Jose Tyre Limited & another v Muthima (Environment and Land Miscellaneous Case E005 of 2026) [2026] KEELC 3348 (KLR) (Environment and Land) (4 June 2026) (Ruling)

Jose Tyre Limited & another v Muthima (Environment and Land Miscellaneous Case E005 of 2026) [2026] KEELC 3348 (KLR) (Environment and Land) (4 June 2026) (Ruling) Neutral citation: [2026] KEELC 3348 (KLR) Republic of Kenya In the Environment and Land Court at Naivasha Environment and Land Environment and Land Miscellaneous Case E005 of 2026 MC Oundo, J June 4, 2026 Between Jose Tyre Limited 1st Applicant Christopher Muiruri Ngundu 2nd Applicant and Eliab Karugu Muthima Respondent Ruling 1.Coming up for determination is a Notice of Motion Application dated 20th February, 2026 brought under the provisions of Section 79G of the Civil Procedure Act, Sections 1A, 1B, 3A of the Civil Procedure Act, Order 22 rule 22, Order 42 Rule 6 (1), (2) & (6), Order 43 and Order 51 Rule 1 of the civil Procedure Rules 2010 and any other enabling provision of law wherein the Applicants have sought for the following orders:i.Spentii.Leave be and is hereby granted to the Applicants to lodge and serve an appeal out of time against the Judgement and Decree delivered on 9th December 2025 in Naivasha MCELC No. E007 of 2024 (Eliab Karugu Muthima v Jose Tyres Limited & 2 others).iii.There be a stay of execution of the Judgement/Decree and all consequential execution proceedings in Naivasha MCELC No. E007 of 2024 pending the hearing and determination of the intended appeal.iv.Costs be in the intended appeal. 2.The Application is premised on the ground, on its face and the Joint Supporting Affidavit of equal date, sworn by Joseph Mutua and Christopher Muiruri Ndungu, that depose that the judgement in Naivasha MCELC No. E007 of 2024: Eliab Karugu Muthima v Jose Tyres Limited & 2 others was delivered on 9th December 2025 by the Trial Court, and a decree subsequently extracted. However, their advocates on record in the lower court did not inform them of the date set for the delivery of the said judgement and/or that it had been delivered on 9th December 2025. 3.That subsequently, the Applicants did not file an appeal within the statutory period, which delay was not deliberate or intended to obstruct justice, but was occasioned by a lack of notice or communication regarding the delivery of the impugned judgement. That they only became aware that the judgement had been delivered on 12th February 2026, when they learnt that the Respondent had commenced execution proceedings in the lower court, including steps towards sale by public auction. Thereafter, they acted promptly and instructed their current advocates on record to take urgent steps, including seeking certified proceedings and judgement and preparing the intended appeal and present Application. Accordingly, through their current advocates on record, they wrote to the lower court requesting certified copies of proceedings, judgement and decree for purposes of appeal. 4.That they have an arguable and bona fide intended appeal raising weighty issues of law as per the attached Draft Memorandum of Appeal. They thus deposed that unless leave to file the appeal out of time was granted, they would be shut out from their right to appeal and would suffer manifest injustice notwithstanding that the delay has been explained and that they have acted promptly upon discovery. 5.They further deposed that the Respondent had commenced execution and the suit property had been threatened with sale by public auction. That once sold, their proprietary and possessory interest will be prejudiced, and restoration would be difficult and/or impossible in practical terms, thereby rendering the intended appeal nugatory. The threatened sale concerns immovable property, thus third-party interests are likely to arise, creating complex consequences that cannot be adequately remedied by costs or a later refund, hence they stand to suffer substantial loss. 6.That further, the decretal sum and attendant costs/interest are substantial, and hence they were apprehensive that, in the event the appeal succeed, recovery from the Respondent may be difficult as he has not disclosed his means or ability to refund neither are they aware of his assets sufficient to satisfy a restitution order. That they had brought the instant application without unreasonable delay since they had acted promptly from the date of discovery of judgement and the execution steps in filing the instant Application. That they are ready, willing and able to furnish such reasonable security for the due performance of the decree as the Honourable court may order. 7.They deposed that granting leave and stay would not prejudice the Respondent in any manner that cannot be compensated by costs and/or safeguarded by security, whereas refusal will occasion the Applicants irreparable prejudice and render the appeal nugatory. That it was thus just, equitable and in the interest of justice that the Applicants be granted leave to appeal out of time and that execution be stayed pending the hearing and determination of the intended appeal. 8.In response to and in opposition to the Applicant’s Application, the Respondent filed his Replying Affidavit dated 3rd March 2026, deposing that on 27th November 2025, the 1st Applicant’s Director and witness, Joseph Mutua, had appeared before the trial court in Naivasha CMC ELC No. E007 of 2024 and had testified for and on behalf of the Applicant when the said suit was reserved/fixed for judgement on 9th December 2025; thus, he was aware of the judgement date therein. Furthermore, on the said 27th November 2025, the 2nd Applicant, Christopher Muiruri Ndungu, had personally appeared before the trial court and had testified on his own behalf and in support of his defence when the said suit had been reserved/fixed for judgement on 9th December 2025, hence he was aware of the judgement date. 9.That, accordingly, the Applicants could not be heard to say that they were not aware of the date set for judgement, nor that they were not informed of the judgement date by their advocates on record. That, in any event, if the Applicant had not been informed of the judgement date as claimed, it was incumbent upon them to find out the judgement date, if the same had been delivered, and the contents of the judgement from their advocates on record, since the case belongs to the litigant and not to his/her advocate. That, nonetheless, the Applicants are loudly silent on what follow-up or effort (if any) they made after 27th November 2025 to find out, establish, and/or confirm whether judgement had been delivered on 9th December 2025, as scheduled. 10.He contended that the impugned judgement was delivered on the scheduled date, that is, the 9th November 2025, in the presence of the then Applicant’s Advocates on record. It was thus apparent that it was the filing and service of his application dated 4th February 2026 for orders on the settlement of the terms of sale of Property Title No. Naivasha Municipality Block 9/112 (the suit property/attached property), in execution of the judgement/decree passed on 9th November 2025, which awakened the Applicants and prompted the filing of the instant Application. That subsequently, the Applicants cannot be heard to say that they had become aware that the judgement of the trial court had been delivered on or about 12th February 2026, and that the Applicants were jointly and severally being economical with the truth and dishonest in alleging the same. 11.He contended that it was apparent from the Applicants’ conduct after delivery of the trial court’s judgement on 9th December 2025 that the Applicants had no intention of appealing against the trial court’s judgement in the said suit. It was the initiation of execution proceedings for the attachment and sale of the suit property in execution of the judgement/decree in the said suit that prompted the Applicants to file the instant Application. Subsequently, the Applicants’ intended appeal and the instant Application are an afterthought and an abuse of the court process, since they do not have a genuine reason for the delay in filing the intended appeal. 12.That the decree herein is a money decree. In the event that he executes the same and successfully recovers the decretal sum, and in the unlikely event that the Applicant’s intended appeal eventually succeeds, he has the means to refund the decretal sum to the 1st Applicant. He explained that he is a duly qualified and registered Dental Practitioner who has been working as a dental specialist since the year 2009 and was currently working as such at Baringo County Referral Hospital at a monthly basic salary of Kshs. 130,700/=. That he also owns the following immovable properties which are located within Naivasha Town:i.Naivasha Municipality Block 9/111.ii.Naivasha Municipality Block 9/231. 13.He contended that he is a man of means and has the financial capacity to refund the decretal sum to the 1st Applicant should his intended Appeal eventually succeed. He argued that it is not normal in money decrees for the Appeal to be rendered nugatory upon payment. He clarified that the registered owner of the suit property and the attached property is the 1st Applicant herein, who is the judgment-debtor in the said suit. That the 2nd Applicant, on the other hand, having failed to file any counterclaim for ownership or title over the suit/attached property, has no proprietary rights or interest to protect therein, and, in any case, no positive orders were made against him. He contended that after the delivery of judgement, the 2nd Applicant removed and carried away his fence and building materials from the suit/attached property, thus the same was currently vacant. 14.That from the foregoing, the Applicants are not entitled to any orders for stay of execution of the Judgement/decree passed on 9th December, 2025 and consequential execution proceedings in the said suit. The Applicants have not demonstrated that they are likely to suffer substantial loss to render their intended Appeal nugatory unless an order of stay of execution of the lower court judgement/decree is made in their favour, since they have not satisfied the principles for the grant of a stay of execution pending appeal. He thus deposed that the Applicants’ Application dated 20th February 2026 has no merit and the same should be dismissed with costs. 15.He argued that he is entitled to the fruit of the judgement that had been delivered on 9th December 2025 and that he will suffer prejudice if denied an opportunity to enjoy the fruits of the said judgement without any justifiable cause or reason. He thus urged the court to dismiss the instant Application with costs for being unmeritorious. 16.In a rejoinder, the Applicants, through their Supplementary Affidavit, dated 11th March 2026, sworn by Joseph Mutua, the Director of the 1st Applicant, contended that whilst it was true that they had attended court on 27th November 2025, the Respondent’s assertion that they were made aware of the judgement date is misleading and inaccurate, since no judgement date had been communicated to them by their former advocates on record after the hearing. Instead, their advocate had informed them that they would be notified once the judgement was delivered, after the final submission was filed. The mere fact that they had attended court on the hearing date did not automatically confer knowledge of the date of delivery of judgement, particularly where the litigants were represented by advocates who had undertaken to communicate such developments. 17.They admitted that after the proceedings on 27th November 2025, they did not independently monitor the court file or make direct enquiries with the court registry, as they reasonably relied on their advocates to keep them informed of any developments in the matter. He argued that it is the ordinary and reasonable expectation of any litigant who has retained counsel that their advocate would discharge their professional duty to inform them of important developments in the case, including the delivery of judgement and any timelines for appeal. Unfortunately, their former advocates failed to inform them that the judgement had been delivered on 9th December 2025, to provide them with a copy of the judgement, or to advise them of the timelines within which an appeal ought to have been filed. 18.He maintained that they had only become aware of the existence of the judgement on or about the 12th February 2026, when they learnt that the Respondent had initiated execution proceedings and was taking steps towards the sale of the suit property by way of public auction after which they had promptly instructed their current advocates on record to obtain copies of the proceedings and judgement, prepare the Draft Memorandum of Appeal and file the present application without delay. That from the time that they had become aware of the judgement, they had acted diligently, promptly and in good faith hence there had been no inordinate delay whatsoever. 19.He maintained that their intended appeal raises serious and arguable issues of law and fact, including but not limited to:i.The proper interpretation and application of Section 26 of the Land Registration Act regarding indefeasibility of title;ii.The legal threshold required to impeach a registered title;iii.The protection afforded to a bona fide purchaser for value without notice, particularly in relation to the 2nd Applicant; andiv.The evidential burden applicable to allegations intended to defeat a registered title. 20.He contended that the aforementioned issues are substantial and deserve consideration by the Appellate Court. That, indeed, because the suit property is immovable, if the execution process proceeds and the property is sold to a third party at public auction, it would create a third-party proprietary interest that would be extremely difficult, if not impossible, to reverse. Thus, the Applicants’ intended appeal would be rendered entirely nugatory, as the subject matter of the dispute would already have passed into the hands of the third parties. 21.He argued that, since the 2nd Applicant was a party to the proceedings in the lower court, actively participated in the trial, and testified, the execution process now underway, including the threatened auction of the suit property, directly affects the proprietary interest of the 2nd Applicant, who had purchased the suit property and remains in occupation thereof. Thus, the 2nd Applicant had proper legal standing to seek the relief sought in the present Application. He reiterated that the Applicants remain ready, willing and able to furnish such reasonable security as the Honourable Court may deem fit to order for the due performance of the decree should the intended appeal ultimately fail. 22.The instant Application was disposed of by way of written submissions, which I shall proceed to summarise as hereinunder. Applicants’ Submissions. 23.The Applicants vide their Submissions dated 11th March 2026 outlined two (2) issues for resolution as follows:i.Whether the Applicants have established sufficient cause to warrant leave to file the appeal out of time.ii.Whether the Applicants have satisfied the conditions for the grant of a stay of execution pending the intended appeal. 24.On the first issue for resolution as to whether the Applicants have established sufficient cause to warrant leave to file the appeal out of time, he relied on the provisions of Section 79G as well as the principles guiding the court when exercising this discretion to grant or deny leave to appeal out of time as had been encapsulated in the Court of Appeal case of Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] eKLR and the decided case in Byegon & 2 others v Ngeno [2023] KEELC 312 (KLR), where the court had cited the case of Leo Sila Mutiso vs. Rose Hellen Wangari Mwangi, in Civil Application No. NAI 255 of 1997 (unreported). 25.As to whether the delay is short and reasonable, they reiterated that the judgment in the lower court was delivered on 9th December 2025, while the present application was filed on 20th February 2026, representing a delay of approximately two months and eleven days. They, however, urged the court to factor in the period that stops running for the purposes of the Christmas recess, being the 21st December 2025 to 13th January, 2026, as provided under the provisions of Order 50 Rule 4 of the Civil Procedure Rules, 2010. It was their submission that such a delay could not be described as inordinate, particularly where a reasonable explanation had been provided. 26.On whether the delay was caused by a failure of communication by their former advocates, they submitted in the affirmative and maintained that they had offered to explain that their former advocates on record had failed to notify them that judgment had been delivered on 9th December 2025. They had only become aware of the existence of the same on 12th February 2026, when they learnt that the Respondent had commenced execution proceedings, including steps towards the sale of the suit property by public auction, whereupon they had immediately instructed their current advocates on record to act with speed. 27.They contended that the Respondent’s argument that the Applicants cannot claim ignorance because they were present in court on 27th November 2025, when the matter was reserved for judgment, is misconceived, since presence at the time a matter is reserved for judgment does not amount to notice of the actual delivery of judgment, particularly where litigants are represented by advocates who undertake to notify them of such developments. They emphasized that the failure of communication in the present case lies squarely with the Applicants’ former advocates, and that the law is settled that a litigant should not be penalised for the mistake of counsel. They relied on the decision in Belinda Murai & Others v Amos Wainaina [1978] KLR 278, where Madan JA held that:“A mistake is a mistake. It is no less a mistake because it is an unfortunate slip… The door of justice is not closed because a mistake has been made by a lawyer.” 28.They thus submitted that the delay had been sufficiently explained and warrants the exercise of this Honourable Court’s discretion. 29.Regarding whether the intended appeal is arguable, they reiterated the substantial issues of law set out in their Draft Memorandum of Appeal and their Supporting and Supplementary Affidavits, arguing that, at this stage, they were not required to prove that the appeal will succeed, but only that it raises arguable issues deserving consideration by the appellate court. 30.On the second issue for determination, namely whether a stay of execution should be granted, they relied on the principles governing stays of execution as set out in Order 42 Rule 6(2) of the Civil Procedure Rules to submit that the Applicants must demonstrate:i.substantial loss;ii.that the application was made without unreasonable delay; andiii.willingness to provide security. 31.On the first limb, they explained that the decree was being executed by the sale of the suit land, Land Parcel Naivasha Municipality Block 9/112, by public auction. They further submitted that the suit property is immovable property and that, if sold to a third-party purchaser, third-party proprietary interests would crystallize, making reversal practically impossible even if the appeal succeeded. They argued that the serious consequences of selling the land pending the intended appeal could not be overstated, since, if a stay of execution were not granted, the appeal could be rendered nugatory if the property fell into the hands of a third party, not a party to the appeal. They thus contended that they would suffer irreparable and irreversible prejudice unless the property was preserved pending appeal. In support of the foregoing, they relied on the Byegon’s case (supra). 32.On the second limb, they argued that they had filed the present application immediately upon discovering the judgment and that the execution process had followed immediately thereafter. They further submitted that, from the date of discovery (12th February 2026) to filing (20th February 2026), the Applicants had acted promptly and diligently. 33.On the last limb, they submitted that they had expressly indicated their readiness and willingness to provide such reasonable security as the Court may order for the due performance of the decree, and hence the Respondent will suffer no prejudice if a stay is granted. 34.In summary, they submitted that the delay in filing the appeal was satisfactorily explained; that the intended appeal raises serious and arguable issues; that the threatened sale of the suit property would render the appeal nugatory; and that they were ready to provide security. They thus urged the Court to exercise its discretion in their favour, to preserve the subject matter of the dispute and to safeguard the Applicants’ constitutional right of appeal by allowing the motion herein as prayed. Respondent’s Submission 35.The Respondent, on the other hand, vide his submissions dated 23rd March, 2026, framed his issues for determination as follows:i.Whether the Applicants are entitled to an order for extension of time to file an appeal against the judgement/decree in Naivasha MC ELC No. E007 of 2024.ii.Whether the Applicants are entitled to a stay of execution of the judgement/decree in the said suit. 36.Thereafter, he founded his submissions on the provisions of Section 79G of the Civil Procedure Act, which gives the appellate Court discretion to extend time for filing an appeal from a subordinate Court to the High Court. He placed reliance on the Supreme Court’s decision in Nicholas Kipto Arap Korir Salat v IEBC & 7 Others [2014] eKLR and the decided case of David Mithamo Gatiu v Boniface Karimi Nyamu [2015] eKLR on the general principles upon which an application for extension of time could be granted, as captured. He argued that, from the Affidavits filed herein, it was clear that the impugned judgement had been delivered on 9th December 2025 in the presence of the Applicants’ Advocates, but the Appellant did not file an Appeal against the said judgement within the 30-day period stipulated by law. That the instant Application, filed on 23rd February 2026, was filed 76 days (2 months and 16 days) after the delivery of judgement; hence, the Applicants were required to explain the reason for such delay to the satisfaction of the Court. 37.He first reiterated the Applicant’s principal reason for the delay, namely that they had not been informed of the date of judgement, and then reiterated the contents of his Replying Affidavit, which set out that the Applicants were in court on the day the date of judgement was fixed and that the impugned judgement was indeed delivered on that date. He maintained that the Applicants could not be heard to say that they were unaware of the judgement date or that their former advocates on record had failed to inform them of it. He also reiterated the contents of his Replying Affidavit regarding the steps the Applicants had taken to inquire into the progress of the matter since their court attendance on 27th November 2025. Accordingly, the Applicants could not be allowed to blame their former advocates on record for their failure to file an appeal against the impugned judgement within the statutory timelines. To buttress his position, he relied on the Court of Appeal’s decision in the case of Wachira v Mugekenyi (9 As Administrator of the Estate of Mbugua Mugekenyi - Deceased) & 10 others (Civil Application E250 of 2020) [2022] KECA 1207 (KLR) (4 November 2022) (Ruling). 38.It was his contention that, having closed their defence case on 27th November, 2025, or being aware that the suit before the trial court was pending judgement, it was the Applicants duty to follow up, make enquiries, and establish from their advocates before the trial court the date set for judgement, and to ascertain whether judgement had been delivered and the outcome of the litigation before the trial court. That their newfound energy in appointing their current advocates and filing the present application did not absolve them from the long period of inaction. He relied on the case of Habo Agencies Limited v Wilfred Odhiambo Musingo [2015] eKLR, where the Court held that it was not enough for a party in litigation to simply blame the advocates on record for all manner of transgressions in the conduct of the litigation, and that parties have a responsibility to show interest in and to follow up their cases even when they are represented by counsel. 39.He submitted that the explanation for the delay given by the Applicants is neither reasonable, convincing nor satisfactory, and that the same should therefore be rejected by the Honourable Court, as the Applicants are guilty of unreasonable, inordinate and inexcusable delay. He further submitted that the Applicants failed to lay a basis for an extension of time to file an appeal against the trial Court’s judgement in Naivasha MC ELC No. E007 of 2024 to the satisfaction of the Honourable Court. 40.As to whether the Applicants are entitled to a stay of execution of the trial Court’s judgement, he first clarified that this depended on the success or otherwise of the Applicants’ Application for extension of time to file an appeal out of time, and that, in view of their foregoing submissions, the Applicants are not entitled to a stay of execution. To illustrate his position, he relied on the case of Kamore v Ndiritu & 2 Others (Environment and Land Miscellaneous Application E001 of 2024) [2024] KEELC 6497 (KLR) (3 October 2024) (Ruling). 41.Regarding the grant of a stay of execution pending appeal, he relied on the principles set out in Order 42 Rule 6 (1) and (2) of the Civil Procedure Rules. On substantial loss, he relied on the decision in George Were Nyakora v Fredrick Odhiambo Chiambe (Siaya ELC Case No. 38 of 2021) to contend that it was undisputed that the judgement/decree passed in his favour by the trial Court in Naivasha MC ELC No. E007 of 2024 was a money decree in respect of which the Respondent had commenced execution proceedings. He placed reliance on the decided case of Kenya Shell Limited v Benjamin Karunga Kabiru & Another [1986] eKLR, where it was held that, in a money decree, an appeal is not rendered nugatory if payment is made, especially where there is no evidence to show that the judgment-creditor/decree holder has no means to refund the decretal sum if the appeal eventually succeeds. 42.He reiterated the contents of his Replying Affidavit as to his financial means, that the suit property belongs to the 1st Applicant herein and that the 2nd Applicant, who had since removed his fence and carted away his building materials, has no proprietary interest over the suit property. He relied on the decided case of Johana Mbugua Karanja v Margaret Waithera Gitiche Nyahururu Misc. ELC Application No. 13 of 2017 to submit that, when dealing with an application for stay of execution, the Court has to balance the Applicant’s rights and interests with those of the Respondent. 43.That in the present case, there was no evidence or material showing that the Applicants would suffer substantial loss if the judgment of the trial Court is executed during the pendency of the intended appeal. It was thus his submission that the Applicants had not established that, unless a stay of execution was granted, they would suffer substantial loss and that the intended appeal, if successful, would be rendered nugatory. 44.On delay, he submitted that the instant application for a stay of execution was brought 76 days, or 2 months and 16 days, after the delivery of the trial court’s judgement, and thus it had not been brought without unreasonable delay. 45.Whereas the Applicants had indicated that they are ready to furnish security for the due performance of the decree as the Honourable Court may order, they had not satisfied all the principles or requirements for the grant of a stay of execution of the judgement pending appeal or intended appeal. It was thus their submission that the instant Application has no merits and should be dismissed with costs. Determination. 46.Having considered the application before the court herein, the opposition thereto, the submissions by both parties, the authorities cited, and the applicable law, consequently, the pending issues for determination are as follows;i.Whether there should be an extension to file an Appeal.ii.Whether there should be orders of stay of execution pending appeal. 47.The provisions of Section 79G of the Civil Procedure Act give an appellate court discretion to extend time for filing an appeal from the subordinate Court to the High Court. (Read Environment and Land Court) 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. ‘’ 48.The Applicants bring their application seeking leave to file an appeal out of time against the Judgement and Decree delivered on 9th December 2025 in Naivasha MCELC No. E007 of 2024 (Eliab Karugu Muthima v Jose Tyres Limited & 2 others). 49.In the case of Nicholas Kiptoo Arap Korir Salat vs. The Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR, the Supreme Court of Kenya held that:“… it is clear that the discretion to extend time is indeed unfettered. It is incumbent upon the Applicant to explain the reasons for delay in making the application for extension and whether there are any extenuating circumstances that can enable the Court to exercise its discretion in favour of the Applicant.“… we derive the following as the underlying principles that a Court should consider in exercising such discretion:i.extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party, at the discretion of the Court;ii.a party who seeks extension of time has the burden of laying a basis, to the satisfaction of the Court;iii.whether the Court should exercise the discretion to extend time, is a consideration to be made on a case- to- case basis;iv.where there is a reasonable [cause] for the delay, [the same should be expressed] to the satisfaction of the Court;v.whether there will be any prejudice suffered by the Respondent, if extension is granted;vi.whether the application has been brought without undue delay; andvii.whether in certain cases, like election petitions, public interest should be a consideration for extending time” 50.Have the Applicants fulfilled the above requirements to be granted leave to file their appeal out of time? The Applicants argue that their former lower court advocates, whom they reasonably relied on to update them, failed to inform them when the case was fixed for judgment or that judgment had been delivered on 9th December 2025. It was on 12th February 2026 that they discovered that judgment had been delivered after the Respondent initiated execution proceedings. 51.They argue that the delay of approximately two months and eleven days was short and reasonable, especially when factoring in the court's Christmas recess period (21st December 2025 to 13th January 2026), which stopped time from running under Order 50 Rule 4 (sic.) 52.They contended that a litigant should not be penalised for the mistakes or communication failures of their advocate, as was established in the Belinda Murai v Amos Wainaina case supra. 53.They maintain that their Draft Memorandum of Appeal raises weighty and bona fide legal issues, including the interpretation of land title indefeasibility under Section 26 of the Land Registration Act, the threshold to impeach registered titles, and the protection of a bona fide purchaser for value, specifically regarding the 2nd Applicant. 54.Section 79G of the Civil Procedure Act and Order 50 Rule 6 is judicial, and not absolute. Indeed, the Court of Appeal in Leo Sila Mutiso v. Rose Hellen Wangari Mwangi [1999] eKLR, held as follows:‘’It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well stated that in general the matters which this Court takes into account in deciding whether 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." 55.The extension of time is not a right of a party. It is an equitable remedy available only to a deserving party at the Court's discretion. I have considered that, whereas the Judgement of the trial Court was delivered on 9th December 2025, the Application herein is dated the 20th February 2026, the delay was a total of 73 days. While the law does not set a stopwatch on what constitutes an inordinate delay, the explanation provided must be reasonable and credible, as was held in the case of Nicholas Kiptoo (supra) 56.The Applicants’ position is that their previous lawyer failed to inform them of the judgment date, but took immediate action (within 8 days) once they discovered the execution proceedings, by hiring a new Advocate. 57.I have looked at the Applicants’ Application plea for extension of time which was supported by the grounds embodied in the Application as well as the Supporting Affidavit and Supplementary Affidavit. I have also looked at the copy of the Draft Memorandum of Appeal, which raises serious questions regarding Section 26 of the Land Registration Act (indefeasibility of title) and the rights of a bona fide purchaser for value. Because land rights are highly protected under the Kenyan Constitution, courts generally lean toward allowing parties their day in court to argue proprietary disputes rather than locking them out on technicalities. 58.I thus find that the Application dated 20th February, 2026, herein was not brought without unreasonable/excusable delay. The extension of time is not a party's right. It is an equitable remedy that is only available to a deserving party, at the discretion of the Court which discretion I now exercise in favor of allowing the Application for enlargement of time so as to enable the Applicants file their Appeal after the expiry of the statutory period so as to enable them exercise their right of Appeal more so noting that there was no evidence of prejudice brought forth by the Respondent should the application be allowed. 59.On the second issue for determination, as to whether there should be a stay of execution, Order 42 Rule 6 of the Civil Procedure Rules stipulates as follows:‘No Appeal or second Appeal shall operate as a stay of execution or proceedings under a decree or order Appealed from except in so far as the court Appealed from may order but, the court Appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court Appealed from, the court to which such Appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the Appeal is preferred may apply to the appellate court to have such order set aside.(2)No order for stay of execution shall be made under subrule (1) unless—(a)the court is satisfied that substantial loss may result to the Applicant unless the order is made and that 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.’ 60.There are three conditions for granting of a stay order pending Appeal under Order 42 Rule 6 (2) of the Civil Procedure Rules, to wit:i.The Court is satisfied that substantial loss may result to the Applicant unless a stay of execution is ordered;ii.The application is brought without undue delay andiii.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. 61.For the Applicants to succeed in the present application, the onus was on them to satisfy the conditions as set down under Order 42 Rule 6 of the Civil Procedure Rules. Indeed, the purpose of a stay of execution is to preserve the substratum of the case. In the case of Consolidated Marine. vs. Nampijja & Another, Civil App.No.93 of 1989 (Nairobi), the Court held that: -“The purpose of the application for stay of execution pending Appeal is to preserve the subject matter in dispute so that the right of the Appellant who is exercising his undoubted right of Appeal are safeguarded and the Appeal if successful is not rendered nugatory”. 62.On the first condition of proving that a substantial loss may result unless a stay order is made, it was incumbent upon the Applicants to demonstrate what kind of substantial loss they would suffer were the stay order not made in their favour. 63.What amounts to substantial loss was expressed by the Court of Appeal in the case of Mukuma vs. Abuoga (1988) KLR 645 where the Lordships stated that;“Substantial loss is what has to be prevented by preserving the status quo because such loss would render the Appeal nugatory.” 64.The Applicants herein contend that the Respondent has initiated execution proceedings to sell Land Parcel Naivasha Municipality Block 9/112 at a public auction and that if the said piece of land is sold to a third-party purchaser at an auction, proprietary rights would crystallize and the process is virtually irreversible. If their appeal eventually succeeds, they cannot get the land back, thus rendering the appeal nugatory. 65.The Respondent argues that this is a money decree, that he is a wealthy dental specialist earning Kshs. 130,700/= a month, and that he owns two other plots of land in Naivasha town, meaning he has the means to refund the money should the Appeal succeed. 66.Platt, Ag.JA (as he then was) in Kenya Shell Limited vs. Kibiru [1986] KLR 410, at page 416 expressed himself as follows:“It is usually a good rule to see if Order XLI Rule 4 of the Civil Procedure Rules can be substantiated. If there is no evidence of substantial loss to the Applicant, it would be a rare case when an Appeal would be rendered nugatory by some other event. Substantial loss in its various forms, is the corner stone of both jurisdictions for granting a stay. That is what has to be prevented. Therefore without this evidence it is difficult to see why the Respondents should be kept out of their money”.On the part of Gachuhi, Ag.JA (as he then was) at 417 held:“It is not sufficient by merely stating that the sum of Shs 20,380.00 is a lot of money and the Applicant would suffer loss if the money is paid. What sort of loss would this be" In an application of this nature, the Applicant should show the damages it would suffer if the order for stay is not granted. By granting a stay would mean that status quo should remain as it were before judgement. What assurance can there be of Appeal succeeding" On the other hand, granting the stay would be denying a successful litigant of the fruits of his judgement.” 67.I find that although the underlying judgment may translate into a money value, the mode of execution chosen is the forced sale of real estate. The court will prioritise preserving the suit property to avoid multi-party complications involving innocent third-party auction buyers. Furthermore, in exercising the court’s discretion, to always opt for the lower rather than the higher risk of injustice, I find that the Applicants have discharged the first condition of proving that substantial loss may result unless a stay order is made 68.On the second condition, there is no dispute that the impugned judgment was delivered on 9th December 2025. The Respondent points out that this application was filed 76 days later on the 20th February 2026, arguing this is an unreasonable delay. The Applicants state that they only became aware of the judgment on 12th February 2026, when the auction plans were revealed, and that they filed this application on 20th February 2026, just 8 days later. 69.I find that because the Applicants moved with speed of 8 days from the date they claim they discovered the active execution threat, they did not sit on their rights once they knew the suit land was actually going to be auctioned. Subsequently, I find that the said application is brought without undue delay. 70.On the last condition as to provision of security, the Applicant in the present application has offered to furnish security for the due performance of such decree as is mandatory as per the wording of Order 42 Rule 6 (2) (b) of the Civil Procedure Rules. 71.The High Court in the case of Matata & another v Rono & another (Civil Appeal E034 of 2024) [2024] KEHC 2799 (KLR) (19 March 2024) (Ruling), had at Paragraph 17 observed as follows:“The Court must similarly consider the overriding objective and balance the interest of the parties to the suit while considering the issue of security to be offered. The law is that where the applicant intends to exercise his undoubted right of appeal, and in the event, that he was eventually to succeed, he should not be faced with a situation in which he would find himself unable to get back its money. Likewise, the respondent who has a decree in his favour should not, if the applicant were eventually to be unsuccessful in its intended appeal, find it difficult or impossible to realize the decree. This is the cornerstone of the requirement for security” 72.The Courts are now enjoined to give effect to the overriding objective in the exercise of their powers under the Act or in the interpretation of any of its provisions, according to Section 1A (2) and 1B of the Civil Procedure Act. It therefore follows that all the pre-overriding objective decisions must now be looked at in the light of the said provisions. What the Court ought to do is balance the Respondent’s right to enjoy the fruits of his judgment against the Applicants’ right to ensure their appeal is not rendered an academic exercise by the sale of the land and therefore place the parties before the Court on equal footing. 73.I find that the intended grounds of appeal challenge the trial court’s evaluation of evidence on a balance of probabilities. To lock out the Applicant at this stage would be a harsh exercise of discretion, especially where property rights are involved. Substantial justice under Article 159 of the Constitution requires that the court protect the interests of both parties. Thus, it is directed as follows:i.Leave is hereby granted to the Applicants to file and serve their Record of Appeal within forty-five (45) days from the date of this Ruling.ii.A Stay of Execution of the decree in MCELC No. E007 of 2024 (Eliab Karugu Muthima v Jose Tyres Limited & 2 others) is granted pending the hearing and determination of the Appeal, on condition that they deposit the entire decretal sum into a joint interest-earning account in the names of counsel for both parties within thirty (30) days.iii.In default of compliance with any of the above conditions, the stay of execution shall stand vacated, and the Respondent shall be at liberty to proceed with execution.iv.There shall be no costs awarded. DATED AND DELIVERED AT NAIVASHA VIA TEAMS MICROSOFT THIS 4TH DAY OF JUNE 2026.M.C. OUNDOENVIRONMENT & LAND COURT– JUDGE.