order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the applicant. It is not to punish the judgment debtor…..Civil process is quite different because in civil process the judgment is like a debt hence the applicants become and are judgment debtors in relation to the respondent. That is why any security given under Order 42 Rule 6 of the Civil Procedure Rules acts as security for the due performance of such decree or order as may ultimately be binding on the applicants. I presume the security must be one which can serve that purpose. 21.Evidently, the issue of security is discretionary and it is upon the court to determine it and set its terms. The Applicant has intimated its readiness and willingness to furnish security by means of depositing the decretal sum in an interest earning account in the joint names of counsels for the Respondents and the Applicant and to comply with any conditions and/or requirement that this Court may deem fit to direct. The Respondents too pray for the Applicant to be ordered to deposit the entire decretal sum plus costs as per the annexed copy of the Court Decree dated 30.04.2025 and marked AW-3 and the further court fees as security within 7 days. 22.It is imperative that the right of appeal must be balanced against an equally weighty rigid right of the plaintiff/claimant to enjoy the fruits of the judgment delivered in his/her favour. In the case of Samvir Trustee Limited vs Guardian Bank Limited [2007] eKLR the court stated:-“The Court in considering whether to grant or refuse an application for stay is empowered to see whether there exist any special circumstances which can sway the discretion of the court in a particular manner. But the yardstick is for the court to balance or weigh the scales of justice by ensuring that an appeal is not rendered nugatory while at the same time ensuring that a successful party is not impeded from the enjoyment of the fruits of his judgment. It is a fundamental factor to bear in mind that a successful party is prima facie entitled to fruits of his judgment; hence the consequence of a judgment is that it has defined the rights of a party with definitive conclusion.” 23.Consequently, I do find that the Appellant/Applicant is entitled to pursue its appeal on merit. I do allow the application dated 17.06.2025 and make the following orders:-1.Leave is granted to the Appellant/Applicant to file appeal out of time against the judgment delivered in Machakos CMCC No. E309 of 2022 dated and delivered on 30th April, 20252.The Appellant/Applicant shall to file and serve its Memorandum of Appeal as per the attached draft within Seven (7) days hereof and thereafter to compile, file and serve the Record of Appeal within Forty-Five (45) days of this ruling in default, appropriate directions shall be given on the matter including dismissal of the appeal.3.Execution of the Judgment/decree in Machakos CMCC No. E309 of 2022 is hereby stayed pending the hearing and determination of the appeal on condition that the Appellant/Applicant shall deposit the entire decretal amount into court OR into a joint interest earning Bank account to be opened in a reputable Bank in the names of the Advocates’ law firms on record for parties within fifteen (15) days hereof in default the Respondents will be at liberty to execute.4.The Applicant shall pay to the Respondents throw away costs of this application assessed at Kshs.20,000/= as well as any Auctioneers official charges so far incurred herein.5.A mention date to be fixed to confirm compliance with order 2, 3 and 4 above and for further directions.6.This Miscellaneous file will be closed on the next mention date.It is hereby so ordered. RULING WRITTEN, DATED & SIGNED AT MACHAKOS THIS 13TH MAY 2026NOEL I. ADAGIJUDGEDELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 13TH MAY 2026