https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8679

Nderitu v Muchendu t/a Icon Auctioneers & another (Commercial Appeal E224 of 2025) [2026] KEHC 8679 (KLR) (Commercial and Tax) (18 June 2026) (Ruling) Neutral citation: [2026] KEHC 8679 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Commercial Appeal E224 of 2025 RC Rutto, J June 18, 2026 Between David King’ori Nderitu Applicant and Jeremiah Muchendu t/a Icon Auctioneers 1st Respondent Avtar Singh Suri 2nd Respondent Ruling 1.Before this Court for determination is the Notice of Motion dated 8th February, 2026, filed by the Applicant seeking the following orders:-a.That this Honourable court be pleased to extent the time within which the appellant/Applicant herein is to deposit the security for costs from close of business on 21st November 2025 to 7th February 2026 as ordered in its order dated 18th November 2025.b.That this Honourable court be pleased to accept the deposit of Kshs 500,000/= paid on 7th February 2026 through receipt number DB-0037683 and the Appellant/Applicant be deemed to have complied with the court’s order issued on 18th November 2025 regarding the deposit of security for costs.c.Costs of this application be in the cause. 2.The application is premised on the grounds set out on its face and is supported by the affidavit sworn by the Applicant. In essence, the Applicant avers that by the court’s order dated 18th November, 2025, he was required to deposit half the decretal sum as a condition for grant of stay of execution of the decree of the lower court. He explains that he was unable to raise the said amount within the prescribed period and therefore failed to comply with in time. He further avers that during the mention on 25th November, 2025, he sought leave to substitute the monetary security with a motor vehicle, which request was declined. 3.He states that he eventually raised and deposited the required amount on 7th February, 2026, albeit out of time, necessitating the present application. He maintains that the delay was neither deliberate nor intended to obstruct justice and that the Respondents will suffer no prejudice if the application is allowed. 4.The application is opposed. The 2nd Respondent filed a Replying Affidavit sworn on 5th March, 2026. He deposes that the Applicant has failed to comply with the court orders without sufficient cause. He contends that he has suffered prejudice as he has been denied the fruits of judgment, and that rental income, which formed the basis of the dispute, is the primary source of livelihood. He further states that the Applicant’s failure to settle the outstanding sum of Kshs 1, 057, 773/=, forced him to resort to borrowing, thereby exposing him to financial hardship and demands. He states that he is facing demands from his creditors and the more he does not pay off the debts, the more he is facing financial turmoil. 5.The application was canvassed by written submissions. The Applicant filed submissions dated 23rd March, 2026, and the 2nd Respondents’ filed submissions dated 12th March, 2026. Applicant’s submissions 6.The Applicant submits that the period granted for compliance was unreasonably short, particularly in light of the substantial amount required. He submits that on 25th November, 2025, his advocate candidly informed the court of his financial constraints and proposed the provision of a motor vehicle as alternative security in place of the cash deposit. That, although the court declined the proposal, it demonstrated genuine intention to abide by the court’s directions. He further submits that following the rejection of the proposal alternatively, he liquidated the said motor vehicle and secured a loan using it as collateral, thereby raising the required sum which he deposited on 7th February, 2026. 7.The Applicant contends that this conduct demonstrates good faith, diligence and commitment to complying with the court’s orders despite the financial difficulties he faced. He urges the Court to find that the three-day period granted for the deposit of Kshs. 500,000/= was too short and that the delay in compliance was neither deliberate nor intended to obstruct the course of justice. He submits that the Respondents will suffer no prejudice if the application is allowed, since the decretal security is in court. 2nd Respondent’s submissions 8.The 2nd Respondent identified three issues for determination that is, whether the orders of stay of execution dated 18th November, 2025, were conditional; whether the delay has been sufficiently explained and whether the Respondents will suffer prejudice if the application is granted. 9.On the first issue, the 2nd Respondent submits that the stay orders issued on 18th November, 2025, were conditional requiring strict compliance within the stipulated timeline. He argues that the Applicant’s failure to comply with the condition within the stipulated period, led to automatic lapse of the stay orders which cannot be revived through the present application. Reliance is placed on the case of ELC Appeal No. 41 of 2018 Daudi Abudallahi Kutu v Lawrence Koskei Koiborkera [2021] eKLR and the Court of Appeal Civil Application E174 of 2025 Patel v Shah [2025] KECA 1259 (KLR), to urge that the failure to comply with the court orders renders the application moot and vacates the stay orders granted on 18th November, 2025. 10.On whether the delay is excusable, the 2nd Respondent argues that no sufficient explanation has been provided and that the application is an afterthought. He relies on Order 50, rule 6 and Order 42, rule 6 of the Civil Procedure Rules as well as the case of Civil Appeal 114 of 2006 Lochab Brothers Limited versus Lilian Munabi Nganga & others [2007] eKLR, to submit that the Applicant has not met the threshold for extension of time. 11.On prejudice, the 2nd Respondent submits that he continues to suffer substantial financial loss and hardship, and urges the Court to dismiss the application with costs. Analysis and Determination 12.I have carefully considered the application, the affidavits on record, and the submissions by parties. In my view the sole issue for determination is; Whether the Applicant has demonstrated sufficient cause to warrant the enlargement of time to deposit the security ordered by the court and whether the deposit made on 7th February, 2026, should be deemed as compliant with the Court’s orders issued on 18th November, 2025. 13.The power of the court to enlarge time is anchored in Order 50, rule 6 of the Civil Procedure Rules which grants the Court discretion to extend time fixed for doing any act or taking any proceedings under the Rules or by an order of the court, as the justice of the case may require, notwithstanding that the application is made after the expiration of the prescribed period. The discretion conferred upon the court under the said provision, though wide, must be exercised judiciously. 14.The guiding principles on whether or not to extend time were succinctly set out by the Supreme court in the case of Salat v Independent Electoral and Boundaries Commission & 7 others (Application 16 of 2014) [2014] KESC 12 (KLR) (Civ) (4 July 2014) (Ruling) Where the Court emphasized consideration of the length of delay, the reason for the delay, whether the delay is excusable, the prejudice likely to be suffered by the opposing party if the extension is granted and the overarching obligation of the court to administer substantive justice. 15.The discretion to enlarge time is intended to ensure that deserving litigants are not shut out from the seat of justice on account of procedural lapses where a reasonable explanation has been offered. 16.It is common ground that the Applicant failed to comply with the order contained in the ruling delivered on 18th November, 2025, requiring deposit of half of the decretal sum, being Kshs. 500,000/=, on or before 21st November, 2025. The explanation advanced is that the period granted, three days, was insufficient to mobilize the required funds. The record further shows that shortly thereafter, the Applicant returned to court on 25th November, 2025, and disclosed his financial difficulties while proposing an alternative form of security. Although the proposal was declined, it cannot be said that the Applicant remained indolent or indifferent to the court orders. 17.The Applicant has further demonstrated that he took steps to raise the required funds, ultimately depositing the full amount on 7th February, 2026. While the delay, approximately two and a half months, is not insignificant, the explanation offered, viewed in its totality, reflects financial difficulty rather than willful disobedience or disregard of court orders. 18.The 2nd Respondent has argued that the conditional stay orders automatically lapsed upon non-compliance and cannot be reviewed through the present application. While the proposition is legally sound, it does not oust the Court’s jurisdiction under Order 50, rule 6 to enlarge time where sufficient cause has been shown. Each case must be determined on its own merits, and the court retains discretion to intervene where justice demands. 19.On the question of prejudice, the 2nd Respondents concerns are not without merit. A successful litigant is entitled to enjoy the fruits of judgment without undue delay. However, the purpose of security is to safeguard that very interest pending appeal. In the present case, the required sum has already been deposited, thereby substantially securing the Respondent’s position. 20.In my considered view, denying the application notwithstanding the deposit already made would elevate procedural technicalities over substantive justice. The delay has been explained, albeit not flawlessly, and no irreparable prejudice has been demonstrated that cannot be mitigated by the security already furnished. 21.Guided by Sections 1A and 1B of the Civil Procedure Act and Article 159(2)d of the Constitution, this Court is obligated to administer justice in a manner that is just, proportionate, and devoid of undue technicality. While parties must comply with court orders, the court must equally avoid shutting out litigants where defaults have been cured and justice can still be served, and no irreparable prejudice has been demonstrated. 22.I am therefore satisfied that the Applicant has established sufficient cause to warrant the exercise of this Court's discretion. 23.Consequently, the Notice of Motion dated 8th February, 2026, is hereby allowed on the following terms;a.Time for depositing the security ordered on 18th November, 2025, is hereby enlarged to 7th February, 2026.The deposit of Kshs. 500,000/= made on 7th February, 2026, is hereby deemed as having been duly made in compliance with the orders of this Court. The costs of the application shall abide the outcome of the appeal. 24.Orders accordingly. DELIVERED, DATED AND SIGNED VIRTUALLY THIS 18TH DAY OF JUNE, 2026RHODA RUTTOJUDGEIn the presence of;Court Assistant: WabwireMr. Osoro holding brief for Mr. Kioko for the AppellantMs. Kemei holding brief for Mr. Oketch for the Respondent