John Muthoga Gaithuma v George Simon Gikonyo

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **CIVIL APPELLATE DIVISION** *(****Coram: A. C. Mrima, J.)*** **MISCELLANEOUS CIVIL APPLICATION NO. E173 OF 2025** ***-between-*** **JOHN MUTHOGA GAITHUMA.............................APPELLANT/APPLICANT** ***-versus-*** **GEORGE SIMON GIKONYO.................................................RESPONDENT** **RULING** **Background:** 1. The dispute before this Court relates to a landlord-tenant relationship concerning premises known as Plot Number NB2-126 located at Kayole Estate. *John Muthoga Gaithuma,* the Applicant herein, instituted *Nairobi [Milimani]* *Chief Magistrates Court Civil Case No. 287 of 2023*, [hereinafter referred to as ***‘the suit’***] seeking damages for illegal eviction and the unlawful distress of his butchery goods by *George Simon Gikonyo*, the Respondent herein. 2. The trial Court entered an *ex-parte* interlocutory judgment against the Respondent. Following formal proof, a final judgment was rendered on 30th August 2024, the Applicant was awarded Kshs. 1.9 million in general damages and Kshs. 215,500/= in special damages. Subsequently, the Respondent applied to set aside the judgment. 3. In a ruling delivered on 11th July 2025, the trial Court set aside the judgment and allowed the Respondent to defend the suit on its merits. Aggrieved by the ruling, the Applicant lodged the present two interlocutory applications before this Court which were disposed together and by way of written submissions, hence, this consolidated ruling. 4. A look at the applications follows. **The Notice of Motion dated 15th August 2025:** 1. Through this application, the Applicant sought the following orders: - 2. *Spent.* 3. *The Honourable Court be pleased to grant the applicant leave to appeal out of time against the ruling of the Hon. Felix Makoyo, PM dated 11th July 2025 in The Magistrate Court at Milimani Civil Suit No. 287 of 2023; John Muthoga Gaithuma vs. George Simon Gikonyo).* 4. *The costs of this application be provided for.* 5. The application was supported by an affidavit sworn by the Applicant, on 15th August 2025. The Applicant deposed that the 30-day statutory window to lodge an appeal had lapsed. He averred that the intended appeal raised arguable grounds, key among them being that the trial Magistrate had appreciated the regular nature of the default judgment yet proceeded to set it aside without imposing standard conditions, such as the payment of throw-away costs or auctioneer’s charges. 6. The Applicant did not file written submissions to further advance his quest for leave to appeal out of time. **The Response** 1. *George Simon Gikonyo* opposed the application for leave to extend time through a Replying Affidavit sworn on 27th October 2025. He deposed that the application was an afterthought and a blatant abuse of the judicial process. He averred that the intended appeal lacked merit and raised no triable issues. 2. Further, it was his case that the Applicant had failed to provide any explanation for the delay, which he described as inordinate and inexcusable. *The Submissions* 1. In his written submissions dated 28th November 2025, the Respondent argued that the Applicant failed to satisfy the legal threshold for enlargement of time under Section 79G of the Civil Procedure Act. Relying on the decision in *First American Bank of Kenya Ltd -vs- Gulab P Shah & 2 Others,* Nairobi (Milimani) HCCC No. 2255 of 2000 [2002] 1 EA 65, it was his case that the Court must consider the length of the delay, the explanation for the delay, the merits of the contemplated appeal, and the potential prejudice to the respondent. 2. Calling to his aid the Supreme Court decision in *Nicholas Kiptoo Arap Korir Salat -vs- Independent Electoral & Boundaries Commission & 7 Others [*2014] eKLR, the Respondent emphasized that the extension of time is an equitable remedy available only when a satisfactory explanation is provided. He submitted that the Applicant offered no explanation for the default. 3. Regarding the merits of the impugned Ruling, it was argued that the Magistrate exercised his discretion lawfully under Order 10 Rule 11 of the Civil Procedure Rules, guided by the overriding objective of Civil Procedure. **The Notice of Motion dated 28th July 2025:** 1. This application sought the following orders: - 2. *Spent.* 3. *Spent.* 4. *The Honourable Court be pleased to stay of execution of the ruling dated 11th July 2025 in Milimani MCCC/287 of 2023 John Muthoga Gaithuma vs. George Simon Gikonyo pending hearing and determination of the appeal filed herein.* 5. *The Honourable court be pleased to order stay of further proceedings in Milimani MCCC/287 of 2023 John Muthoga Gaithuma vs. George Simon Gikonyo pending hearing and determination of the instant application and appeal filed herein.” “5. The costs of this application abide the outcome of the appeal.* 6. In the Supporting Affidavit sworn on 28th July 2025, the Applicant deposed that the intended appeal was highly arguable as the trial Court failed to peg the setting aside of the judgment to any conditions. He averred that a failure to stay the execution and the trial Court proceedings would render the substance of the appeal nugatory. *The Submissions* 1. In his submissions dated 27th August 2025, the Applicant argued that the conditions for the grant of stay under Order 42 Rule 6 of the Civil Procedure Rules had been met. He referred the Court to the decision in *Vishram Ravji Halai -vs- Thornton & Turpin*, Civil Application No. Nairobi 15 of 1990 [1990] KLR 365, where it was observed that the Court’s jurisdiction is fettered by the requirements to establish sufficient cause, satisfy substantial loss, and furnish security. 2. The Applicant maintained that sufficient cause existed because the trial Magistrate irregularly set aside a proper judgment without imposing throw-away costs. Relying on *James Wangalwa & Another vs. Agnes Naliaka Cheseto* [2012] eKLR, the Applicant submitted that substantial loss would be occasioned if the stay was denied, as it would deprive him of the fruits of his properly obtained judgment and render the appeal an academic exercise. **The Response** 1. The Respondent opposed the stay application through a Replying Affidavit sworn on 18th October 2025. He deposed that the application was an abuse of the judicial process, lacking substance and devoid of triable issues. 2. He averred that the Applicant had failed to demonstrate the substantial loss that would be incurred if the stay was not granted, thus failing the threshold of Order 42 Rule 6(2) of the Civil Procedure Rules. *The Submissions* 1. In written submissions dated 20th November 2025, the Respondent argued that the Applicant failed to satisfy the cumulative requirements of Order 42 Rule 6(2) of the Civil Procedure Rules. To that end, he drew support on the conditions for stay from the decision in *Antoine Ndiaye -vs- African Virtual University* [2015] eKLR and *Halai v Thornton & Turpin (1963) Ltd* [1990] KLR 365. 2. The Respondent submitted that the Applicant’s assertion of substantial loss was misplaced because the intended appeal lacked merit. Crucially, the Respondent pointed out that the Applicant had totally failed to offer, propose, or deposit any security for the due performance of the decree as mandatorily required, thereby rendering the application incompetent. **Analysis and Determination:** 1. Having carefully considered the pleadings, the affidavits on record, and the submissions, the issues falling for determination are twofold: - 1. *Whether the Applicant has demonstrated sufficient cause to warrant the enlargement of time to lodge the appeal.* 2. *Whether the Application meets the legal threshold for stay of execution.* 2. Since an application for a stay of execution is an equitable relief that is anchored on the existence of a competent appeal or an intended appeal, the application for extension of time must first be determined in order to breathe life into the intended appeal and create the necessary legal substratum upon which the stay of execution can rest. The Court will, hence, deal with the first issue. *[a] Whether the Applicant has demonstrated sufficient cause to warrant the enlargement of time to lodge the appeal:* 1. Section 79G of the Civil Procedure Act prescribes a strict 30-day window within which an appeal from a subordinate court must be lodged. It provides; ***79G.Time for filing appeals from subordinate courts*** *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 impugned ruling was delivered on 11th July 2025. The Notice of Motion seeking leave was filed on 15th August 2025. The thirty days prescribed by section 79G of the Civil Procedure Act within which the Applicant had to lodge his appeal lapsed on 12th August 2025. The delay, therefore, indicates a default of approximately three days. 2. As articulated by the Supreme Court in ***Nicholas Kiptoo Arap Korir Salat v Independent Electoral & Boundaries Commission & 7 Others*** [2014] KESC 12 (KLR), the extension of time is not a right but an equitable remedy, and the Applicant bears the burden of providing a full, honest, and acceptable explanation for the delay. The Apex Court observed thus: - *…. Extension of time being a creature of equity, one can only enjoy it if he acts equitably: he who seeks equity must do equity. Hence, one has to lay a basis that he was not at fault so as to let time to lapse. Extension of time is not a right of a litigant against a court, but a discretionary power of the courts which litigants have to lay a basis where they seek courts to grant it.* 1. The Respondent correctly pointed out a glaring deficiency in the Applicant’s case. No reason was advanced for the delay. Ordinarily, such failure to explain the default is fatal. However, the discretion to extend time requires weighing multiple factors, including the length of the delay, the merits of the intended appeal, and the potential prejudice to the respondent. 2. In this case, the delay is minimal, a mere three days. Furthermore, the intended appeal raises a substantive, arguable question of law, namely, whether a trial Court, when exercising its discretion under Order 10 Rule 11 of the Civil Procedure Rules to set aside a regular default judgment, erred by failing to impose the primary conditions. 3. More importantly, the Respondent has not demonstrated any irreparable prejudice that would occur if the appeal is admitted late. His core desire is to have the suit heard on its merits; a right that remains intact. Guided by the constitutional imperative under Article 159(2)(d) to administer justice without undue regard to procedural technicalities, this Court finds and hold that the balance of justice tilts in favour of excusing the Applicant’s, *albeit* unexplained, delay. The application for leave to appeal out of time is, therefore, merited. *[b] Whether the application meets the legal threshold for stay of execution:* 1. The power to grant a stay of execution is fettered by the conjunctive conditions set out in Order 42 Rule 6(2) of the Civil Procedure Rules being that the Court be satisfied that substantial loss may result to the applicant unless the order is mad; that the application has been made without unreasonable delay; and 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. 2. In Civil Application Nai 6 of 1979,***Butt -vs- Rent Restriction Tribunal*** *[*1979] eKLR,the Court of Appeal discussed Order 42 Rule 6 of the Civil Procedure Rules as follows; 1. *The power of the court to grant or refuse an application for a stay of execution is discretionary; and the discretion should be exercised in such a way as not to prevent an appeal.* 2. *Secondly, the general principle in granting or refusing a stay is, if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should the appeal court reverse the judge’s discretion.* 3. *Thirdly, a judge should not refuse a stay if there are good grounds for granting it merely because, in his opinion, a better remedy may become available to the applicant at the end of the proceedings.* 4. *Finally, the Court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances and its unique requirements. The court in exercising its powers under Order XLI Rule 4(2) (b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security of costs as ordered will cause the order for stay of execution to lapse.* 3. This Court will consider the requirements in turn. * 1. *Substantial loss* 4. On the first limb, the Applicant contended that substantial loss will occur because the setting aside of the judgment would deprive him of the fruits of his judgment. The judgment in question was an *ex-parte* default judgment that the trial Court set aside, effectively returning the parties to the trial arena to contest the matter on its merits. The *“loss”* the Applicant faces is merely the delay in realizing his claim while the trial proceeds, not an irreversible loss of the subject matter. Courts consistently favour the resolution of disputes on their merits rather than through default judgments. Therefore, being compelled to prove one’s case at a full trial does not constitute substantial loss within the contemplation of Order 42 Rule 6. 5. For completeness, an order setting aside a judgment is a negative order. It discharges a decree and does not command either party to perform a positive act capable of execution. Therefore, a stay of execution of such an order is a legal impossibility. 6. In ***Registered Trustees, Kenya Railways Staff Retirement Benefits Scheme -vs- Millimo, Muthomi & Co. Advocates & 2 others***(Civil Appeal (Application) E383 of 2021) [2022] KECA 491 (KLR) the Court of Appeal discussed negative orders thus; 7. *…As submitted by learned counsel for the 1st respondent, the position taken by this Court in respect of applications for stay of execution in respect of negative orders is clear. Negative orders cannot be stayed. We reiterate the sentiments of the predecessor of this Court in its decision in*[*Western College of Arts and Applied Sciences vs Oranga & Others*](https://kenyalaw.org/akn/ke/judgment/keca/1976/15)*(1976-80) 1 KLR, where the Court stated in respect of stay of execution as follows:* *…. But what is there to be executed under the judgment, the subject of the intended appeal" The High Court has merely dismissed the suit with costs. Any execution can only be in respect of costs. In Wilson v Church, the High Court had ordered the trustees of a church to make a payment out of that fund. In the instant case, the High Court has not ordered any parties to do anything, or to refrain from doing anything, or to pay any sum. There is nothing arising out of the High Court Judgment for this Court, in and application for stay, it is so ordered.* *Further, in the more recent case of Kenya Commercial Bank Limited vs Tamarind Meadows Limited & 7 Others [2016] eKLR, the Court of Appeal expounded on stay of execution stating:“* 1. *In Kanwal Sarjit Singh Dhiman vs Keshavji Juvraj Shah [2008] eKLR, the Court of Appeal, while dealing with a similar application for stay of a negative order, held as follows:* *“The 2nd prayer in the application is for stay (of execution) of the order of the superior court made on 18th December, 2006. The order of 18th December, 2006 merely dismissed the application for setting aside the judgment with costs. By the order, the superior court did not order any of the parties to do anything or refrain from doing anything or to pay any sum. It was thus, a negative order which is incapable of execution save in respect of costs only (see Western College of Arts & Applied Sciences vs. Oranga & Others\_\_ [1976] KLR 63 at page 66 paragraph C).”* 1. *The orders dismissing the applicant’s application to review, set aside or otherwise vary its earlier conditions extending time within which to file a reference against the Bill of costs cannot be stayed. The second aspect of the ruling was in respect of the application by the 1st respondent seeking garnishee orders against the 1st respondent, which orders were granted. The applicant challenges the said orders on appeal and asks us to stay their execution.* 2. Flowing from the above, the trial Court’s order setting aside the *ex-parte* judgment is incapable of being stayed. 3. Finally, as regards the prayer for a stay of further proceedings in the suit, the Applicant was required to demonstrate that substantial loss would be occasioned if the stay was denied, as stipulated under Order 42 Rule 6(2) of the Civil Procedure Rules. The Applicant contended that he would be deprived of the fruits of his properly obtained judgment. However, the setting aside of a default judgment merely returns the parties to the trial arena for the dispute to be resolved on its merits. 4. As already found, requiring the Applicant to prove his case at a full trial does not constitute substantial loss. Similarly, proceeding to trial does not render the intended appeal nugatory. Should this Court ultimately find favour with the Applicant, the default judgment could simply be reinstated. **Disposition:** 1. Deriving from the foregoing findings and conclusions, the following final orders hereby issue: - **[a] The Notice of Motion dated 15th August 2025 is allowed in the following manner: -** **[i] The Applicant is hereby granted leave to file the appeal out of time.** **[ii] The Applicant shall file and serve the Memorandum of Appeal within 14 days of this Ruling.** **[b] The Notice of Motion dated 28th July 2025 is hereby dismissed.** **[c] Since one application has succeeded and the other failed, parties shall bear their respective costs.** **[d] This file is hereby marked as CLOSED.** Orders accordingly. **DELIVERED**, **DATED** and **SIGNED** at **NAIROBI** this **9th** day of **September, 2026.** **A. C. MRIMA** **JUDGE** **Ruling virtually delivered in the presence of:** **Mr. Ayieko,** LearnedCounsel for the Applicant. **Ms Katasi** holding brief for Ms Wachuka for the Respondent. **Michael/Amina** –Court Assistants.