https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8954

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISII** **MISCELLANEOUS CIVIL APPLICATION NO. E091 OF 2026** **JOEL ATUTI GICHANA..........................................APPLICANT** **=VERSUS=** **SARAH MORAGWA…….....................................RESPONDENT** **RULING** 1. This is an Application for leave to appeal out of time; and for stay pending the filing of the intended appeal. The Application is dated 13th March 2026, and is supported by the Supporting Affidavit of JOEL ATUTI GICHANA the Applicant. It has stated that it has been brought under Sections 3 and 3A of the Civil Procedure Act (Cap 21 Laws of Kenya), as well as Order 22 Rule 22, Order 42 Rule 6, and Order 50 Rule 5 of the Civil Procedure Rules. 2. It has sought the following orders: 3. *(Spent).* 4. *Leave for the law firm of KRK Advocates LLP to come on record for the Applicant.* 5. *(Spent).* 6. *Leave to file an appeal out of time, against the judgment delivered by Hon C.A Ocharo (CM), in KISII CMCC NO. 227 OF 2020.* 7. *A stay of execution of the said judgment, pending the hearing and determination of the intended appeal.* 8. *An order for the Applicant to deposit as security for the stay of execution, in an interest-earning Bank Account in the joint names of the advocates, the entire decretal sum.* 9. *The costs of this Application.* 10. The Application is based on the grounds stated in it. Some of the grounds relate to the delay in filing the appeal and the prayer for leave to appeal out of time. Others relate to the prayer for a stay pending the filing of the intended appeal. *On Leave for the New Advocate to Come on Record* 1. This leave is required whenever a new advocate is coming on record after judgment has been entered in a suit and where the party was represented by another advocate. This leave is required by Order 9 Rule 9 of the Civil Procedure Rules. Which states as follows: “**When there is a change of Advocate, or when a party decides to act in person having previously engaged an Advocate, after judgment has been passed, such change or intention to act in person shall not be effected without an order of the Court.”** 1. The purpose of this leave, is to regulate legal representation in the same suit after judgment; and to protect advocates from being removed before issues such as costs are settled. 2. I hold that the leave is required only if the new advocate is coming on record in the same suit in which judgment was made. Not in an appeal to a higher court, as is the case in this Application; because appellate proceedings are separate proceedings. They are not a continuation of the trial proceedings, as those are in the suit in the trial court. It is only in the trial court that to come on record, the new advocate requires leave. The Court of Appeal was of similar view, in ***Bhimji Shangani Builders & Contractors v. City Council of Nairobi [2012] eKLR***. 3. Therefore, that leave is not required in these circumstances, as the new advocate is not coming on record in the proceedings in the trial court. *On Leave to Appeal Out of Time* 1. The court’s power to enlarge or extend time, is a discretionary one. Although discretionary, such discretion has to be exercised judiciously and in a manner that meets the ends of justice and the overriding objectives of the Civil Procedure Act. 2. Regarding the delay in this matter, the Applicant has explained that it occurred in inadvertent circumstances when the advocate who was handling the suit, whose judgment is the subject of the intended appeal, and who had attended the judgment, abruptly left employment without having informed him or the law firm, about the judgment. 3. The Applicant has stated in this Application, that, both the law firm and himself learnt of the judgment, only in March this year after receiving a Notice from the Respondent’s advocate. Hence that the failure to file the appeal within the prescribed period, was not deliberate. *On Stay Pending Appeal* 1. As regards the prayer for stay pending the filing of the intended appeal, counsel for the Applicant submitted that the Applicant has fulfilled the conditions prescribed by Order 42 Rule 6 of the Civil Procedure Rules- including an offer to deposit security for the due performance of the decree. 2. As regards security, the Applicant has in the Application offered to deposit the entire decretal sum, in an interest-earning bank account in the joint names of his advocate and the Respondent’s advocate. *The Respondent’s Response* 1. The Respondent has opposed the Application through her Replying Affidavit sworn on 21st April 2026. In which she has stated that the delay was inordinate. Interestingly, her counsel when arguing the Application, declined to address the issue of the meaning of inordinate delay, even when he was asked by the Court to do so. He took the position that the meaning of the phrase “inordinate delay” was so obvious that it did not require any elucidation. 2. This is a phrase that is often used, but whose meaning is generally misunderstood. The inordinateness is not in the length of the time lapse, but in the reason(s) and circumstances of the delay. For instance, what could be inordinate delay in peace time, will not be inordinate delay in war time. Besides, there are circumstances in which delay for a month may be considered inordinate, and others in which delay for several months may not be considered inordinate. 3. Inordinate delay is not necessarily delay that is prolonged. In my considered view, the phrase refers to delay that has not been sufficiently explained or justified; and which is therefore inexcusable. Inordinate delay is not necessarily unreasonable delay. Prolonged delay is definitely unreasonable; but for it to be described as inordinate delay, will depend of the specific circumstances of the delay. Depending on the reasons and circumstances of the delay, a court may excuse an unreasonable delay, but will not excuse an inordinate delay. 4. In this case for instance, this Application was filed many months after the time for appeal had lapsed. Which duration is indeed long. But the Applicant has explained that he learnt of the judgment months later. The Respondent has contended that since the judgment intended for appeal was delivered over one year ago, the delay is definitely inordinate. That is a generalization. It is not necessary so for every case. That, as already stated in this ruling, will vary from case to case, according to its circumstances and the reasons responsible for the delay. ***Determination*** 1. Upon considering the reasons given for the delay, as well as the circumstances, I find that there was delay, but which delay although long, was not inordinate in the circumstances. Because the Applicant has sufficiently explained the reasons for the delay, and exonerated himself. In other words, he has successfully acquitted himself of blame for the delay. 2. As to the prayer for stay pending appeal, there are three conditions for such stay. These are stated in Order 42 Rule 6 (2) of the Civil Procedure Rules as follows: 3. *The Applicant must demonstrate that he will suffer substantial loss, if the decree is executed;* 4. *The Application for the stay, ought to have been made without undue delay; and* 5. *The Applicant ought to have offered security for the due performance of the decree.* 6. Although the Applicant has argued that he has met these conditions, the time for filing an appeal has long lapsed. He is even seeking leave to appeal out of time, and has not yet obtained the leave. I therefore do not find it necessary to interrogate those conditions, as there is no appeal yet, and he is still seeking the leave to appeal. 7. An appeal to the High Court is instituted by the mere filing of a Memorandum of Appeal. Which is a one-off act, unlike in the Court of Appeal where the filing of the appeal is preceded by the lodging of a Notice of Appeal, and which Notice remains valid for 60 days. 8. Therefore, the prayer for stay pending appeal is declined for now. He shall be at liberty to seek the stay, after filing the appeal, should he deem it necessary. 9. In the end the Application is allowed, and in terms only of the prayer for leave to appeal out of time. Consequently, the Applicant is hereby granted leave to file an appeal out of time, against the judgment that was delivered in KISII CMCC NO. 227 OF 2020. 10. The appeal be filed within 7 days from the date of this ruling, failing which, leave shall automatically lapse. 11. As the Application has been partially successful and each party has succeeded in part, each party shall bear its own costs. **DATED and DELIVERED at KISII on this 24th day of June 2026.** **PROF (DR) NIXON SIFUNA** **JUDGE**