https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9819

Imbuga v Busiega (Suing as legal representative of the Estate of Isaac Chevugbe) (Civil Miscellaneous Application E020 of 2026) [2026] KEHC 9819 (KLR) (7 July 2026) (Ruling) Neutral citation: [2026] KEHC 9819 (KLR) Republic of Kenya In the High Court at Vihiga Civil Miscellaneous Application E020 of 2026 RN Nyakundi, J July 7, 2026 Between James Lwangu Imbuga Appellant and Christopher Busiega (Suing As Legal Representative Of The Estate Of Isaac Chevugbe) Respondent Ruling Introduction 1.In his Notice of Motion application dated 8th May 2026 and filed on even date, brought under Order 22 Rule 22, Order 42 Rule 6 of the Civil Procedure Rules, 2010, Section 3A of the Civil Procedure Act CAP 21 (Laws of Kenya), Article 50 and 159(2) of the Constitution of Kenya, 2010, the Applicant herein sought for orders that this court be please to grant an order of stay of execution of the Judgment and/or decree of Kshs 2,543,433/= including costs and interest in Vihiga CMCC No E094 of 2023 pending hearing and determination of the appeal. 2.He also sought for leave to extend time for filing his appeal out of time from the aforesaid Judgment and/or decree delivered on 30th September 2025. 3.Barbara Ngome, his Advocate, swore an affidavit in support of the said application. She averred that Judgment in Vihiga CMCC No E094 of 2023 was delivered on 30th September 2025 in the sum of Kshs 2,543,433/= including costs and interest and that the stay of execution for thirty (30) days that was issued on that day lapsed on 30th October 2025. 4.She asserted that on the lapse of the stay orders, the Applicant was served with Proclamation Notices and Warrants dated 24th April 2026 and 23rd April 2026 respectively. She pointed out that upon notifying the Applicant of the contents of the Judgment, he was aggrieved and dissatisfied with the said decision, thereby instructed them to appeal against the court’s finding on quantum hence this appeal. 5.She contended that the delay in filing the appeal on time was occasioned by the internal processes of transmission of payments and communication by the instructing client. She argued that said delay was excusable and had been explained. She added that the substratum of the appeal shall be rendered nugatory if an order of stay of execution is not granted as the Respondent may ultimately proceed to execute, proclaim and thereby attach and sell the Applicant’s property in satisfaction of the decree. 6.She further asserted that the Respondent being a person of straw may not be in a position to make good any loss/damage incurred or suffered by the Applicant if the decree herein is enforced and the appeal ultimately succeeds. She added that the Applicant’s insurance to wit Directline Assurance Company Limited was willing and capable of depositing the decretal sum in a joint interest earning amount in the names of both counsel and that the grant of the orders herein would not occasion any prejudice to the Respondent whereas the Applicant stood to suffer great prejudice should it not be allowed to ventilate the appeal. 7.The application filed by the appellant was strongly opposed by the respondent who filed a replying affidavit in context and on oath averred as follows;a.That I am an adult a male of sound mind and disposition capable to swear this affidavitb.That I am the Respondent in this application hence competent to swear this affidavit and having read the Notice of Motion dated the 8th day of May 2026 and with such explanation from my advocate on record, I wish to reply as hereunder.c.That the application filed by the Applicant is frivolous, vexation That the application filed by the Applicant is frivolous, vexatious, scandalous, and an abuse of the court process meant to waste the court's precious time.d.That the application has been brought with the sole intention of denying me the enjoyment of the fruits of my lawfully obtained judgment having lost my son.e.That I am advised by my advocate on record, which advice I take to be correct, that there has been inordinately delay in presenting the application for filing an appeal out of time since judgment was delivered on the 30th September 2026 which translates to 8 months down the line.f.That the said application is brought in order to frustrate the already commenced execution since it defeats logic why the applicant did not appeal within time since they were participating actively in post judgment that is the taxation of plaintiffs’ bill of costs.g.That I am advised by my advocate on record, which advice I take to be correct, that if indeed the court is inclined to grant the Applicant leave to appeal out of time and stay of execution as prayed, the court should order the Applicant to deposit the decretal sum, in a joint earning interest account in the name of the advocates on record or in the alternative in court within 30days failure to which execution to proceed.h.That I am advised by my advocate on record which advice I take to be correct that that the applicant has not met the legal threshold for grant of stay of execution pending appeal and extension of time to file the appeal out of time, as no substantial loss has been demonstrated, in any case I am the one who stands to suffer substantial loss having lost my son.i.That I am advised by my advocate on record which advice I take to be correct that the applicant that the intended appeal has no merit.j.That further, the applicant has not demonstrated her ability to deposit any amount as security as she has merely stated her readiness and willingness to deposit security.k.That it would be in the interest of justice and in accordance with the law that the orders sought be denied.l.That, I pray that the application herein be dismissed with costsm.That I swear this application in opposition to the application dated the 8th day of May 2026n.That what is deponed to herein is true and correct to the best of my knowledge, information, and belief. 8.This evidential material forms the basis upon which this notice of motion shall be decided which was also accompanied with brief submissions from both learned counsels of the appellant and the respondent. On the part of the learned of counsel of the appellant, placing before court the fundamental conditions outlined in Order 42 Rule 6 of the Civil Procedure Rules contended that the principles which are well settled in the following cases points to one logical conclusion for exercise of discretion to be exercised in his favour for grant of stay of execution pending hearing and determination of the appeal. Thus, the cases being G.N Muema P/A (SIC) Mt View Maternity and Nursing home v Miriam Maalim Bishar & Another [2018] eKLR and Mwangi S Kimenyi vs Attorney General & Another (2014) Eklr. Whereas on the part of the respondent’s counsel, the application fails to meet the threshold set out in Order 42 Rule 6 of the Civil Procedure Rules and the same should be declined. It was further learned counsel’s submissions that pursuant to Section 79(G) of the Civil Procedure Act, there are no sufficient reasons given by the Applicant intended appellant for enlargement of time to file an appeal out of time. Legal Analysis And Determination 9.There are two issues for determination which have emerged from the factual matrix of the notice of motion. First, it is whether the applicant intended appellant has met the criteria to be granted leave to file an appeal out of time. Second, it is whether the intended appellant/applicant has qualified the evidence within the scope of Order 42 Rule 6 of the Civil Procedure Rules for grant of stay of execution of the impugned judgment of the court below. 10.In exercising its discretion to allow an application seeking extension to file an appeal out of time, a court has to be satisfied that the omission to file the same within time was excusable. In other words, there must be a plausible explanation for the delay in filing the appeal. In Kenya’s legal system, courts have power to extend time for filing an appeal which is a discretionary remedy and granted on equitable grounds. The applicant must satisfy the court that there is sufficient cause for the delay by offering a plausible, satisfactory and well explained reasons. This area of law is kind of settled as can be seen shortly from the following principles. The Supreme court in the case of Nicholas Kiptoo Arap Korir Salat vs Independent Electoral and Boundaries Commission & 7 others [2014] eKLR summed up the applicable consideration as follows;i.Extension of time was not a right of a party. It was an equitable remedy that was only available to a deserving party at the discretion of the court;ii.A party who seeks extension of time had the burden of laying a basis for it to the satisfaction of the court;iii.Whether the court ought to exercise the discretion to extend time, was a consideration to be made on a case to case basis;iv.Whether there was a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;v.Whether there will be any prejudice suffered by the respondents if the extension was granted;vi.Whether the application has been brought without undue delay; and;vii.Whether in certain cases, like election petitions, public interest should be a consideration for extending time.This borrowing a leaf from the provisions of Section 7 of the Appellate jurisdiction act which provides as follows that the High Court may extend the time for giving notice of intention to appeal from a judgment of the High Court or for making an application for leave to appeal or for a certificate that the case is fit for appeal notwithstanding that the time for giving such notice or making such appeal may have already expired. In the same line of jurisprudence the court in Niazons (k) limited v China Road and bridge corporations (Kenya) [2000] eKLR it was held as follows;As regards extension of time in which to le Notice of Appeal and lodge Record of Appeal under Rule 4 of the Rules of this Court, there are numerous decisions of this Court to the elect that this Court has unfettered discretion. It is upon the applicant to explain to the satisfaction of the court that this discretion ought to be exercised in its favour. Although this is unfettered discretion but like all judicial discretion, it must be exercised on reason not caprice, and the exercise of that discretion must not be arbitrary or oppressive.In Leo Sila Mutiso v Rose Hellen Wangari Mwangi Civil Application No. NAI 255 of 1997 (unreported) this Court in dealing with the issue of application for extension of time within which to le and serve Notice of Appeal and Record of Appeal stated inter alia: - “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 rest 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.” 11.From the above principles the courts generally demands sufficient cause strictly rejecting delayed filings caused by negligence, or lack of bona fides or bureaucratic lethargy. While on the other hand courts have the discretion to condone delay under Section 79(g) of the Civil Procedure Act if sufficient cause is shown but this power cannot be exercised as a matter of right. In so far as the intended applicant is concerned, he has pleaded in the body of the motion that the delay in filing the appeal on time was occasioned by internal processes of transmission of payment while instructing client to the judiciary account and for those reasons there is sufficient cause for equitable remedy on extension be granted in his favour. In Black’s Law Dictionary it defines expressions ‘extension’ as follows as a period of additional time to file an application as sought or some returns whose time has expired beyond its due date. A period of additional time to take an action, make a decision, accept an offer or complete a task. What the legislative scheme of the Civil Procedure Act and Rules provides broadly in the various sections is a plain reading of the statute would show that when any period of time is granted by the court for doing any act, the court has the discretion from time to time to indulge such period even if the time will be fixed or granted by the court has expired. It is evident from the language employed in the various provisions for example Section 79(g) of the Act and Order 50 & 51 of the rules that the power given to the court is discretionary and intended to be exercised only to meet the ends of justice. 12.In this context, as rightly pointed by the above principles I find merit in exercising discretion to grant leave to the applicant and intended appellant to file his appeal out of time and any such memorandum of appeal which had been filed be deemed as properly filed within time. 13.Turning to the order of stay of execution pending appeal, the present application was brought under Order 42 Rule 6 of the Civil Procedure Rules which empowers a court to stay execution of its own orders or an appeal court to stay orders of the decision which was intended to be appealed from. 14.Before an order for stay pending appeal under Order 42, Rule 6(2) of the Civil Procedure Rules can be granted, an applicant has to demonstrate the following: -1.That substantial loss may result unless the order is made.2.That the application has been made without unreasonable delay.3.Such security as the court orders for the due performance of the decree has been given by the applicant. 15.The three (3) conditions for the grant of an order for stay of execution must be met simultaneously as they are conjunctive and not disjunctive. 16.Notably, the decretal sum was colossal. The Respondent did not file an Affidavit of Means to demonstrate that he would be able to refund the Applicant any amount of the decretal sum if the same was released to him and the Applicant succeeded on appeal. 17.Even so, the Respondent may very well have been able to refund it if the Applicant was successful on appeal. However, the rigours of recovering the said amount could amount to substantial loss as was held in the case of Dr. G. N. Muema t/a Mt. View Maternity & Nursing Home vs Miriam Maalim Bishar & Another (2018) eKLR. It was for that reason that this court came to the conclusion that the Applicant had satisfied the first condition of being granted an order for stay of execution pending appeal. 18.As the court had found and held hereinabove that the present application was filed without undue delay, this court was persuaded to find that the Applicant had satisfied the second condition for being granted an order of stay of execution pending appeal. 19.The Applicant was ready and willing to furnish security. This court was satisfied that he demonstrated that he had met the third condition for the granting of an order of stay of execution pending appeal. Disposition 20.The upshot of this court’s decision was that the Applicant’s Notice of Motion application dated and filed on 8th May 2026 was merited and the same be and is hereby allowed in the following terms:-1.That the Applicant be and is hereby directed to file and serve his Memorandum of Appeal in the appropriate file within fourteen (14) days from the date of this Ruling.2.That the Applicant be and is hereby directed to file and serve his Record of Appeal in the appropriate file within thirty days (30) days from the date of this Ruling.3.That an order for stay of execution of the Judgment and Decree of Hon Beryl M. A. Omollo (SRM) that was delivered at Vihiga in MCCC/E094/2023 be and is hereby granted pending the hearing and determination of the appeal on condition the Applicant shall deposit the sum of Kshs 2,543,433/= into an interest earning account in the joint names of the advocates for the parties herein within thirty (30) days from the date of this Ruling.4.That in the alternative, the applicant/intended appellant be at liberty to file a bank guarantee from a reputable financial institution within the same period and that shall meet threshold of clause 3 above.5.Costs of the application herein shall be in the cause. 21.Orders accordingly. DATED AND DELIVERED AT VIHIGA VIA CTS, WHATSAPP AND EMAIL THIS 7TH DAY OF JULY 2026………………………………R. NYAKUNDIJUDGE