https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12162

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MACHAKOS HIGH COURT MISCELENEOUS CASE NO E366/2025 DAVID MBAI KIWA Vs EMMANUEL MWARIGHA RULING Before the Court is the notice of motion dated 24th November 2025. The same has been brought under section 1A, 3A, 79g of the Civil Procedure Act, order 42 rule 6(2), order 51 rule 1 of the Civil Procedure Rules 2010, Article 50 of the Constitution and all other enabling provisions of the law. The prayers sought are: 1. Spent 2. That the applicant be granted leave by the Honorable Court to appeal out of time against the judgement in Mavoko CMCC E081 of 2024. 3. That pending the hearing and determination of this application this Honorable Court be pleased to order a stay of execution of the judgement issued in the above case. 4. That cost of this application be in the cause. The grounds upon which the application is based are that judgement was delivered on 2nd October 2025 in the above case and the respondent may commence execution proceedings against the appellant in realization of the terms of the decree. The applicant is aggrieved by the court's decision to find him 100% liable in favor of the respondent. The time to file an appeal has since lapsed. In the supporting affidavit, which was sworn by Timbwa Grace who is the applicant's advocate, it was stated that the appellant wishes to appeal particularly on the finding on liability. That the delay in filing the appeal was neither deliberate nor through any fault on the part of the appellant but arose solely from internal administrative lapses. She also stated that the respondent is a person of unknown means and the appellant /applicant will it be prejudiced if the decretal sum is paid out then the appeal if successful, would be rendered academic in nature. The respondent filed a replying affidavit sworn on 7th April 2026 wherein he indicated that he had no objection to the prayers sought but that if the application is allowed then the applicant should be ordered to deposit the decretal amount in a joint interest bank account in the names of both counsels. The respondent filed submissions dated 18th March 2026. They indicated the issues for determination to be: 1. Whether the applicant should be granted a stay with execution 2. Whether the applicant should be granted leave to file an appeal out of time. On the issue of stay of the execution, they submitted that the legal principles upon which an application for stay of execution can be granted are set out under order 42 rule 6 of the Civil Procedure Rules. A party must satisfy the following conditions in order to be granted a stay of execution: 1. Application must be made without undue delay; 2. The applicant must demonstrate that they will suffer substantially unless the orders sought are granted; 3. Such security as the court orders for the due performance of such decree or orders as may ultimately be binding on him has been given by the applicant. They submitted that judgement in the primary suit was entered on 2nd October 2025 and the application here was filed on 24th November 2025 around one and a half months after judgement was issued. The delay therefore was not inordinate nor deliberate and was caused by an administrative lapse and that upon discovery of the lapse, the applicant promptly filed this present application without further delay. On whether the applicant will suffer substantial loss if the orders sought are not granted, they indicated that the applicant is ready and willing to issue a bank guarantee for the entire decree sum as a condition for stay of execution. They stated that the respondent is a person of unknown means and if the decretal amount is paid, the intended appeal will be rendered nugatory. The submitted that sufficient reason has been shown that warrants the applicant being granted leave to appeal out of time as there is an explanation for the delay and they have a meritorious appeal that deserves a day in court. The respondent indicated that they will not file submissions. From the respondent’s replying affidavit it was indicated that the respondent does not object to the application except that the applicants be ordered to deposit the decretal sum in a joint interest earning account in the names of both the advocates on record. The applicant had indicated that the delay in filing the appeal timeously or beyond his control as was caused by administrative issues on the part of their advocates. After considering the application, the affidavits on record and submissions by the applicant, I find that the application has merit. Consequently, I make the orders below: 1. The applicant is hereby granted leave to file an appeal out of time. 2. The applicant to file and serve the notice of appeal and memorandum of appeal within the next 21 days from the date of the delivery of this ruling. 3. The respondent to file and serve its response to the appeal within the statutory timelines upon being served. 4. No order as to costs. It is so ordered. READ IN OPEN COURT THIS 2ND JULY 2026 IN THE PRESENCE OF: NO APPEARANCE BY EITHER PARTY BEFORE HON JUSTICE JOYCE GANDANI JUDGE