Rintuara v Muriithi (Miscellaneous Civil Application E091 of 2025) [2026] KEHC 7325 (KLR) (28 May 2026) (Ruling)

Rintuara v Muriithi (Miscellaneous Civil Application E091 of 2025) [2026] KEHC 7325 (KLR) (28 May 2026) (Ruling) Neutral citation: [2026] KEHC 7325 (KLR) Republic of Kenya In the High Court at Embu Miscellaneous Civil Application E091 of 2025 RM Mwongo, J May 28, 2026 Between Geoffrey Gitonga Rintuara Applicant and Pamela Mwendwa Muriithi Respondent Ruling The Application 1.By way of notice of motion dated 03rd October 2025, the applicant is seeking the following orders:1.Spent;2.That this Honourable Court be pleased to order a temporary stay of execution of the Judgment and Decree of C.K. Kisiangani, Principal Magistrate, delivered on 07th August 2025 in Runyenjes MCCC Number E014 of 2025 pending the inter parties hearing and determination of this application;3.That this Honourable Court be pleased to grant leave to the Applicants to file an Appeal against the Judgment and Decree of C.K. Kisiangani, Principal Magistrate, delivered on 07th August 2025 in Runyenjes MCCC Number E014 of 2025; and4.That this Honourable Court be pleased to order a temporary stay of execution of the Judgment and Decree of C.K. Kisiangani, Principal Magistrate, delivered on 07th August 2025 in Runyenjes MCCC Number E014 of 2025, pending the hearing and determination of the intended appeal. 2.The application is supported by grounds set out on its face and in the supporting affidavit accompanying it. 3.In Runyenjes MCCC Number E014 of 2025, judgment was entered against the respondent for the sum of Kshs.2,158,490/= plus costs and interests. The judgment was delivered on 07th August 2025 and appeal was allowed within 30 days of the judgment date. The applicant stated that there a 26-day delay period after the lapse of the allowed appeal period, which delay should not be treated as inordinate. The respondent has moved to execute for the decretal amount and the applicant is now apprehensive that if execution is levied, the subject matter of the appeal will be lost and he will suffer prejudice. The applicant stated that his appeal has high chances of success. He is ready to comply with whatever conditions the court will set including furnishing security for performance of the decree. Replying Affidavit 4.In her replying affidavit, the respondent stated that the deponent of the supporting affidavit accompanying the application is a stranger to the suit and he lacks locus standi. That this deponent has explained that the delay to file an appeal was caused by policies of his employer who is also not a party to the suit. She stated that the applicant was well aware of the findings of the trial court but neglected to appeal within time. 5.In her view, the intended appeal is weak with no chance of success. It is her averment that if the application is allowed, she will be greatly prejudiced. That if the decretal amount is paid to her, she is a person of means and she will be able to return the money should the intended appeal succeed. Nevertheless, she regarded the intended appeal as moot and offensive to the doctrine of ripeness. She prayed that the application be dismissed. Parties’ Submissions on the application 6.The application was canvassed by way of written submissions. 7.The applicant submitted that after judgment was entered against him by the trial court, his insurer took up the matter with the intention of challenging the judgment. However, the insurer’s internal policies caused the inordinate delay in filing the appeal. On this, he relied on the case of Stepal Builders Company Limited & another v Mwaniki alias Margret Mori Mwaniki alias Margeret Mori Mwaniki alias Margeret Mori Mwaniki alias Mori Mwai Mwaniki alias Margret Muri alias Mori Mwaniki [2024] KEHC 6022 (KLR). He urged the court to grant him leave to appeal through its discretion spelt under section 79G of the Civil Procedure Act. He relied on Order 42 Rule 6 of the Civil Procedure Rules and stated that he has already complied with the orders of the court setting conditions for granting stay of execution. Further reliance was placed on the case of National Industrial Credit Bank Ltd v Aquinas Francis Wasike & another [2006] KECA 333 (KLR). 8.In her submissions, the respondent relied on section 79G of the Civil Procedure Act and the cases of Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR) and Bi-Mach Engineers Limited v James Kahoro Mwangi [2011] KECA 242 (KLR). She stated that the applicant has not given the court sufficient reason to grant leave to appeal out of time. On stay of execution, she submitted that the applicant has not demonstrated actual substantial loss that he will suffer if the orders are denied. 9.Reliance was placed on Order 42 Rule 6 of the Civil Procedure Rules and the cases of National Industrial Credit Bank Ltd v Aquinas Francis Wasike & another (supra), Kenya Shell Limited v Benjamin Karuga Kibiru & another [1986] KECA 94 (KLR), Machira t/a Machira & Co Advocates v East African Standard [2002] KEHC 1167 (KLR) and Arun C Sharma v Ashana Raikundalia t/a A Raikundalia & Co Advocates & 2 others [2014] KEHC 2430 (KLR) Issue for determination 10.The issue for determination is whether the application has merit. Analysis and Determination 11.Through its orders issued on 06th October 2025, the applicant was granted stay of execution on conditions specified therein, including that the decretal amount be deposited in a joint interest earning account held by advocates for both parties within 30 days. The applicant filed a supplementary affidavit stating that he had complied with the conditions set by the court and that his insurer, Britam General Insurance had deposited the decretal amount into the joint account opened as ordered by the court. He also referred to the supporting affidavit to the application that is sworn by a legal officer of the applicant’s insurer. The parties also confirmed to the court that the conditions for stay had been fulfilled, hence the issue of stay of execution is settled. 12.The grounds for extension of time to appeal are set out in section 79G of the Civil Procedure Act as follows:“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.” [Emphasis added] 13.The impugned judgment was delivered on 07th August 2025. The application herein was filed on 03rd October 2025.This is less than thirty days’ delay which cannot be held as inordinate. The applicant has explained that the delay was caused by the insurer’s internal policies. The respondent rightly pointed out that the applicant’s insurer is not a party to the trial court proceedings but only to the proceedings herein. The applicant has looped his insurer into these proceedings at appeal stage and the insurer has agreed to settle the decretal amount. In fact, it has paid the said decretal money into the joint account as security. 14.The question remains whether the insurer can actively participate in the appeal as a party. In Kenya Orient Insurance Limited v Otieno [2024] KEHC 7637 (KLR) the court explained:“Upon entry of judgment in such accident claims where the Defendant was insured, the above provisions require the insurer to settle the decretal amount as awarded and in accordance with the provisions of the Act. It is however not always the case that the insurers willingly settle the claim and this necessitates the filing of a declaratory suit to compel the insurer to settle the decree. Ordinarily, such declaratory suits may be filed by the Defendant and/or Judgment Debtor in the primary suit. However, that can only happen if there is jurisdiction conferred on the court to hear such claims albeit they are claims arising from or as a consequence of a judgment and in effect, to give effect to a judgment or decree in those specific cases. What then is a declaratory suit? Relevant to this case, a declaratory suit is one that seeks to compel a judgement debtor’s insurer to settle the decree passed against the insured.” 15.On perusal of the court records herein, there is no indication on whether the respondent filed a declaratory suit against the applicant’s insurer following the judgment of the court. Any cause of action against the applicant’s insurer arises after judgment has been entered against the applicant in the substantive suit. Section 10(1) of the Insurance (Motor Vehicle Third Party Risks) Act gives guidance on this. (See also the case of Muchai v Xplico Insurance Co. Ltd [2023] KEHC 24164 (KLR). In this case, the applicant seems to be working amicably with his insurer. However, this insurer is not a party to the proceedings and it cannot participate in them unless it is formally enjoined. Conclusions and Disposition 16.Having found that the almost thirty 30-day delay is not inordinate, this Court is satisfied that the applicant may be granted leave to appeal out of time and not be shut out from the fount of justice. He shall file his appeal within 14 days of this ruling. 17.Be that as it may, the focus of the application herein is for extension of time to appeal out of time. No material has been availed, in terms of Section 79G to show that delay was caused by the court-certifying process. The only question remaining is whether the appellant has satisfied the court as to the reasons for delay in terms of the proviso to Section 79G, which it has. 18.Accordingly, prayer 2 is granted for stay. 19.Costs of the application shall be in the cause. 20.Orders accordingly. DELIVERED, DATED AND SIGNED AT EMBU HIGH COURT THIS 28TH DAY OF MAY, 2026. _________________ R. MWONGOJUDGEDelivered in the presence of:No Representation for Kalamu Ndolo for RespondentMwangi for ApplicantFrancis Munyao - Court Assistant