https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11520

## REPUBLIC OF KENYA **IN THE HIGH COURT OF KENYA AT NAIROBI MILIMANI LAW COURTS** **CIVIL APPEAL MISCELLENOUS APPLICATION NO. E166 OF 2025** FAITH WAIRIMU GITAU APPLICANT -VERSUS- MANTOZ ENTERPRISES LIMITED RESPONDENT (*Being an application for leave to file an appeal out of time against the ruling delivered by Honourable Christine Ogweno on 22nd May 2025 in CMCC/E7376/2020.*) ## RULING 1. Before the Court is an application dated 11th August 2025, by Faith Wairimu Gitau (the applicant), expressed to be brought pursuant to sections 1A, 1B, 3A and 63(e) and 79G of the Civil Procedure Act and Order 50 Rule 6, Order 42 Rule 6 and Order 51 of the Civil Procedure Rules. The applicant seeks for orders: 1. That this application be certified as extremely urgent and service thereof be dispensed with and the same be heard in the first instance. 2. That the court be please to grant leave to the applicant to file and serve an appeal out of time against the ruling and order delivered on 22nd May 2025 in CMCC/E7376/2020 by Honourable Christine A. Ogweno and the annexed memorandum of appeal be deemed as duly filed upon payment of the requisite fees. 3. That pending hearing and determination of this application, the court be pleased to issue a stay of execution of the judgement, decree issued on 7th September 2021 and all consequential orders emanating therefrom. 4. That the court do make an order setting aside the impugned ruling delivered by Honourable Christine A. Ogweno and it be substituted with an order directing that the main suit be heard and determined before a different magistrate of competent jurisdiction. 5. That the costs of the application be in the cause. 6. Any other order or relief that the court deems fit and just in the circumstances. Mantoz Enterprises Limited is the respondent herein. 1. The matter originates from a plaint dated 7th December 2020 by the respondent at the lower court seeking a sum of Kshs 1,491,000/- for goods delivered to the applicant but not paid for. The applicant failed to enter appearance so judgement in default was entered dated and decree issued on 7th September 2021. 2. On 19th December 2024, the applicant sought stay of execution and setting aside of the judgement. Conditional stay was granted *ex-pate* on condition that the applicant deposits the decretal sum plus costs and interest in a joint interest earning account in the name of the advocate on record. The applicant did not adhere to this and the application was heard and subsequently dismissed entirely on 22nd May 2025 by Honourable Christine A. Ogweno. Upon dismissal, the applicant filed two further applications, one dated 1st May 2025 in the lower court which was found to be res judicata, and the second dated 6th May 2025 before this court which was later withdrawn because it was overtaken by events. The applicant then filed the present application. 3. The application is opposed through a Replying Affidavit sworn by Samuel Mwangi Nduati on 9th October 2025. Both parties filed submissions. Highlighting of submission did not occur as both parties were not present in court on 14th July 2026. ## Applicant’s Submissions 1. In submissions dated 1st December 2025, the applicant submits that section 79G of the Civil Procedure Act allows enlargement of time post expiry where there is just and sufficient cause. Reliance is placed on *Simon v Oira (Civil Appeal 215 of 2024) [2025] KEHC 7211* to recognise that extension of time is not a right but an equitable remedy available to a deserving party who demonstrates good and sufficient cause. 2. The applicant submits that the delay in filing the present application was occasioned by instances of procedural impropriety in the proceedings at the lower court which explained the multiple applications before this court and the lower court after the ruling on 22nd May 2025. 3. The applicant contends that there are two defects in the lower court’s proceedings that ought to be remedied through the intended appeal. Firstly, that the summons to enter appearance predate the institution of the suit and secondly, that there was no formal proof hearing conducted prior to entry of monetary judgement. 4. With regards to the requirements for grant of stay of execution according to Order 42 Rule 6(2) of the Civil Procedure Rules, the applicant submits that the defects stated earlier offer sufficient cause. As for substantial loss, the applicant submits that attachment of one’s salary where a decree is challenged on potential procedural infirmities qualifies as proof of substantial loss. Thirdly, on the condition to furnish security, the applicant assures readiness to comply in good faith. The applicant cites *Butt v Rent Restriction (1982) KLR 417;* and *Vishram Ravji Halai v Thornton & Turpin (1963) Ltd (1982) KLR 365* to emphasise the discretionary power of the court to grant stay if these conditions are satisfied. 5. On the issue of whether there is an arguable appeal, the applicant relies on *Alfred Mincha Ndubi v Standard Limited [2020] KECA 795;* and *Gicharu v Waweru (Civil Appeal E1403 of 2024) [2025] KEHC 2565* to submit that an arguable appeal is not one that must necessarily succeed but simply raises an issue worth the court’s consideration. ## Respondent’s submissions 1. In opposing the application, the respondent in submissions dated 19th January 2026 acknowledges section 79G of the Civil Procedure Act and submits that the length of delay was a result of the applicant’s efforts to obtain favourable orders from a preferred court. 2. It is further submitted that there is no arguable appeal because the core grounds of appeal are based on a false account of events on what actually occurred at the lower court. For this reason, the respondent contends that they stand to continue being prejudiced should this matter press any further. 3. The respondent relies on *James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR*; and *Mbukoni Services Limited & Another v Mutinda Reuben Nzii & 2 others [2021] KEHC 4795 (KLR)* to submit that the applicant has failed to sufficiently demonstrate substantial loss that would make deductions of amounts to meet the decretal sum from their salary a burden. ## Determination 1. Having considered the application, replying affidavit, parties’ submissions, authorities cited, and the law, the issues for determination are as follows: 2. Whether leave to appeal out of time should be granted? 3. Whether a stay of execution pending appeal is merited? # Leave to file appeal out of time 1. Section 79G of the Civil Procedure Act governs the filing of appeals from the subordinate courts to the High Court. It provides that: ## “Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having **been requisite for the preparation and delivery to the appellant of a copy of the decree or order:** **Provided 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. In *Simon v Oira (Civil Appeal 215 of 2024) [2025] KEHC 7211* the court established that extension of time is not a right but an equitable remedy available to a deserving party who demonstrates good and sufficient cause. 2. The ruling the applicant seeks to appeal against was delivered on 22nd May 2025. The 30 day statutory limit which would have been 21st June 2025, was long overdue by approximately 51 days by the time this application was filed on 11th August 2025. 3. The explanation offered by the applicant for this delay stems from several applications pursued by the applicant before this court and the lower court to clarify alleged procedural defects in how the initial judgment in default was rendered. The respondent contends that this was deliberately done in an effort to forum shop for favourable orders. 4. In this instance, the court is inclined to agree with the applicant that the events leading to the trial court’s judgement in this matter ought to be clarified as procedural flaws are not trivial and can be fatal to the administration of justice. It would be a miscarriage of justice to deny the applicant an opportunity to have these fundamental issues addressed on appeal. I am satisfied that the applicant has provided just and sufficient cause to warrant the extension. 5. On whether the appeal is arguable, the respondent asserts in their submissions that the grounds of appeal are premised on a false narrative. That is a matter to be dissected on appeal and not in this application. The intended appeal is therefore arguable as it raises issues worth consideration. # Stay of execution 1. Order 42 Rule 6(2) reads: ## “No order for stay of execution shall be made under sub rule (1) unless— 1. **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** 2. **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.”** 3. The applicant argues that attachment of her salary would constitute substantial loss while the respondent contends that given the nature of employment of the applicant, she would not necessarily incur any burden should her salary be attached. 4. In as much as execution of a money decree does not amount to substantial loss, an exception must be made where the execution targets an individual’s source of livelihood to enforce a judgment contested on the basis of procedural irregularities. The threat to basic livelihood, irrespective of how high the applicant’s earnings may be, is satisfactory evidence of substantial loss. 5. Lastly, given that the applicant has expressed good faith in providing security, this court is free to exercise its discretion to grant stay. I note that the applicant has previously disobeyed a similar order by the lower court, therefore, the respondent ought to be shielded from further prejudice so as not to be denied fruits of the judgement indefinitely. ## ORDERS 1. Consequently, in the circumstances of this application, I make the following orders: 2. *The Notice of Motion dated 11th August 2025 is merited.* 3. *The applicant is granted leave to file and serve the memorandum and record of appeal within fourteen (14) days from the date of this ruling.* 4. *A stay of execution of the decree is granted pending determination of the appeal, on condition that the applicant deposits the full decretal sum of Kshs 1,491,000/- into a joint interest-earning account in the names of the advocates on record for both parties within thirty (30) days from the date of this ruling.* 5. *In default of compliance with the condition in order (iii) above, the stay of execution shall automatically lapse and the respondent shall be at liberty to proceed with execution of the decree.* 6. *Costs of the application to follow outcome of the appeal.* **DATED** and **DELIVERED** at **NAIROBI** this 23RD day of **JULY 202**6. ……………………….……………………………… ## E.K. OGOLA JUDGE In the presence of M/s Waweru holding brief for Maina for the Applicant. Mr. Onyango for the Respondent. Gisielle Muthoni, Court Assistant.