https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12878

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT NAKURU** **MISCELLANEOUS CIVIL APPLICATION NO. E079 OF 2026** **KAVRAJ KAUR T/A KAVRAJ KAUR & ASSOCIATES.........................................................APPLICANT** **VERSUS** **PRADEEP KUMAR.............................................RESPONDENT** **RULING** 1. Before this Court is the Applicant's Notice of Motion dated 13th March 2026 seeking: 1. ***Spent.*** 2. ***That the Applicant be granted leave to lodge an appeal out of time against the judgment of Hon. P. Nyota delivered on 12th May 2025 in Nakuru CMCC No. E158 of 2023.*** 3. ***That pursuant to granting of prayer (2) above, the applicant be allowed to file and lodge the annexed memorandum of appeal out of time.*** 4. ***Spent.*** 5. ***That there be stay of execution of the judgment, decree, and all consequential orders issued in Nakuru CMCC E158 of 2023,pending the hearing and determination of the intended appeal.,*** 6. ***That costs of this Application be provided for.*** 2. The Application is supported by the Supporting Affidavit of Kavraj Sagoo sworn on 13th March 2026 and a Supplementary Affidavit sworn on 3rd June 2026. The Respondent opposes the application vide a replying affidavit sworn on 10th April 2026. 3. The Applicant contends that they were not served with any mention or hearing notices, notice of entry of judgment, or the judgment itself. It was only upon service of the decree on 24th February 2026 by the firm of Okiro and Associates Advocates that the Applicant became aware of the judgment. 4. The Applicant further clarifies that the previously filed appeal (Nakuru HCA E031 of 2024) was against an interlocutory ruling denying leave to defend, and is still pending determination. The present application seeks leave to appeal the entire judgment, which is a distinct matter. 5. The Applicant contents that the intended appeal raises serious questions of law, including: (a) Locus standi. The Respondent instituted the suit in his individual capacity yet one property (Nakuru Municipality Block 6/41) belongs to a company, Kenya Grain Mills Limited, and another (Nakuru Municipality Block 10/96) is jointly owned with a third party. (b) Non-disclosure. The Respondent failed to disclose the true ownership status of the suit properties. (c) Violation of right to be heard. The matter proceeded ex-parte without notice to the Applicant. (d) Irregularity. The trial court awarded rental income exclusively to the Respondent without regard to the joint ownership and company ownership of the properties. 6. The Applicant argues that execution will occasion substantial loss, including financial loss, loss of reputation, and loss of client confidence, which cannot be compensated by an award of damages. The Applicant has offered to abide by any directions that this Court may give. 7. The Respondent opposes the application. He contends that the suit offends the doctrine of res judicata under Section 7 of the Civil Procedure Act. The Applicant has previously litigated the same issues and had a similar application dismissed on 27th November 2024 in Nakuru HCA E031 of 2024. 8. The Respondent contends that the Applicant was duly served but deliberately failed to file a defence. Leave to file defence out of time was dismissed on 7th February 2024. Without a defence on record, the Plaintiff's averments stand unchallenged even on appeal. 9. The Respondent argues that the Applicant cannot have a pending appeal file (HCA E031 of 2024) and simultaneously run to this court vide a miscellaneous application seeking orders related to appeal. The Applicant is, in effect, forum shopping. 10. The Respondent further contends that the Applicant has not demonstrated what substantial loss they would suffer if execution proceeds. The Respondent is the one suffering loss by being denied rent monies owed and held by the Applicant for years. The states that the Applicant has conveniently remained silent regarding the issue of security for costs and offers no specific security proposal. 11. Having carefully considered the application, the affidavits, and the applicable law, the issues arising for determination are: *(a) Whether the Applicant should be granted leave to appeal out of time.* *(b) Whether a stay of execution should be granted pending the intended appeal.* *(c) Who bears the costs of this application?* 12. The power of this Court to extend time for filing an appeal is discretionary under Section 79G of the Civil Procedure Act. The principles guiding this Court in exercising that discretion were settled in the case of ***Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999] 2 EA 231***, where the Court of Appeal held: *"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: 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."* 13. Applying these principles to the present case, it is clear that the judgment was entered on 12th May 2025. The Applicant was served with the decree on 24th February 2026 and filed this application on 13th March 2026. The delay from the date of judgment to the filing of the application is approximately ten months. While this is not an insignificant period, the Applicant has provided an explanation for the delay, which I shall consider below. 14. The Applicant has consistently maintained that they were never served with hearing notices, notice of entry of judgment, or the judgment itself. It was only upon service of the decree on 24th February 2026 that the Applicant became aware of the judgment. The Applicant had an ongoing appeal (HCA E031 of 2024) challenging the denial of leave to defend, which was still pending. The Applicant reasonably believed the main suit would not proceed pending the outcome of that appeal. 15. I find this explanation plausible and sufficient. The Applicant was not a passive litigant but was actively pursuing their right to be heard through the appellate process. The draft Memorandum of Appeal raises serious questions of law, including: (a) Whether the Respondent had locus standi to institute proceedings in his individual capacity for properties that are either company-owned or jointly owned. (b) Whether the trial court erred in awarding rental income exclusively to the Respondent without regard to the true ownership of the properties. (c) Whether the Applicant's right to be heard was violated when the matter proceeded ex-parte without notice. 16. These are not frivolous or vexatious grounds. The intended appeal has reasonable chances of success. While the Respondent has a right to enjoy the fruits of his judgment, the Applicant's right to be heard on appeal is equally important. The Respondent has not demonstrated that he will suffer any prejudice that cannot be compensated by way of costs or interest. 17. The Respondent's argument that this application offends the doctrine of res judicata is not persuasive. The Applicant's previous appeal (HCA E031 of 2024) was against an interlocutory ruling denying leave to defend, not against the final judgment. That appeal is still pending determination, meaning the issue has not been "finally decided" as required for res judicata to apply. 18. As was held in ***South Sioux Farms Limited v Odera & another [2024] KEHC 7590 (KLR)*** : *"The Black's Law Dictionary, Tenth Edition defines res judicata as: 'An issue that has been definitively settled by judicial decision.' The three essential elements are (1) an earlier decision on the issue, (2) a final judgment on the merits, and (3) the involvement of the same parties, or parties in privity with the original parties."* 19. The earlier appeal is still pending, and therefore the issue has not been "definitively settled." Moreover, the final judgment is a new and distinct matter. 20. The principles governing stay of execution pending appeal are set out in Order 42 Rule 6(2) of the Civil Procedure Rules, which provides: "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." 21. The court in ***James Wangalwa & another v Agnes Cheseto (2012) KEHC 1094 (KLR)*** further elaborated on the requirement of substantial loss: *"The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the Applicant as the successful party in the appeal. This is what substantial loss would entail... the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory."* 22. Applying these principles, I find that the Applicant has demonstrated that execution would occasion substantial loss, including financial loss, loss of reputation, and loss of client confidence as an advocate. This is a unique and serious form of loss that cannot be adequately compensated by an award of damages. 23. As discussed above, the Application was filed promptly upon service of the decree. 24. The Applicant has offered to abide by any directions that this court may give. I shall therefore impose a condition for security to safeguard the Respondent's interests. 25. For the reasons set out above, I find merit in the application and proceed to make the following orders: 1. ***The Applicant is hereby granted leave to lodge an appeal out of time against the judgment entered on 12th May 2025 in Nakuru CMCC No. E158 of 2023.*** 2. ***The Applicant is allowed to file and serve the Memorandum of Appeal within fourteen (14) days from the date hereof.*** 3. ***There shall be a stay of execution of the judgment, decree, and all consequential orders issued in Nakuru CMCC No. E158 of 2023 pending the hearing and determination of the intended appeal on condition that the Applicant deposits the entire decretal sum of Kshs. 1,193,700/- (comprising award of Kshs. 1,070,000/- and costs of Kshs. 123,700/-) in an interest-earning account in the suit names of the advocates for both parties within thirty (30) days from the date hereof in default, the stay shall automatically lapse.*** 4. ***Costs of this application shall abide the outcome of the intended appeal.*** 26. It is so ordered. **Dated, signed and delivered at Nakuru this 13th day of August, 2026.** **J. K. SERGON** **JUDGE** **In the presence of:** Ruto C/A Kimuge for the Applicant Okiro for the Respondent