https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8116

Anete v Ndungu (Commercial Appeal E009 of 2025) [2026] KEHC 8116 (KLR) (11 June 2026) (Ruling) Neutral citation: [2026] KEHC 8116 (KLR) Republic of Kenya In the High Court at Nakuru Commercial Appeal E009 of 2025 JK Sergon, J June 11, 2026 Between David Ouma Anete Appellant and Margaret Wambui Ndungu Respondent Ruling 1.Pursuant to sections 1A, 1B, 3A, 63E and 95 of the Civil Procedure Act, Order 42 Rule 6, Order 50 rule 6 and order 51 of the Civil Procedure Rules, the appellant took out the Notice of Motion dated 8th January 2026, and sought for the following orders inter alia:a.Enlargement of time within which to comply with the conditions attached to the stay of execution granted by this Court on 19th December 2025;b.Leave to deposit the original logbook for Motor Vehicle Registration Number KBU 021Q Toyota Corolla as security pending appeal in lieu of the cash deposit of Ksh. 300,000 ordered by the Court;c.Costs of the application. 2.The application is premised on the grounds stated on the face of motion. It is supported by the fact’s deponent in the affidavit of the Applicant. The Applicant avers that he filed an appeal against the judgment delivered in Nakuru SCCCOMM No. E2131 of 2024 and subsequently obtained a temporary order for stay of execution pending appeal. He avers that the Court directed him to deposit Ksh. 300,000/= as security for the due performance of the decree. 3.The applicant avers that the period granted for him to make the deposit expired on 9th January 2026. It is his submission that the period was too short to comply with. It is his averment that the period granted coincided with the December holidays in which most offices including his own advocates office was closed. He further states that he was unable to raise the cash deposit within the stipulated period and therefore seeks for extension of time. 4.The Applicant further avers that he is the registered owner of Motor Vehicle Registration Number KBU 021Q Toyota Corolla and that he is willing to deposit the original logbook thereof as security pending the hearing and determination of the appeal. He further urges the Court to exercise its discretion in his favor in order to preserve his right of appeal. 5.The Respondent filed a Replying Affidavit sworn on 20th February 2026 to oppose the motion. The Respondent contends that the Applicant has not demonstrated substantial loss, and that he has not provided any security for the due performance of the decree and has merely sought to delay her enjoyment of the fruits of a lawful judgment. 6.Furthermore, the Respondent asserts that the Applicant has not demonstrated good faith, pointing out that he has failed to apply for typed copies of the lower court proceedings to prosecute the main appeal. She maintains that she is legally entitled to enjoy the fruits of her judgment delivered on 4th December, 2025. 7.In the alternative, the Respondent prays that if this Court is inclined to grant a stay, the Applicant should be ordered to deposit the entire decretal sum plus accrued costs into a joint interest-earning account in the names of both advocates. 8.The Respondent further avers that the appeal lacks merit and that the continued delay in execution of the decree causes her prejudice and economic hardship. 9.After careful consideration of the grounds stated on the Notice of motion, plus the fact’s deponent in the rival affidavits, the issues arising for determination are first, whether the Applicant has established sufficient cause for enlargement of time. secondly, whether the application for stay should be granted. Thirdly, whether the proposed security is adequate for purposes of order 42 rule 6(2)(b) of the Civil Procedure Rules. 10.Pursuant to section 95 of the Civil Procedure Act, where any period is fixed or granted by the court for the doing of any act prescribed or allowed by the Act, the court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired. 11.Additionally, order 50 rule 6 of the Civil Procedure Rules provides that where a limited time has been fixed for doing any act under the Rules or by order of the Court, the Court has power to enlarge such time upon such terms as the justice of the case may require. 12.The principles for extension of time have been well settled in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR where the Supreme Court held as follows:“By filing an appeal out of time before seeking extension of time, and subsequently seeking the Court to extend time and recognize such ‘an appeal’, is tantamount to moving the Court to remedy an illegality. This, the Court cannot do. To file an appeal out of time and seek the Court to extend time is presumptive and in-appropriate. No appeal can be filed out of time without leave of the Court. Such a filing renders the ‘document’ so filed a nullity and of no legal consequence.” 13.In the present case, the Applicant has explained that the period within which compliance was required coincided with the December holiday season and that he was unable to mobilize the cash deposit of Ksh. 300,000/= within the limited period granted by the Court. The explanation given has not been shown to be unreasonable or intended to obstruct the course of justice. 14.However, the Respondent opposes the application on the grounds that the Applicant has failed to demonstrate substantial loss, has not furnished security, has not taken steps to prosecute the appeal and is merely seeking to delay her enjoyment of the fruits of a lawful judgment. 15.This Court must balance the Applicant's right of appeal under the Constitution with the Respondent's right to enjoy the fruits of her litigation judgment 16.The Court in Kenya Shell Limited v Benjamin Karuga Kibiru & another [1986] eKLR, inter alia:“As I said I accept the proposition that if it is shown that execution or enforcement would render a proposed appeal nugatory, then a stay can properly be given. Parallel with that is the equally important proposition that a litigant, if successful, should not be deprived of the fruits of a judgment in his favour without just cause.” 17.The explanation offered by the Applicant has not been controverted and it appears reasonable in the circumstances. There is no evidence demonstrating that the Applicant deliberately disregarded the Court's orders or acted in bad faith. 18.On the matter of security, Order 42 rule 6(2)(b) provides that an order for stay of execution may be made if 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. 19.The applicant prays to deposit the original logbook to his Motor Vehicle Reg. No. KBU 021Q Toyota corolla instead of paying the cash deposit of Ksh. 300,000 as ordered by the court. 20.The Respondent contends that if stay is to be granted, then the Applicant/Appellant ought to deposit the entire decretal sum together with costs in a joint interest-earning account. 21.In Arun C Sharma v Ashana Raikundalia t/a Rairundalia & Co. Advocates Justice Gikonyo the Court stated that:“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. And that is why any security given under Order 42 rule 6 of the Civil Procedure Rules acts as security for 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.” 22.The applicant has satisfied the requirements of order 42 rule 6(2)(b) where he presented the valuation report of the car stating that it is currently valued at a sum of Kshs. 460,000/=, he also avers that it is a radio sum of Ksh. 15,000/= and a windscreen sum of Ksh. 26,000/=. He further contends that it is sufficient to cover the security for the appeal. 23.In my view, the applicant has submitted adequate evidence that the respondent’s interests would be safeguarded, if the applicant submits the original logbook, which exceeds the amount ordered by the court to substitute the Kshs. 300,000 cash deposit. 24.Further, in Focin Motorcycle Co. Limited v Ann Wambui Wangui & another [2018] eKLR, where it was stated that:“Where the applicant proposes to provide security as the Applicant has done, it is a mark of good faith that the application for stay is not just meant to deny the respondent the fruits of judgment. My view is that it is sufficient for the applicant to state that he is ready to provide security or to propose the kind of security but it is the discretion of the Court to determine the security. The Applicant has offered to provide security and has therefore satisfied this ground for stay.” 25.On matters cost, section 27 of the Civil Procedure Rules that costs follow the event unless the court orders otherwise. In the present matter, it is the applicant who failed to comply with orders during the stipulated period. Hence this court deems it fair that each party bears their own cost. 26.Therefore, this court has an obligation under section 1A and 1B of the Civil Procedure Act, to exercise its discretion to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes and the duty to provide just determinations of proceedings consecutively. 27.In the circumstances, I am therefore satisfied that the Applicant has demonstrated sufficient cause for enlargement of time and has offered reasonable security capable of securing the due performance of the decree, which satisfy the requirements under Order 42 rule 6(2)(b). The Respondent's interests can adequately be protected through the deposit of the original logbook together with proof of ownership and a current valuation report. 28.This court is satisfied that the applicant is entitled to the orders sought. 29.Consequently, the motion dated 5th January, 2026 is allowed giving rise issuance of the following orders;i.Leave is granted to the applicant to deposit with the deputy registrar of the court the original logbook in respect of motor vehicle reg. KBU 021Q Toyota Corolla as security for the due performance of the decree instead of depositing cash of Ksh. 300,000/= within a period of 14 days.ii.Costs of the application to abide the outcome of the appeal.iii.In order to fast track the hearing and determination of the appeal, being an appeal arising from the Small Claims Court, this court directs that the Record of Appeal be filed within 21 days. The appeal to be mentioned on 16/7/2026 for directions. DATED, SIGNED AND DELIVERED AT NAKURU THIS 11TH DAY OF JUNE, 2026.……………………………J. K. SERGONJUDGEIn presence of:Jamleck/Rutoh - C/A.Miss Cherotich holding brief for Gai for the Appellant.Mr. Mogire for Respondent.