George Kimani Thuku v Georgina Mbithe Mutinda & John Mwangi Maina (Suing as the administrators of the Estate of the late Kelvin Mutinda Mbithe) & Mwiki P.S.V. Sacco Society Limited

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **CIVIL APPELLATE DIVISION** ***(Coram: A. C. Mrima, J.)*** **MISC. CIVIL APPLICATION NO. E198 OF 2025** ***-between-*** **GEORGE KIMANI THUKU .................................................... APPLICANT** ***-versus-*** 1. **GEORGINA MBITHE MUTINDA & JOHN MWANGI MAINA** **(*Suing as the administrators of the Estate of the late*** ***KELVIN MUTINDA MBITHE)*** 1. **MWIKI P.S.V. SACCO SOCIETY LIMITED ................RESPONDENTS** **RULING** **Background:** 1. The dispute before this Court traces its origins to the trial Court in *Nairobi [Milimani] Chief Magistrates Civil Case No E7051 of 2020*, [hereinafter referred to as ‘***the suit’***], wherein an *ex-parte* judgment was entered on the 4th August 2023, and a corresponding decree issued on the 14th September 2023 against *Mwiki P.S.V Sacco Society Limited,* the 2nd Respondent herein. 2. *George Kimani Thuku*, the Applicant herein, was subsequently joined to the primary suit as the 2nd Defendant pursuant to a ruling delivered on the 21st June 2024. 3. Following his joinder, he filed an application dated 11th March 2025. He sought to set aside the interlocutory judgment to enable him to defend the suit on its merits. However, the application was dismissed by the trial Court on 1st August 2025, hence the instant application. 4. The application was heard by way of written submissions thereby resulting to this ruling. **The Application:** 1. The Applicant approached this Court *via* a Notice of Motion dated the 8th September 2025 and sought the following orders: - 2. *Spent.* 3. *Spent.* 4. *THAT the Applicant be granted leave to file an appeal against the Ruling of the Honourable Magistrate in Milimani CMCC E7051 OF 2020 delivered on 1st August 2025 in terms of the attached draft Memorandum of Appeal out of time.* 5. *THAT pending the hearing and determination of the intended appeal, there be stay of execution of the Decree given in Milimani CMCC E7051 OF 2020 on 4TH August 2023.* 6. *That costs of this application be in the cause.* 7. The application was supported by the affidavit of *George Kimani Thuku*, sworn on the 8th September 2025 and further affidavit deposed on 30th October 2025. It was his case that a minimal delay of approximately six days occurred in filing the appeal because the Applicant was awaiting typed proceedings, which had been requested on the 4th August 2025 to enable the issuance of substantial instructions. 8. Further, it was his case that he is the owner of the subject motor vehicle, registration KCG 512M, and that he stands to suffer irreparable loss as the 1st Respondent is likely to execute the judgment against his property despite him not having been heard on the merits. 9. He asserted that in the Ruling of 21st June 2024, his joinder to the suit as a 2nd Defendant was not for purposes of complying with the Orders of the Court already on record, but it was principally to accord him an opportunity to be heard. In the further affidavit, the Applicant clarified that his joinder as the 2nd Defendant was an independent order not pegged on the 2nd Respondent’s compliance. He claimed that the 1st Respondent had indeed previously attempted to execute against his motor vehicle through a Notification of Sale dated the 14th November 2023. *The Submissions* 1. In his written submissions dated 11th November 2025, the applicant argued that Section 79G of the Civil Procedure Act confers upon the court unfettered discretion to admit an appeal out of time provided there is good and sufficient cause. Relying on the Court of Appeal’s decision in *Paul Musili Wambua vs Attorney General & 2 Others* [2015] eKLR, it was submitted that the six-day delay was not inordinate and was well-explained by the delay in securing typed proceedings. 2. It was further submitted, with reference to case of *Stanley Kangethe Kinyanjui -vs- Tony Ketter & 5 Others* [2013] eKLR, that the intended appeal is arguable and not frivolous, as the trial court had misapprehended the facts by visiting the shortcomings of the 2nd Respondent upon the Applicant, thereby curtailing his right to be heard. Drawing from *Kiu & another -vs- Khaemba & 3 others* [2021] KECA 318 (KLR), the Applicant emphasized that substantive justice must take precedence over procedural technicalities. 3. Regarding the prayer for stay of execution, it was submitted that under Order 42 Rule 6 of the Civil Procedure Rules and the principles outlined in *Rose A Ochanda & another -vs- Richard Wafula Makokha t/a RM Wafula & Co Advocates* [2022] eKLR, a stay is necessary to preserve the subject matter and prevent the intended appeal from being rendered nugatory. **The 1st Respondent’s case:** 1. The 1st Respondent opposed the application through a Replying Affidavit sworn by *Patrick Waiganjo Wachira* on 21st October 2025. He deponed that the application is frivolous and an abuse of judicial time. It was his case that no judgment was entered against the Applicant and no execution had commenced against him, thus rendering the application lacking in substance. He asserted that the Applicant’s participation in the trial Court was strictly dependent on the 2nd Respondent complying with the conditions issued by the trial Court, a matter that is already the subject of an existing appeal in High Court Civil Appeal No. E289 of 2025. *The Submissions* 1. In the written submissions dated 2nd February 2026, the 1st Respondent argued that the application is entirely bereft of merit. It was submitted that it would be a waste of judicial time to entertain parallel appeals, and that the Applicant ought to await the determination of the existing twin appeal. 2. Relying heavily on the holding in *Kivanga Estates Limited -vs- National Bank of Kenya Limited* [2017] eKLR, it was submitted that the Court has a paramount duty to maintain the integrity of the administration of justice by stopping litigation brought for ulterior and extraneous purposes, such as delaying lawful execution. **Analysis and Determination:** 1. Having considered the pleadings, the affidavits on record, and the rival submissions, the following issues emerge for determination:- 1. *Whether the Applicant should be granted leave to file an appeal out of time.* 2. *Whether the execution of the interlocutory judgment and decree should be stayed pending the hearing and determination of the intended appeal.* 2. The Court will now consider the above issues. **[a] Whether the Applicant should be granted leave to file an appeal out of time:** 1. On the extension of time, Section 79G of the Civil Procedure Act allows an appeal to be admitted out of time in the following manner; ***79G. Time for filing appeals from subordinate courts*** *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***Nick* *Salat -vs- Independent Electoral and Boundaries Commission & 7 others***(Application 16 of 2014) [2014] KESC 12 (KLR) the Supreme Court discussed extension of time to appeal as follows; *… Extension of time being a creature of equity, one can only enjoy it if he acts equitably: he who seeks equity must do equity. Hence, one has to lay a basis that he was not at fault so as to let time to lapse. Extension of time is not a right of a litigant against a court, but a discretionary power of the courts which litigants have to lay a basis where they seek courts to grant it.* 1. Further, the Apex Court approvingly made reference to the Court of Appeal decision in ***Paul Wanjohi Mathenge -vs- Duncan Gichane Mathenge***[2013] eKLR where the authority in***Leo Sila Mutiso -vs- Rose Hellen Wangari Mwangi*** *-* Civil Application No. Nai. 255 of 1997 (unreported),observed thus: - *…. 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.* 1. Returning to the circumstances of the case, it is not in dispute that the impugned ruling was delivered on the 1st August 2025. The statutory thirty-day window lapsed on the 1st September 2025. The filing of the instant application on the 8th September 2025 resulted in a minimal delay of approximately six days. 2. The delay was occasioned by the Applicant’s wait for typed proceedings, which had been promptly requested on the 4th August 2025. In this Court’s view, the explanation proffered constitutes sufficient cause, and the brief delay does not prejudice the Respondents. 3. As regards the question whether the intended appeal raises triable issues, the question *inter alia* concerning the Applicant’s fundamental right to be heard before adverse actions are taken against his property takes precedence as a sound triable issue. **[b] Whether the execution of the interlocutory judgment and decree should be stayed pending the hearing and determination of the intended appeal:** 1. On the second issue concerning the stay of execution, Order 42 Rule 6 of the Civil Procedure Rules provides as follows **6. *Stay in case of appeal [Order 42, rule 6]*** 1. *…* 2. *No order for stay of execution shall be made under subrule (1) unless—* 3. *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* 4. *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.* 5. I will hence discuss the requirements in turn. 1. *Substantial loss:* 6. The primary purpose of a stay is to preserve the subject matter so that a successful appeal is not rendered nugatory. The Court of Appeal in *Mukuma -vs- Abuoga [1988] KLR 645* discussed substantial loss as follows*:* *…. The discretion of the Court of Appeal under Rule 5 (2) (b) of the Court of Appeal Rules is at large but the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render it nugatory….* 1. In ***Kenya Shell Limited -vs- Kibiru & Another***[1986] KLR 410, where the Court of Appeal discussed substantial loss as follows; *…. Substantial loss, in its various forms, is the cornerstone of both jurisdictions for granting a stay. That is what has to be prevented... It is not enough for the applicant to say that his appeal will be rendered nugatory if he is not granted a stay. He must show what substantial loss he will suffer.* 1. Having perused the Applicant’s annexures to the further affidavit, there is indeed a Notification of Sale targeting motor vehicle KCG 512M, which the Applicant owns. Allowing execution to proceed against the Applicant’s property before a determination as to whether the Applicant ought to be heard has been made, no doubt, would occasion substantial loss and irreparably frustrate the intended appellate process. 2. Conversely, the 1st Respondent’s assertion that the application is merely an abuse of process is, to say the least, unpersuasive given that the Applicant contends that he was joined later after earlier possesses had already taken place and posits that he ought to be heard before execution is undertaken. To this Court, the Applicant has demonstrated substantial loss if the stay order is not granted. 1. *Security* 3. The Applicant deponed that he is able, ready, and willing to comply with any orders this Court shall make with regards to the prayers sought. Whereas the Applicant did not expressly propose a specific quantum or form of security in his pleadings, this Court must balance the competing interests, namely, preserve the Applicant's right of appeal while ensuring the 1st Respondent is not left holding a hollow decree. Therefore, the grant of stay must be conditional. 4. Since the Applicant joined the suit long after judgment had been entered against the 2nd Respondent and that the Applicant is still pursuing to be heard before the trial Court, it is only fair to consider a condition that will not curtail the Applicant further pursuit of his case. To that end, a bank guarantee would suffice. **Disposition** 1. Flowing from the foregoing analysis, it is the conclusion of this Court that the Applicant has satisfied the requisite legal thresholds for the grant of the orders sought. The application dated 8th September 2025 is hereby allowed in the following terms: **[a] Leave is hereby granted to the Applicant to file and serve the Memorandum of Appeal out of time. The same shall be filed in a substantive appeal file and be served within fourteen (14) days from the date of this Ruling.** **[b] There shall be a stay of execution of the judgment and decree issued in Nairobi [Milimani] CMCC E7051 of 2020 pending the hearing and determination of the intended appeal.** **[c] The stay granted in (b) above is conditional upon the Applicant providing and filing a bank guarantee from a reputable financial institution for the sum of Kshs. 300,000/- within thirty (30) days of this order. The Guarantee form shall be filed in the substantive appeal file.** **[d] In default of compliance with either orders (a) and/or (c) above, the stay of execution shall automatically lapse, the Notice of Motion dated 8th September 2025 shall stand dismissed with costs and execution of the decree shall, without more, issue.** **[e] In the meantime, the costs of this application shall abide the outcome of the intended appeal.** **[f] This file is hereby marked as CLOSED.** Orders accordingly. **DELIVERED**, **DATED** and **SIGNED** at **NAIROBI** this **9th** day of **September, 2026.** **A. C. MRIMA** **JUDGE** **Ruling virtually delivered in the presence of:** **Ms Karue** holding brief for Mr. Chimei**,** LearnedCounsel for the 2nd Respondent. **Mr. Kiptanui** holding brief for Mr. Wachira**,** Learned Counsel for the 1st Respondent. **Ms Soi,** Learned counsel for the Applicant**.** **Michael/Amina** –Court Assistants.