https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9116

**** **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAKURU** **MISCELLANEOUS CIVIL APPLICATION NO. E044 OF 2026** **BUSCAR EA LIMITED …………………...………………….. APPLICANT** **VERSUS** **IRENE WAWIRA KATHURI ……………………….……. RESPONDENT** **RULING** 1. *Vide* Notice of Motion dated 11th February 2026 the Applicant craves the following reliefs;- 2. ***Spent*** 3. ***THAT the firm of M/S KRK ADVOCATES LLP be deemed to be properly on record as advocates for the Applicant in place of M/S Kairu & Mc Court Advocates.*** ***3) Leave to appeal Judgement and decree in Molo CMCC NO. E330 of 2021 by Hon. S.K Mutai - SPM, out of time.*** ***4) Spent.*** ***5) Spent.*** ***6) THAT there be stay of execution of the said judgement and/or decree of 9/10/2025 together with any consequential orders issued pending hearing and determination of the intended appeal.*** ***7) THAT the court be pleased to lift and/or set aside the decree, warrants of attachment and sale dated 22/1/2026 as they are irregularly attached. (*sic*)*** ***8) THAT the court be pleased to allow the Applicant to deposit half the decretal sum in a joint interest-earning account in the names of Legal Counsel for the parties and the other half be deposited into court pending hearing and determination of the intended appeal.*** ***9) THAT the court does order that Crater View Auctioneers tax their costs in court.*** ***10) THAT the court does issue any other order deemed just in the interests of justice.*** ***11) THAT the costs of this Application be provided for.*** 1. The Application arises from a suit lodged in the lower court against the Applicant, in which the Respondent was *inter alia* granted Judgment for general and special damages in the sums of Kshs. 400,000/= and Kshs. 7,575/= respectively in above stated **Molo CMCC No. E330 of 2021**. Aggrieved by the decision, the Applicant intends to appeal and relies on a number of grounds of appeal as per Memorandum of Appeal filed herein. 2. By Affidavit in Support of the Motion, the Applicant’s Advocate (Christine Nekesa) *inter alia* avers that they were instructed by Directline Assurance Company Limited to represent the Applicant. Delay to bring this Application is said to have been occasioned occasioned by their instructing Client’s Claims Manager going on maternity leave without asking another officer to stand in for her. Necessary instructions to Counsel to lodge appeal were only given after stay of execution period the court gave had lapsed. It is further contended that the Respondents’ ability to refund the decretal sum if paid out is in doubt as his income is either unknown , insufficient or undisclosed. It is, therefore, feared that the Applicant could be exposed to substantial loss and the intended appeal rendered nugatory if this Application is not allowed. The Applicant through its Advocate laments that the Respondent had already proclaimed some of its specified vehicles through Crater View Auctioneers. 3. The Applicant expresses willingness and readiness to deposit half of the decretal sum said to amount to Kshs. 273,116/= in joint interest-earning bank account in the names of the Advocates for the Parties. The court is also told that the Applicant is willing to abide by any terms and conditons the court may impose in allowing stay of execution pending appeal. 4. Through affidavit evidence in reply, the Respondent opposes the Motion. *Inter alia*, she laments that the Applicant failed to satisfy the decree of the lower court in her favour. The court is told that this Application was only brought after commencement of execution proceedings. According to the Respondent, the Applicant also dishonestly filed a similar Application in the lower court after bringing this Application. 5. The Respondent further contends that the Applicant does not deserve the orders sought since it was well aware of the Decree but sat on its right of appeal. It is argued that the execution process herein is regular and so the Respondent should be allowed to enjoy the fruits of litigation. 6. Learned Counsel for the parties filed submissions which the court has perused against the Application, the rival affidavits and the record. At the outset, I allow the Applicant’s new Advocates to come on record after Judgment having executed a consent in this regard between them and the out-going Advocates as provided for under the **Civil Procdure Rules 2010.** 7. The issues remaining for determination are: whether the Applicant has made a case for grant of leave to appeal out of time; whether stay of execution pending appeal is merited and the order to make as to the costs of the Application. 8. **Section 79 G of the Civill Procedure Act** provides 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. Furthermore, case law in **Edith Gichungu vs Stephen Njagi Thoithi (2014) eKLR** lists the following factors among others to be considered before determining whether or not to grant leave to file an Appeal out time; **“ … the period of delay; the reasons for the delay; the degree of prejudice to the respondent if the application is granted, and whether the matter raises issues of public importance.’’** 1. In **Mohsen Ali & Another vs Priscillah Boit & Another, E& LC Case No. 2000 of 2012 (2014) eKLR** the court explained **“unreasonable delay’’** to bring an action as dependent on the surrounding circumstances of each case. 2. In **Nicholas Kiptoo Arap Korir Salat vs Independent Electoral & Boundaries Commission & 7 Others (2015) eKLR** the following principles are laid down as guiding the court’s discretion whether or not to enlarge time; **“a) Extension of time is not a right but an equitable remedy only available to a deserving party.** 1. **Aparty seeking extension has the burden of laying the basis to the satisfaction of the court.** 2. **The court’s discretion depends on the circumstances of each case.** 3. **The question of any prejudice that may be suffered by the respondent should be taken ino account.** **And** 1. **The court should also consider whether the application was brought without undue delay.’’** 2. The court is also enjoined to consider the overriding objectives of civil litigation to ensure a just, expeditious, proportionate, and affordable resolution of disputes (see case la**w in [Kamlesh Mansukhalal Damki Patni V. Director of Public Prosecutions & 3 Others (2015) eKLR** ). 3. This Application is dated 11th February 2026 while the lower court’s Judgment was delivered on 9th October 2025 . The delay of 4 months or thereabouts is not explained or satisfactorily explained. A witness from the Applicant company ought to have provided evidence showing any internal challenges causing the delay, rather than having its Advocate give evidence from the bar. The long delay is prejudicial to the Respondent who is unnecessarily being kept off the fruits of her Judgment. 4. Besides, the Applicant did not either settle the decree or file the Appeal within the 30 days-stay of execution period given by the lower court. A beneficiary of such order ought to demonstrate *bonafides* by settling the Judgment debt or seeking appropriate legal remedies, within the stay period, instead of waiting until expiry of the period. 5. The Applicant’s contention that it brought the Motion without unreasonable delay is therefore unsatisfactory. It is should be noted that even delay of one day, if unexplained, may be bad enough The Applicant does not therefore deserve extension of time to lodge appeal in the circumstances of this matter. 6. **Order 42 rule 6 (1) (2) of the Civil Procedure Rules 2010** governs disposal of an application such as before me for stay of execution pending appeal. The legal provisions stipulate that such order may not be granted;- **“a. unless 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.”** 1. The Applicant has not satisfactorily explained the long delay to bring this Application for the reasons given hereinabove. In the circumstances, the delay is found to be unreasonable and inexcusable and, therefore, this legal condition has not been satisfied. 2. Provision of security for costs is a crucial condition precedent to grant of an order of stay of execution pending hearing and determination of an Appeal. This is a mandatory legal requirement that has to be complied with. The court has power to determine the appropriate security for costs but the Applicant must first express willingness and readiness to offer security. 3. In **John Odungo vs Joyce Irungu Muhatia [2014] eKLR** the court observed that an Applicant does not have to actually make a deposit of security to obtain an order of stay of execution. It suffices if he shows “preparedness as well as readiness to provide security should one be called upon to do so”. 4. The Applicant has satisfied the requirement for offer security for costs, having expressed willingness and readiness to comply. 5. Determination of the Application for stay of execution pending appeal turns on the question of substantial loss, if any, the Applicants might suffer if stay of execution is not ordered. The case of **Nyatera vs Nyakundi (Civil Appeal E033 of 2022) [2023]KEHC 3086 KLR) (16 March 2023) (Ruling)** is relevant for the proposition that the Applicant ought to show the manner in which his appeal would be rendered nugatoty if stay of execution is not ordered. The court opined in the case that it is not enough to say that because the Respondent intends to proceed with execution, he should be stopped because of the appeal. The court is therefore required to tread a delicate balance of the parties’ interests. As it is now trite, this is the cornerstone of the court’s discretion to grant or refuse stay of execution pending appeal. The onus is on the Appellant/Applicant to show on a balance of probability that the Respondent would not be able to refund the decretal sum if paid out and the appeal eventually succeeds. The court has the duty to consider the competing interests of the parties to such an Application with an eye to ensuring that an appeal is not rendered nugatory and the Respondent also gets consideration having obtained a valid Judgement. In **Daniel Chebutul Rotich & 2 Others vs Emirates Airlines, Civil Case No. 368 of 2001**, substantial loss was explained as hereunder; **“subsatantial loss is a relative term and more often than not can be assessed by the totality of the consequences which an applicant is likely to suffer if stay of execution is not granted and the applicant is therefore forced to pay the decretal sum’’.** 1. In **Tropical Commodities Ltd. International (in liquidation) (2004) 2 EA 331** my brother (*Ogolla J* )explained that ***substantial loss*** is a qualitative concept. It refers to;- “**any loss, great or small, that is of real worth or value as distinguished from a loss without value or a loss that is merely nominal.”** 1. The question of “substantial loss’’ is the cornerstone of the court’s jurisdiction and discretion to grant an order for stay of execution pending appeal (see case law in **Rhoda Mukuma vs John Abuoga (1988) KLR**). 2. In **RWW vs EKW [2019] eKLR** and **Re Global Tours & Travel Ltd HCWC No. 43 of 2000** in **Milimani HCMCA No. 1561 of 2007, Century Oil Trading Company Ltd vs Kenya Shell Ltd,** this court again explained that;- **“Where execution of a money decree is sought to be stayed, in considering whether the applicant will suffer substantial loss, the financial position of the applicant and that of the respondent becomes an issue. The court cannot shut its eyes when, it appears the possibility is doubtful of the respondent refunding the decretal sum in the event that the applicant is successful in his appeal. The court has to balance the interest of the applicant who is seeking to preserve the status quo pending the hearing of the appeal so that his appeal is not rendered nugatory, and the interest of the respondent who is seeking to enjoy the fruits of his judgement.”** 1. In **Shell Ltd vs Kibiru & Another (1986) KLR 410** it was famously postulated that; **“Substantial loss in its various forms is the cornerstone of the court’s jurisdiction to grant stay pending appeal. That is what has to be prevented. Therefore, without this evidence, it is difficult to see why the Respondents should be kept out of their money.’’** 1. Regarding the burden of proof, the Court of Appeal held in **National Industry Credit Limited vs Aquinas Francis Wasike & Another [2006] eKLR** that;- **“Once an applicant expresses a reasonable fact that a respondent would be unable to pay back the decretal sum, the evidential burden must then shift to the respondent to show whatever resources he has since that is a matter which is peculiarly within his knowledge.”** 1. The legal position elucidated in the cited Case Law has been reiterated in several recent cases including **Matata & Another vs Rono & Another (Civil Appeal No. E034 of 2024) [2024] KEHC 2799 (KLR) (19 March 2024) (Ruling)** and **Muinde Mulatya & Another (2021) eKLR** and **Kenya Commercial Bank Limited vs Sun City Properties Limited 7 & 5 Others (2012) eKLR**. 2. Based on the affidavit evidence of the parties neither of them has stated their financial position. The Applicant who shoulders the burden of proof has in particular not made out a *prima facie* case of the Respondents’ inability to pay back any decretal sum to warrant the latter to debunk the claim. 3. In the particular circumstances of this case, therefore, the Applicant has not quite satisfied the key substantial loss test as well as the requirement to institute such an Application without inordinate or unreasonable delay. The onus was on the Applicant to meet all the conditions stipulated hereinabove. 4. The upshot is that the prayers for leave to appeal out of time and stay of execution pending Appeal are declined. With respect to the prayer for taxation of the Auctioneer’s Bill of Costs, the same may be agreed or taxed/assessed. 5. The Respondent gets the costs of this Application. 6. Ruling accordingly. **J. M. NANG’EA, JUDGE.** **Ruling delivered virtually this 22nd day of June, 2026 in the presence of:** **The Advocate for the Applicant, Ms Mwira for Ms Nekesa.** **The Advocate for the Respondent, Ms Sitati.** **Court Assistant, Jeniffer.** **J. M. NANG’EA, JUDGE.**