https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9979

Homa Bay Water & Sewerage Company v Marvel Communications Ltd (Miscellaneous Civil Application E153 of 2025) [2026] KEHC 9979 (KLR) (Civ) (9 July 2026) (Ruling) Neutral citation: [2026] KEHC 9979 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Miscellaneous Civil Application E153 of 2025 AC Mrima, J July 9, 2026 Between Homa Bay Water & Sewerage Company Applicant and Marvel Communications Ltd Respondent Ruling 1.Through an application by way of Notice of Motion dated 29th July 2025 the Appellant/Applicant sought the following orders: -1.That this application may be certified as urgent and heard ex-parte in the first instance.2.That pending hearing and determination of this application, the Honourable Court be pleased to stay execution of the decree passed on 11th October 2024, by Honourable Kiongo Kagenyo (RM) in Milimani SCCOM No. E4099 of 2023 Marvel Communication Vs Homabay County Water And Sanitation Company and set aside the Ruling issued on 7th May 2025 in the said matter denying the Applicant stay of execution of the Decree.3.That pending hearing and determination of this Application, the Honourable Court set aside the Warrant of attachment and Proclamation Notice dated 23rd July 2025.4.That this Honourable Court be pleased to grant leave to the Applicant to file Memorandum of appeal out of time.5.That the costs of the application be provided for. 2.The application was supported by the grounds on the face of it and the supporting affidavit of one Tom Nyonje, Applicant’s the Managing Director, sworn on 29th July 2025. The Applicant averred that its failure to file an appeal against the ruling delivered on 7th May 2025 was occasioned by some intervening proceedings before the trial Court and on account of some events that led to the Applicant arrive at a decision to take over the matter from its Advocates. 3.The Applicant, therefore, sought for extension of time to allow it file an appeal out of time alongside a stay of execution of the judgment in Nairobi [Milimani] SCCOM NO. E4099 of 2023. Written submissions were also filed in support of the application. 4.The application was strenuously opposed by the Respondent through her Replying Affidavit sworn on 25th September 2025 as well as written submissions and a List of Authorities. The Respondent posited that the Applicant has all along demonstrated indolence over this matter and that, even now, it has not put forth any meaningful grounds at all in support of the application. 5.Having considered the application, the response thereto, the written submissions and the decisions thereto, the issues that fall for this Court’s determination are: -i.Whether the Applicant has met the threshold for extension of time to appeal out of time; andii.Whether the Applicant has met the threshold for grant of stay of execution. 6.The above issues will be considered in seriatim. 7.On whether the Applicant has met the threshold for extension of time to file an appeal out of time, the starting point is Section 38 of the Small Claims Court Act and Rule 30 of the Small Claims Court Rules. Cumulatively, these provisions accord a person aggrieved by the judgment or order of the Small Claims Court to appeal to the High Court in accordance with Order 42 of the Civil Procedure Rules. 8.Section 79G of the Civil Procedure Act provides for the timelines within which appeals may be preferred from subordinate Courts to the High Court as follows: -79G.Time for filing appeals from subordinate courtsEvery 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. 9.The Supreme Court of Kenya in Nicholas Kiptoo Korir arap Salat vs IEBC & 7 Others (2014) eKLR, enunciated the principles applicable in an application for leave to appeal out of time. The Court stated inter alia that: -The underlying principles a Court should consider in exercise of such discretion should include: -a.Extension of time is not a right of any party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court;b.A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the Court;c.Whether the Court should exercise the discretion to extend time, is a consideration to be made on a case by case basis;d.Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;e.Whether there will be any prejudice suffered by the Respondent if the extension is granted;f.Whether the application has been brought without undue delay. 10.Additionally, the Court of Appeal in Paul Musili Wambua vs Attorney General & Others (2015) eKLR held as follows in considering an application for extension of time and leave to file a Notice of Appeal out of time: -…. it is now settled by a long line of authorities by this Court that the decision of whether or not to extend the time for filing an appeal the Judge exercises unfettered discretion. However, in the exercise of such discretion, the Court must act upon reason(s) not based on whim or caprice. In general, the matters which a Court takes into account in deciding whether or not to grant an extension of time are; the length of delay, the reason for the delay, the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the application is granted. 11.Returning to the matter, the impugned ruling was rendered on 7th May 2025 and the instant application filed on 1st August 2025. Therefore, since the Applicant had up to 6th June 2025 to lodge the appeal as of right, it substantively took the Applicant a further period of about 55 days to move to this Court. The Applicant’s reason for the delay is that there were some intervening proceedings before the trial Court and on account of some events that led to the Applicant arrive at a decision to take over the matter from its Advocates. 12.As the Applicant is a public entity and it had instructed Counsel to appear in the suit on its behalf. Since it appears there must have been a breakdown of their relationship leading to the takeover of the case by the Applicant, then the period in issue cannot be deemed as inordinate. Such is justifiable in the circumstances of this case. 13.The second issue is whether the Applicant has met the threshold for grant of stay of execution. The prerequisite conditions warranting a grant of stay of execution are outlined under Order 42 Rule 6 of the Civil Procedure Rules 2010 and may be summarized as follows: -a.That substantial loss may result to the Applicant unless the order is made;b.That the application has been made without unreasonable delay; andc.That security as the Court orders for the due performance. 14.Given that the aspect of delay has already been settled under the plea for extension of time, a look at the rest of the considerations now follows. On substantial loss, this Court notes that the execution process is in situ and some property has already been proclaimed. Execution is a lawful Court process and ought to be interfered with only in the clearest of cases. In this case, the Applicant decries its relationship with Counsel that resulted to the need to take over the conduct of the suit. Whereas those issues may fall within the realm of the main appeal in challenging the impugned ruling, suffice to say that public resources are likely to be paid out to a company which state of affairs may lead to more costs in recovery thereof just in the event the Applicant is successful in its pursuit to dismiss the suit. In such a special scenario, the likelihood of substantial loss is real. 15.On security, the Applicant is prepared to abide by any terms as this Court will impose. As such, this Court will impose conditions with a view to balance the parties’ interests. 16.Flowing from the above, the following final orders hereby issue: -(a)The Applicant is hereby granted leave to lodge an appeal against the ruling in Nairobi [Milimani] SCCOM NO. E4099 of 2023 delivered on 7th May 2025. The Applicant shall file and serve a Memorandum of Appeal in a substantive appeal file within 14 days of this order.(b)There shall be a stay of execution of the judgment and decree in Nairobi [Milimani] SCCOM NO. E4099 of 2023 pending the determination of the intended appeal on condition that the Applicant shall obtain and file in the appeal, an irrevocable Bank Guarantee from a reputable Bank in the sum of Kshs. 800,000/= [Read: Kenya Shillings Eight Hundred Thousand Only], within 30 days of this Order.(c)In the event of default in [a] and/or [b] above, the leave and stay orders issued shall stand discharged and/or set-aside and the Notice of Motion dated 29th July 2025 shall stand dismissed with costs assessed at Kshs. 30,000/= and the Respondent will be at liberty to levy execution.(d)In the meantime, the costs of this application shall be in the appeal.(e)This matter is hereby marked as closed.Orders accordingly. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 9TH DAY OF JULY, 2026.A. C. MRIMAJUDGERuling virtually delivered in the presence of:Mr. Ouma, Learned Counsel for the Applicant.Amina – Court Assistant.