https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11315

M'Mutia v Mutunga (Suing as the Legal Administrator of the Estate of Renson Bundi Kubuithia – Deceased) (Miscellaneous Civil Application E159 of 2025) [2026] KEHC 11315 (KLR) (16 July 2026) (Ruling) Neutral citation: [2026] KEHC 11315 (KLR) Republic of Kenya In the High Court at Meru Miscellaneous Civil Application E159 of 2025 HM Nyaga, J July 16, 2026 Between Henry Mworia M'Mutia Applicant and Peter Kimathi Mutunga (Suing as the Legal Administrator of the Estate of Renson Bundi Kubuithia – Deceased) Respondent Ruling 1.Vide a Notice of Motion dated 6th November 2025 the Applicant seeks two principal prayers:(a)that he be granted leave to file an appeal out of time against the Judgment and Decree of Hon. Felix Kombo, Chief Magistrate, delivered on 11th September 2025 in Maua Law Courts MCCC No. E130 of 2021; and(b)that this Court reinstates the interim stay of execution originally issued on 10th November 2025, which subsequently lapsed following breach of its conditional terms. 2.The application is supported by the affidavit of Peter Ngola Makau, the Legal Officer of Britam General Insurance Company (Kenya) Limited, insurer of the Applicant's motor vehicle registration number KBV 438K (Isuzu Lorry). The Respondent, suing as the Legal Administrator of the Estate of the deceased Renson Bundi Kubuithia, opposes the application through a Replying Affidavit and Grounds of Opposition. 3.A precise review of the litigation timeline is necessary to properly evaluate the merits of this Application: 11th September 2025: the trial court delivers judgment, finding the Applicant 100% liable by consent of the parties, and awards the Respondent a total sum of Kshs. 2,260,647.20 under the Law Reform Act and special damages, plus costs and interest; a standard 30-day stay of execution is granted. 11th October 2025: the statutory 30-day window to file an appeal lapsed without a Memorandum of Appeal being filed. 6th November 2025: the Applicant filed a Certificate of Urgency and Notice of Motion seeking leave to appeal out of time. 10th November 2025: this Court granted a conditional stay of execution on terms that the Applicant pays half the awarded damages (Kshs. 1,130,322/-) directly to the Respondent within 30 days. The order contained a clause providing that default would cause the stay to lapse automatically without further reference to the Court. 11th November 2025: the Respondent's advocates are formally served with the order by email, and bank details are requested. 10th December 2025: the 30-day compliance window expired without the Applicant making the deposit, causing the stay order to lapse by operation of law. 24th December 2025: the Applicant's insurer made payment of the half-sum (Kshs. 1,130,322/-) after the stay had already lapsed. 19th January 2026: the Respondent's advocates issued an execution notice and extract a Warrant of Attachment of Movable Property totaling Kshs. 1,382,932.40, inclusive of the outstanding principal balance, accrued interest, and taxed costs, via M/S Bealine Auctioneers. 20th January 2026: the Applicant filed an Application seeking to revive the lapsed stay orders and secure leave to appeal. 4.After the application dated 20th January 2026 was filed the court directed that the initial application proceed to hearing. 5.It is urged on behalf of the Applicant that the delay in filing the appeal was neither deliberate nor contumacious, but was occasioned by internal approval processes and policies of the applicant’s insurer. The Applicant further points out that this Court had previously issued temporary interim directions on 10th November 2025, acknowledging that the intended appeal is limited to the quantum of damages. That it complied with the orders albeit out of time. The applicant also states that the appeal has great chances of success. 6.The application was opposed by the respondent. It is averred that the applicant is seeking a new stay in an appellate court after failing to meet the conditions of court's stay order, which had consequently lapsed and now the court is functus officio. That the orders for security have not been complied with, had consequently lapsed. That the applicant wants to hold every other party hostage of its internal processes which are not subject of the matter before court. That non-compliance with a conditional stay order typically leads to its automatic vacation, and resumption of execution proceedings. That the applicant seeking repeated stay orders after failing to meet prior conditions is an abuse of the court process, and should not be entertained by this court, as the same will set a bad precedent. That Courts generally aim to balance the appellant's right to appeal with the decree holder's right to the fruits of their judgment. 7.Parties filed their respective submissions which I will not rehash, but will refer to them where necessary. 8.Having considered the pleadings, annexures, and submissions of both learned counsel, this Court frames two core issues for determination:(a)whether the Applicant has established sufficient and excusable grounds to warrant the exercise of judicial discretion to grant leave to file an appeal out of time; and(b)whether the Applicant is entitled to reinstatement of a stay of execution having previously defaulted on a prior conditional order of this Court. 9.The timelines for filing an appeal from a subordinate court are set out under Section 79G of the Civil Procedure Act, which provides 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.” 10.This is complemented by Order 50 Rule 6 of the Civil Procedure Rules, which more generally empowers the court, on such terms as it thinks just, to enlarge time for the doing of any act or the taking of any proceeding, even where the application for enlargement is made after the original time has already expired. 11.The exercise of this discretion was elaborated upon in Mwangi v Kenya Airways Ltd [2003] eKLR, where the court 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 or not 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.” 12.The Applicant missed the statutory deadline of filing appeal by only 26 days, a comparatively modest delay. While the explanation given—internal approval processes within the Applicant's insurer—is not a particularly strong one, this Court is mindful that the Applicant's conduct, taken as a whole, demonstrates good faith rather than an intention to evade the judgment. The Applicant moved to court promptly upon realizing that the appeal window had lapsed, and did not simply ignore the decree. 13.The intended Memorandum of Appeal raises a triable issue as to whether the trial magistrate ought to have applied the 2018 or the 2022 minimum wage baseline in computing dependency, a question that goes to the correctness of a substantial portion of the award and is not frivolous. 14.In these circumstances, and bearing in mind that the discretion to extend time ought ordinarily to be exercised so as not to shut out an arguable appeal, this Court is satisfied that sufficient cause has been shown for leave to be granted. 15.Turning to the reinstatement of the stay of execution, this Court is guided by Order 42 Rule 6(2) of the Civil Procedure Rules, which requires that an applicant demonstrate substantial loss, absence of unreasonable delay, and the provision of security for the due performance of the decree. 16.It is correct, as the Respondent points out, that the conditional stay granted on 10th November 2025 lapsed when the Applicant failed to pay within the stipulated 30 days. However, this Court notes that the Applicant's insurer did not abandon the obligation altogether. Payment of the sum ordered, Kshs. 1,130,322/-, was in fact made on 24th December 2025, only two weeks outside the compliance window. This is not a case of an applicant who has paid nothing at all or who disputes the obligation to pay. It is a case of a delayed but genuine remittance. 17.This Court further notes that the Warrants of Attachment were issued after the applicant failed to pay the decretal sum on time. It has to bear the cost of execution including the auctioneer fees. 18.In conclusion, this Court is satisfied that the Applicant has shown sufficient cause to justify the grant of leave to appeal out of time, and has demonstrated the good faith and substantial compliance necessary to warrant reinstatement of the stay of execution. 19.This Court therefore makes the following orders:a.The Applicant is hereby granted leave appeal out of time.b.The Memorandum of Appeal to filed and served within fourteen (14) days from the date of this Ruling.c.The stay of execution originally issued on 10th November 2025 is hereby reinstated pending the hearing and determination of the intended appeal.d.In default of compliance with the condition set out in (b) above, the stay orders shall lapse automatically without further reference to this Court, and the Respondent shall be at liberty to proceed with execution for the outstanding balance on the decree.e.The applicant shall bear the auctioneers fees, if applicable, to be agreed upon or taxed.f.The costs of this application shall be borne by the applicant. DATED, SIGNED, AND DELIVERED AT MERU THIS 16TH DAY OF JULY 2026.H.M NYAGAJUDGE