https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11274

**** **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MERU** **CIVIL MISCELLANEOUS APPLICATION NO. E158 OF 2025** *(Arising from Maua Chief Magistrate's Court Civil Suit No. E205 of 2021)* **HENRY MWORIA M'MUTIA** ………………….……………..……. **APPLICANT** **VERSUS** **ROSE KATHAO WAKARU (Suing as the Legal Administrator** **of the Estate of Muriungi Kenneth Kithinji – Deceased) …RESPONDENT** **RULING** 1. Via a Notice of Motion dated 6th November 2025, the Applicant sought two substantive orders, namely; 2. Leave to file an appeal out of time against the judgment and decree of the lower trial court, and 3. A stay of execution of the said decree pending the hearing and determination of the intended appeal. 4. This matter stems from Maua Chief Magistrate's Court Civil Suit No. E205 of 2021, which arose from a fatal road traffic accident involving an Isuzu lorry (Registration No. KBV 438K) and a motorcycle (Registration No. KMDJ 780J) that claimed the life of Muriungi Kenneth Kithinji. 5. In a judgment delivered on 11th September 2025, the Learned Chief Magistrate, Hon. Felix Kombo, found the Applicant's driver 100% liable for the accident. The trial court consequently awarded the 1st Respondent a total decretal sum of Kshs. 3,293,865.20. 6. The applicant did not file an appeal on time, hence this application. 7. It is averred 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. 8. The Applicant further points out that this Court had previously issued temporary interim directions on 10th November 2025 in a relate file, namely HCCCMISC/E159/2025, after acknowledging that the intended appeal is limited to the quantum of damages awarded. 9. The applicant states that the appeal has great chances of success, as exhibited through a draft Memorandum of Appeal which raises three grounds: the trial court's choice of the minimum wage as a multiplicand; its evaluation of the conflicting eyewitness accounts of PW2 and TW1; and failing to give due weight to the evidence of DW1 and the overall quantum of damages awarded. 10. The application was robustly opposed by the 1st Respondent, through a Replying Affidavit raising several objections. 11. First, regarding the competence of the Supporting Affidavit, the 1st Respondent maintains that it was sworn by Peter Ngola Makau, whom she labels as a “stranger” to the suit, and has no legal authority from the actual Applicant, Henry Mworia M'Mutia, has been annexed to validate his standing. 12. Second, regarding the timeline, the 1st Respondent notes that while judgment was delivered on 11th September 2025, the Applicant sat on his rights until 6th November 2025 when he made the present application. She asserts that this inordinate delay is unexplained and that the application was merely a reaction to a formal demand letter dated 5th November 2025 demanding a total taxed sum of Kshs. 3,502,468.20 inclusive of costs and accrued interest. 13. She further argues that the fruits of the judgment are earmarked for the maintenance of H.G.K. a minor orphaned by the accident, and that delaying execution is tantamount to holding the decree-holder hostage. 14. The 1st respondent further averred that should this Court be inclined to grant a stay, it should be on stringent terms, by directing the Applicant to pay Kshs. 1,646,932.00 (half of the decretal sum) directly to her, and depositing the remaining half into a joint, interest-earning escrow account in the names of both law firms. 15. Having carefully reviewed the pleadings, affidavits, and exhibits on record, this Court identifies two core issues for determination: 16. Whether the Applicant has established sufficient cause to be granted leave to file an appeal out of time, and 17. Whether the Applicant has satisfied the strict thresholds required for a stay of execution under Order 42, Rule 6 of the Civil Procedure Rules. 18. Section 79G of the Civil Procedure Act 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.”*** 1. The discretion to extend time to file an appeal is broad but must be exercised judiciously. This discretion was elaborated in **Mwangi v Kenya Airways Ltd [2003] eKLR**, as cited with approval in **Lucy Wangari Mwangi & 6 others v Jacinta Kamuyu Githungu & another [2021] KEHC 4840 (KLR),** 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.”*** 1. Applying these principles to the present case, I find that the delay of approximately 36 days is noticeable but not entirely inordinate. The reasons adduced, namely the internal approval processes by the applicant’s insurer, even though not very well explained, is plausible. 2. While the 1st Respondent correctly notes that the Applicant moved to court immediately after receiving the formal demand letter of 5th November 2025, this Court finds that the intended grounds of appeal, specifically regarding the calculation of the dependency ratio and the application of the Wage Order raise triable legal questions. It is in the interest of justice that the matter be conclusively settled on its merits at the appellate level. 3. Turning to the prayer for stay of execution, Order 42 Rule 6(2) of the Civil Procedure Rules provides that a stay cannot be granted unless the court is satisfied of the following: ***“(a) the court is satisfied that substantial loss may result to the applicant unless the order is made and the application has been made without unreasonable delay; and*** ***(b) 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.”*** 1. In **Butt v Rent Restriction Tribunal [1979] eKLR,** the court set out the considerations guiding an application of this nature. 2. In **Kenya Shell Limited v Benjamin Karuga Kibiru & Another [1986] eKLR,** the court held that the demonstration of substantial loss is the cornerstone upon which the discretion to grant a stay is founded, since an applicant must show that a successful appeal would otherwise be rendered nugatory. 3. Since the intended appeal primarily challenges the quantum of damages, the decree-holder must not be entirely denied the utility of her judgment, especially where the welfare of a minor is directly concerned. On the other hand, forcing the Applicant to pay out the entire Kshs. 3,293,865.20 plus costs immediately might render the appeal nugatory should it succeed, as recovery of the sum from the respondent can be challenging. 4. Therefore, a conditional stay strikes the ideal equitable balance. The 1st Respondent's prayer for security is reasonable. 5. The Applicant has already deposited half the decretal sum in court, as ordered by the court on 15th December 2025.The order herein, was meant to mirror the one made in HCC Misc. E159 of 2025, that is by payment of the same to the respondent, but that was not the case. 6. I am of the view that given the fact that the appeal is basically on quantum, it would not be fair to let the said sum lie idle in court, and yet there is a party in dire need of the same. 7. Having considered the application, the following orders shall issue: 8. **The Applicant is hereby granted leave to file an appeal out of time.** 9. **The applicant to file and serve the Memorandum of Appeal within fourteen (14) days from the date of this Ruling.** 10. **A Stay of Execution of the decree in Maua CMCC No. E205 of 2021 is hereby granted pending the filing, hearing and determination of the intended appeal.** 11. **In default of compliance with the filing of the appeal as set out in (b) above, the stay orders shall lapse automatically without further reference to the court.** 12. **Half of the sum deposited in court shall be released to the advocates for the respondents for onward transmission to them.** 13. **The applicant shall bear the auctioneer fees, if applicable, to be agreed upon or taxed.** 14. **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. NYAGA** **JUDGE**