https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11844

**** **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAKURU** **MISCELLANEOUS CIVIL APPLICATION NO. E293 OF 2025** **COLLINS ADHIAMBO OKINDO ……………………..APPLICANT** **VERSUS** **NEWTON KIPLANG’AT CHERUIYOT…………… RESPONDENT** **RULING** 1. By Notice of Motion dated **3/7/2025**, the Applicant craves these reliefs; 1. **Spent.** 2. **Spent.** 3. **This Honourable Court be pleased to allow the firm of M/S KRK Advocates Llp to come on record for Applicants/Defendant.** 4. **That Further the firm of KRK Advocates-Llp be deemed to be properly on record as advocates of the Applicants/Defendant in place of M/S Kairu and Mccourt Advocates.** 5. **This Honourable Court be pleased to grant the Applicant leave to appeal out of time in respect to the judgment/decree delivered in Nakuru SCCC 182 of 2025 by Hon. Dominic Macharia (Senior Resident Magistrate).** 6. **This Honourable Court be pleased to grant an order of stay of execution of the judgment and/or the decree delivered on or 22nd August, 2025 and all consequential orders arising therefrom pending the hearing and determination of the intended Appeal herein.** 7. **This Honourable Court be pleased to issue an Order that One-quarter (¼) of the Decretal sum being Kshs. 250,000/= in the Joint interest earning account in the name of both the advocates as security pending hearing and determination of the intended Appeal herein.** 8. **This Honourable Court be pleased to issue any other Order as it may deem just, appropriate and expedient in the interest of justice.** 9. **Costs of this application be provided for.** 2. The Application arises from Judgment of the lower court (Hon. Dominic Macharia - SRM) in which the Respondent was granted certain sums in general and special damages together with costs and interest against the Appellant in the said **Nakuru SCCC No. E182 of 2025**. Aggrieved by the decision, the Applicant intends to appeal to this court and brings the Application in the meantime. 3. The Applicant's Advocate (**Audrey Mwira**) swore an affidavit in support of the Motion. *Inter alia,* she avers that she is an Advocate practising in the law firm of **KRK Advocates LLP** who have executed a consent dated 8/10/2025 with the Previous Advocate of the Applicant (**Kairu McCourt Advocates**) to come on record as representing the Applicant. Counsel states that Judgment in the sums of Kshs. 800,000/=, 182,419.90 and Kshs. 43,540/= in general damages for pain & suffering, damages for loss of earnings, and special damages respectively, was entered on 22/8/2025 against the Applicant in **Nakuru SCCC NO. 182 of 2025.** The Applicant is aggrieved by the Judgment and intends to appeal. Meantime, he seeks an order of stay of execution of the lower court’s decree fearing that his intended appeal would be rendered nugatory if the relief is not granted. 4. The Court is told that the Respondent's sources of income are unknown and it is reckoned that there is a high probability that he would not be able to refund the decretal sum if the intended appeal succeeds. 5. The Applicant's Counsel further states that he is willing and ready to furnish security for costs, proposing to deposit ¼ of the decretal sum computed as **Kshs. 250,000/=** in a joint interest earning account in the names of the Advocates for the Parties as a condition for grant of an order of stay pending Appeal. 6. In the premises, the Applicant craves the reliefs sought, adding that no prejudice would be occasioned to the Respondent. 7. The Respondent opposes the Application *vide* his affidavit in reply sworn on 16/12/2025. He *inter alia* contends that the Applicant is all along aware of the status of the lower court's proceedings including delivery of the impugned Judgment. The delay to bring the Application is not therefore justified as it was only filed when the execution process commenced. 8. Delay to give instructions to counsel is said not to have been sufficiently explained. If court is ,however, inclined to allow the Application, the Respondent urgest the court to order the Applicant to pay out ½ of the decretal sum and deposit the other half in court. 9. Learned Counsel for the parties filed submissions which the court has perused against the Application, the Respondents’ reply and all annexures to the parties’ rival affidavits. Counsel maintain that their clients’ respective positions on the application for leave to appeal out of time and stay of execution pending the intended appeal. 10. S**ection 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** which 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. 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 vs Director of Public Prosecutions & 3 Others (2015) eKLR** )} 2. The court is obliged to consider the competing interests of the parties to such an application with an eye to ensuring that the appeal is not rendered nugatory and the Respondent also gets consideration having a valid judgement in his favour. 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. Further 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. The issues for determination are whether the Applicant has shown that he deserves exercise of the court’s discretion in his favour to enlarge time to file appeal against the impugned judgement and obtain an order for stay of execution pending appeal in the circumstances of this case. 3. 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. In **Mohsen Ali & Another vs Priscillah Boit & Another, E& LC Case No. 2000 of 2012 (2014) eKLR** the court explained “unreasonable delay’’ as dependent on the surrounding circumstances of each case. 3. The Applicant has not satisfactorily explained the long delay of around 2 months to bring this application . The Applicant himself has not sworn an affidavit to explain in relevant detail why this long period was taken to seek leave to appeal out of time. An advocate’s evidence from the bar is not sufficient to discharge this burden as it is only the Applicant that is privy to information or circumstances that allegedly caused the delay. This delay is prejudicial to the Respondent who is unnecessarily being kept off the fruits of his judgement . 4. The Applicant does not therefore deserve extension of time to lodge appeal. This finding is sufficient to dispose of the application , but I will comment on its merits, if only for academic purposes. 5. Regarding the prayer for stay of execution**, 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 contends that they have brought the Motion without unreasonable delay. It is should, however, be noted that even delay of one day, if unexplained, is bad enough. The Applicant has not satisfactorily explained the long delay of about 2 months to bring this Application for the reasons given hereinabove. 2. In the circumstances, the delay is found to be unreasonable and inexcusable, therefore this legal condition has not been satisfied. 3. 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. 4. 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”. 5. The Applicant has not substantially satisfied the requirement for offer security for costs, having offered to deposit only 1/4 of the decretal sum. 6. Determination of the Application would turn on the question of substantial loss, if any, the Applicant 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 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. 7. 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 Respondent’s 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 quiete satisfied the key substantial loss test as well as the requirement to institute such Application without inordinate or unreasonable delay. The onus was on the Applicant to satisfy all the requisite conditions. 4. The Application is accordingly dismissed in its entirety with costs to the Respondent. **J. M. NANG’EA, JUDGE.** **Ruling delivered virtually this 24th day of July , 2026.** **In the presence of:** **The Advocate for the Applicant, Ms Cherotich for Ms Mwira.** **The Advocate for the Respondent, Ms Chepkorir for Ms Chelang’at.** **Court Assistant, Jeniffer** **J. M. NANG’EA, JUDGE.**