https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9438

Kariuki v Mukara (Civil Appeal E788 of 2025) [2026] KEHC 9438 (KLR) (Civ) (23 June 2026) (Ruling) Neutral citation: [2026] KEHC 9438 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E788 of 2025 AC Mrima, J June 23, 2026 Between Charles Kariuki Applicant and Martin Richard Ngiema Mukara Respondent Ruling 1.Before Court for determination is the Applicant’s application by way of a Notice of Motion dated 31st July 2025. The application sought for the following orders: -1.That this Application be certified urgent, service be dispensed with thereof, and the same be heard ex-parte in the first instance.2.That this Honourable Court be pleased to order a stay of execution of the Judgment delivered by Hon. J.W. Munene on 5th July 2024, the resultant decree, Warrants of attachment and of sale dated 19th June 2025, pending the hearing and determination of this application interpartes.3.That this Honourable Court does grant leave to the firm of Thairu Ng’ang’a & Associates to come on record for the Appellants/Applicants in place of K.N. Mburu & Associates Advocates.4.That this Honourable Court be pleased to grant the Applicant leave to appeal out of time against the Ruling of Hon. T.K. Nambisia in Milimani Small Claims Court SCCCOMM E3652 OF 202; Martin Richard Ngiema Mukara Vs Charles Kariuki, delivered on 16th April 2025.5.That Civil Appeal No. E788 of 2025; Charles Kariuki Vs Martin Richard Ngiema Mukara, be admitted out of time and be deemed as properly filed and on record.6.That this Honourable Court be pleased to order a stay of execution of the Judgment delivered by Hon. J.W. Munene on 5th July 2024 in Milimani Small Claims Court SCCCOMM E3652 of 2024, the resultant decree, Warrant of attachment and of sale dated 19th June 2025, pending the hearing and determination of the Appeal.7.That the costs of the application be borne by the Respondent. 2.The application was supported by the Applicant’s Affidavits sworn on 31st July 2025 and 10th December 2025 respectively. The Respondent vehemently opposed the application vide a Replying Affidavit sworn on 5th November 2025. 3.On the directions of this Court, the application was canvassed by way of written submissions where both parties filed comprehensive submissions urging the Court to find in their respective favour. Several decisions were referred to as well. 4.This Court has carefully considered the application alongside the response and the submissions on record. Whereas the parties were directed to engage with a view of finding a common ground on the instant application so as to pave way to the hearing of the main appeal way back in August 2025, no such consensus was reached at thereby leading to this ruling. 5.As a starting point, this Court’s attention was drawn by the manner in which the application was presented. The Applicant filed the ‘appeal’ out of time without the leave of the Court and sought to regularize such through the application. The Supreme Court in County Executive of Kisumu v County Government of Kisumu & 8 others (Civil Application 3 of 2016) [2017] KESC 16 (KLR) (Civ) (12 April 2017) (Ruling) laid bare the manner in which a party seeking to institute an appeal out of time should approach Courts. The Apex Court rendered itself in paragraph 35 thus: -(35)We are in total agreement with the respondent that an appeal filed in this Court out of time without leave of this Court is irregular and this Court will not invoke such ‘novel’ principles as urged by applicant so as to validate that petition and deem it as properly filed. We buttress this Court’s position in Nicholas Salat when this Court stated thus:…In his submissions, counsel for the applicant acknowledged having already filed his appeal. He now prays for extension of time and urges that once so granted, the Petition of appeal already filed be deemed to have been duly filed.What we hear the applicant telling the Court is that he is acknowledging having filed a ‘document’ he calls ‘an appeal’ out of time without leave of the Court. Pursuant to rule 33(1) of the Court’s Rules, it is mandatory that an appeal can only be filed within 30 days of filing the notice of appeal. Under rule 53 of the Court’s Rules, this Court can indeed extend time. However, it cannot be gainsaid that where the law provides for the time within which something ought to be done, if that time lapses, one need to first seek extension of that time before he can proceed to do that which the law requires.By filing an appeal out of time before seeking extension of time, and subsequently seeking the Court to extend time and recognize such ‘an appeal’, is tantamount to moving the Court to remedy an illegality. This, the Court cannot do.To file an appeal out of time and seek the Court to extend time is presumptive and in-appropriate. No appeal can be filed out of time without leave of the Court. Such a filing renders the ‘document’ so filed a nullity and of no legal consequence. Consequently, this Court will not accept a document filed out of time without leave of the Court. It is unfortunate that Petition No. 10 of 2014 has been accorded a reference number in this Court’s Registry. This is irregular as that document is unknown in law and the same should be struck out. Where one intends to file an appeal out of time and seeks extension of time, the least (sic) he can do is to annex the draft intended petition of appeal for the Court’s perusal when making his application for extension of time; and not to file an appeal and seek to legalize it. Petition No. 10 of 2014 having been filed out of time and without leave (an order of this Court extending time), is expunged from the Court’s Record.” 6.Returning to the matter at hand, the ruling appealed against in this matter was delivered on 16th April 2025. Section 38 of the Small Claims Court Act, accords the High Court the jurisdiction to hear appeals from the Small Claims Court. The legal regime on such appeals is the Civil Procedure Act and the Civil Procedure Rules made thereunder. 7.Section 79G of the Civil Procedure Act provides 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. 8.Therefore, the Applicant had thirty days to lodge his appeal from the 16th April 2025, that is up to the 15th May 2025. The ‘appeal’ was filed sometimes in July 2025 well outside the appeal window. As stated, the filing was without the leave of this Court. 9.The decisions of the Supreme Court are binding upon all other Courts save the Supreme Court itself. That is the plain textual reading of Article 163[7] of the Constituion. In that case, therefore, this Court has no option, but to apply the law as established by the Apex Court. 10.Consequently, this ‘appeal’ suffers a false start as it has no legal leg to stand on and the following final orders hereby issue: -(a)Civil Appeal No. E788 of 2025 is hereby struck out with costs.(b)The orders of stay of execution on record are hereby set-aside and/or discharged accordingly.(c)This matter is hereby marked as closed.Orders accordingly. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 23RD DAY OF JUNE, 2026.A. C. MRIMAJUDGERuling virtually delivered in the presence of:Mr. Byron, Learned Counsel for the Applicant.Miss Muthoni, Learned Counsel for the Respondent.Michael/Amina – Court Assistants.