https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9924

Musembi alias Domitila Ndinda Musembi v Salim alias Maliwaza Salim (Miscellaneous Civil Appeal E004 of 2026) [2026] KEHC 9924 (KLR) (25 June 2026) (Ruling) Neutral citation: [2026] KEHC 9924 (KLR) Republic of Kenya In the High Court at Garsen Miscellaneous Civil Appeal E004 of 2026 JN Njagi, J June 25, 2026 Between Domitila Musembi alias Domitila Ndinda Musembi Applicant and Maliwaza Gulu Salim alias Maliwaza Salim Respondent Ruling 1.The applicant herein has filed a Notice of Motion dated 12th January 2026 seeking for orders that:1.Spent2.Spent3.That this Honourable Court be pleased to enlarge the time within which the Applicant may lodge an appeal against the judgment delivered on 18th November, 2025 in Hola CMCC No. E147 of 2024.4.That this Honourable Court be pleased to order a stay of execution of the judgment issued on 18th November 2025, in Hola CMCC No. E147 of 2024 pending the hearing and determination of the intended appeal.5.That cost of this application be provided for. 2.The application is based on the grounds that the Applicant was aggrieved by the judgment of the trial court delivered on 18th November 2025. That the duration for lodging the appeal has lapsed. That the delay in lodging the intended appeal was occasioned by the fact that advocates for the Applicant received instructions to file the appeal after the statutory period of filing the appeal had lapsed. That the legal manager of the Applicant`s insurance needed time to peruse the judgment and prepare an internal opinion as a result of which there was lapse of time. That by the time this was done the advocates for the Applicant had taken a break for the festive season. Therefore, that the delay was not inordinate and was purely inadvertent and excusable. 3.The application was opposed by the respondent on the ground that the applicant has not offered satisfactory explanation for the delay. That instructions were awaited from the insurance company and that offices closed during festive season does not amount to sufficient cause in law. That the delay was inordinate and inexcusable. More so that the Applicant has failed to demonstrate what substantial loss they stand to suffer if stay of execution is not granted. 4.The application was canvassed by way of written submissions of the respective advocates for the parties. Counsel for the applicant submitted that the court has discretion under section 95 of the Civil Procedure Act to enlarge time to file an appeal out of time. That the factors to be considered in such an application include the period of the delay, reasons for the delay, arguability of the appeal and the prejudice which could be suffered by the respondent if the application is not granted, see Silas Kanyolu Mwathia v Joseph Kavive James (2021) eKLR and Edith Gichugu Koine v Stephen Njagi Thoithi (2014) eKLR. . That the delay in the matter was approximately one month which delay is not inordinate. Reliance was placed in the cases of Almas Hauliers Ltd v Abdulnasir Abukar Hassan (2017) eKLR where the court found four months delay not to be inordinate and Agip (Kenya) Limited v Highlands Tyres Ltd (2001) eKLR where eight months was found not to be inordinate. 5.It was submitted that the delay was impacted upon by the December holiday period. That no prejudice will be caused to the Respondent if the application is allowed. The Applicant urged the court to allow the application. 6.Counsel for the Respondent on the other hand submitted that period of delay is inexcusable and unexplained as the Applicant had amble time to act from 18th December 2025. That the reasons for the delay are unsatisfactory. That the Respondent will suffer prejudice if the application is allowed. 7.The Respondent submitted that the Applicant has not satisfied the conditions for stay of execution under Order 42 Rule 6 of the Civil Procedure Rules. That the applicant has not demonstrated substantial loss as he has not provided any tangible evidence of it. It was submitted that the applicant did not show that he acted without delay. That though the applicant has deposited the decretal sum in court, security alone does not demonstrate substantial loss, cure inordinate delay nor does it entitle the applicant to stay of execution. The respondent urged the court to dismiss the application. Analysis and determination 8.I have considered the application, the grounds in support thereof and the submissions by the respective counsels for the parties. 9.The first limb of the application is for leave to file an appeal out of time. The factors that the court has to consider in deciding on whether or not to grant an application to file an appeal out of time are as was laid out in the case of Leo Sila Mutiso vs. Rose Hellen Wangari Mwangi cited with approval by the Court of Appeal in Thuita Mwangi v Kenya Airways Ltd [2003] eKLR where it was held: -“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters which this court takes into account in deciding whether to grant an extension of time are: first, the length of the delay: secondly, the reason for the delay: thirdly (possibly) the chances of the appeal succeeding if the application is granted: and, fourthly, the degree of prejudice to the respondent if the application is granted. 10.See also Paul Musili Wambua v Attorney General & 2 others (2015) eKLR. 11.In respect to the period of delay in filing the appeal, the judgment of the subordinate court was delivered on 8th November 2025. The statutory period of 30 days granted for filing the appeal ended on 17th December 2025. The instant application was filed on or about 15/1/2026. Excluding the time in December/January when time does not run, the period of delay was less than a month. In my view such period of delay was not inordinate. 12.As for the reason for the delay, the explanation given by the Applicant is that the same was occasioned by the fact that the advocates for the applicant received instructions to file the appeal from the insurance company of the applicant late. I find the explanation to be reasonable and excusable. 13.On possible prejudice by the Respondent, I do not think that the Respondent will suffer any prejudice as the Applicant has deposited the decretal sum with the court. 14.In view of the foregoing, there is no good reason for this court to refuse the application for leave to file appeal out of time. 15.The second limb of the application is for stay of execution pending the hearing and determination of the intended appeal. An applicant for such an application is required to satisfy the conditions set out in Order 42 Rule 6(2) of the Civil Procedure Rules, 2010. These are that:1.The application was brought without unreasonable delay.2.The Applicant will suffer substantial loss unless the orders sought are granted.3.The Applicant has given security for due performance of the decree as may be binding on him. 16.The delay, as earlier stated, was less than a month which period does not amount to unreasonable delay. The application was thus filed without unreasonable delay. 17.The decree being executed against the Applicant in this matter is Ksh.300,000/=. There is no evidence that the Respondent is in a position to refund the money in the event that the appeal is successful. The Applicant may end up suffering substantial loss if the money is paid to the Respondent and she is unable to refund it if the appeal does not go in her favour. 18.The Applicant has deposited the decretal sum in court. This is sign of good faith that the appeal is not filed as a mere delay to the execution. 19.In view of the foregoing, I find the application herein to be merited. I accordingly make the following orders:1.Leave to file appeal out of time is granted.2.The same to be filed within 14 days from the date hereof.3.Stay of execution of the judgment in Hola SPMCCC No.E147 of 2024 is granted pending the hearing and determination of the intended appeal.4.The costs of the application to abide by the outcome of the intended appeal.5.The orders granted herein to apply in Garsen HC MISC. CA Nos. E001 of 2026, E002 of 2026 and E003 of 2026. DELIVERED, DATED AND SIGNED AT GARSEN THIS 25TH JUNE, 2026.J. N. NJAGIJUDGEIn the presence of:Boare for ApplicantMunyao for RespondentCourt Assistant - Rahma