https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12001

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MERU** **CIVIL MISC.APPLICATION NO. E013OF 2026** **RAYMOND ROY KIPROP …………………………………..1ST APPLICANT** **DEXTEROUS LIMITED ……………………………………… 2ND APPLICANT** **-VERSUS-** **JOHN MUHOHO WAWERU (Suing as the legal representative of the Estate of** **MARGRET MUMBI WAWERU (Deceased) ……………………. RESPONDENT** **RULING** 1. Coming up for determination is the application dated 19/2/2026 which seeks the following orders: 2. Spent 3. That this Honourable Court be pleased to issue a temporary order for stay of execution of the judgment and decree in MERU CMCC NO. E144 of 2024 pending the inter-parties hearing of this application and thereafter as the court shall order. 4. That this Honourable court be pleased to grant leave to the applicants to file an appeal out of time against the decision and judgment of the trial court in MERU CMCC NO. E144 OF 2024. 5. That upon granting the orders in prayer No. 3 here above, this honourable court be pleased to issue an order for stay of execution of the judgment and decree in MERU CMCC NO. E144 OF 2024 pending the filing, hearing and determination of the said intended appeal. 6. That the costs of this application be costs in the appeal. 7. The applicant’s case is that the trial court delivered its judgment in the aforesaid suit on 28/11/2025. That the judgment was handwritten and it was to be typed and uploaded on the CTS. That the applicant’s insurer required a copy of the judgment for personal and make a decision on whether or not to appear against the judgment. That at the time of filing the application, the judgment was yet to be uploaded on the CTS. That despite this, the applicant’s counsel has been instructed by his insurer to appeal against the award made by the trial court. That the delay is not inordinate and it was excusable in the circumstances. That the appeal has high chances of success. 8. The respondent filed a replying affidavit sworn on 3rd March 2026. It is stated that he is not in the process of executing the decree as he had not received a certified copy of the judgment. That no good reasons are adduced to explain the delay in filing the appeal. That the appeal has no chance of success. 9. The respondent asked the court that if a stay is granted or order the applicant to deposit the entire decretal sum into a joint account in the names of the advocates for the parties. 10. Parties filed submissions which I have perused and will refer to them where necessary. 11. As correctly submitted by the parties, section 79G of the Civil Procedure Act grants this court the power to enlarge time to file an appeal. The section provides as follows: **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 principles that guide the court in such an application were set out in **Lucy Wangari Mwangi & 6 others v Jacinta Kamuyu Githungu & another [2021] KEHC 4840 (KLR)** where the decision in **Mwangi vs Kenya Airways Ltd [2003] eKLR** was quoted 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 settled that in general the matters which this court takes into account in deciding whether or not 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.”*** 1. The applicant states that he was unable to obtain a copy of the judgment, to enable them decide whether to appeal or not. The respondent actually confirms that he himself does not have the judgment and is unable to execute the decree arising therefrom. 2. The situation described by the parties is very alarming. It is inconceivable that a judgment is delivered and three months down the line it is not available to the parties. 3. On this ground alone, I find that there is sufficient reason to allow the application. 4. An appeal is not just any pleading. It is assumed that the intended appellant has had a look at the decision in question before he or she can draft and file the Memorandum of Appeal. Without it, the applicant was truly handclapped. 5. On whether or no to grant the stay, I have considered the matter. The draft Memorandum of Appeal is only on quantum of damages awarded by the trial court. In my view, the applicant cannot expect the entire awards to be set aside. 6. I am of the opinion that the applicant can pay a fraction of the decretal sum as the matter proceeds on the substantive appeal. 7. I am of the that ¼ of the decretal sum would be adequate for now. 8. After analyzing the application and the response, I find that the following prayers ought to issue: 9. **Leave is granted to file appeal out of time,** 10. **The applicant to file and serve the Memorandum of Appeal within the next 14 days.** 11. **There will be a stay of execution of the decree of the lower court pending the filing, hearing and determination of the intended appeal on condition that the applicant pay a sum of Kshs.1,000,000/= which is approximately ¼ of the decretal sum to the respondent within the next 45 days.** 12. **In default of (b) an (c) above, the stay orders shall lapse automatically.** 13. **Costs shall abide by the outcome of the intended appeal.** 14. Orders accordingly. **Dated, signed and delivered at Meru this 29th day of July 2026.** **H. M. NYAGA** **JUDGE**