https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10892

Lords Promise Church v Njogu & 2 others (Suing as the Legal Representatives of the Estate of the Late Simon Muriuki Njogu) & another (Miscellaneous Application E176 of 2024) [2026] KEHC 10892 (KLR) (17 July 2026) (Ruling) Neutral citation: [2026] KEHC 10892 (KLR) Republic of Kenya In the High Court at Malindi Miscellaneous Application E176 of 2024 M Thande, J July 17, 2026 Between Lords Promise Church Applicant and Eunice Wagithi Njogu, Michael Munene Njogu & Peter Zakayo (suing as the Legal Representatives of the Estate of the Late Simon Muriuki Njogu) 1st Respondent Felix Kithome 2nd Respondent Ruling 1.In an application dated 15.11.24, the Applicant seeks leave to appeal out of time against the judgment delivered on 30.9.22 in Mariakani Kilifi SPMCC No. 165 of 2019 in favour of the 1st Respondent against the Applicant and the 2nd Respondent. The Applicant also seeks stay of execution of the said judgment pending the hearing and determination of the Application. 2.The grounds upon which the Application is premised are that the Applicant did not participate in the trial proceedings. Its application dated 31.5.23 seeking the setting aside of the judgment on grounds of lack of proper service was dismissed in a ruling dated 27.7.23. The Applicant’s appeal against the said ruling was also dismissed vide a judgment dated 19.7.24. 3.The Applicant acknowledges the delay in filing the appeal but states that the same is not unreasonable. It was stated that it has now obtained the certified copies of the proceedings and is ready to file the appeal within a short time. The Applicant stated that the trial court allowed the 1st Respondent’s application dated 11.11.24 for attachment of its assets and execution is imminent. 4.The Applicant further stated that if the orders sought are not granted, its stands to suffer substantial and irreparable loss as its assets which are its only source of income for its daily livelihood and preaching the gospel will be attached and sold; that if this happens the assets will not be recoverable if the appeal succeeds; that the 1st Respondent will not suffer any loss or prejudice if the orders sought are granted as they will have the fruits of their judgment if the appeal does not succeed and any further delay may be compensated by way of costs. Further, that the Applicant is willing to provide security for the decretal sum if ordered so to do. 5.The Application is opposed by the 1st Respondent vide a replying affidavit sworn on 25.11.24 by Michael Munene Njogu. He stated that the Applicant filed an application dated 16.8.23 in this Court for stay of execution of the judgment in Civil Appeal No. 141B of 2023 pending hearing and determination of the appeal. The application was allowed in a ruling dated 27.10.23 on terms that the decretal sum be deposited in Court by 17.11.23; that the Applicant did not comply and the stay orders lapsed; that the prayer for stay of execution in the present Application is res judicata. 6.As regards the prayer for leave to file appeal out of time, the 1st Respondent stated that no reasonable explanation has been given for the inordinate delay; that instead of filing an appeal, the Applicant filed an application to set aside the judgment; that after its appeal was dismissed on 19.7.24, the Applicant went to slumber and was only awakened by the renewed warrants of execution; that the 1st Respondent stands to suffer great prejudice if the orders sought are granted as they have waited for 6 years since 30.9.22 while the Applicant has been filing all manner of applications. The 1st respondent urged that the Application be dismissed with costs. 7.The statutory period for filing an appeal in this Court from a subordinate Court is 30 days. This is stipulated in Section 79G of the Civil Procedure Act which provides: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. 8.The proviso to Section 79G of the Act allows a party who gets caught up and is unable to file an appeal within the stipulated period, to seek extension of time. Such party must however satisfy the Court that there is good and sufficient reason for not filing the appeal on time. 9.An order for extension of the time to file an appeal is discretionary. It is an equitable remedy and not a right of a party. In the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR, the Supreme Court listed the following as the under-lying principles that a Court should consider in exercise of its discretion in an application for extension of time: 1.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; 2.A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court 3.Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis; 4.Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court; 5.Whether there will be any prejudice suffered by the respondents if the extension is granted; 6.Whether the application has been brought without undue delay; and 7.Whether in certain cases, like election petitions, public interest should be a consideration for extending time. 10.The judgment in respect of which the Applicant seeks to appeal was delivered on 30.9.22. By dint of Section 79G of the Civil Procedure Act, the appeal ought to have been filed by 30.10.22. The present Application was filed on 15.11.24, a period of over 2 years. 11.Applying the principles set out in the Nicholas Kiptoo Arap Korir Salat case (supra), the Court finds that the delay of 2 years is inordinate. 12.The reason given by the Applicant for the delay is that it pursued the option of having the judgment set aside, but that its application was dismissed on 27.7.23. 13.The Court notes that the Applicant filed an appeal on 15.8.23, not against the judgment but against the ruling dismissing its application to set aside the judgment. All this time, the period within which to file appeal was running. Judgment on the appeal was delivered on 19.7.24. Even if the Court were to accept that the delay was occasioned by the Applicant seeking to have the judgment set aside, which it does not, the Applicant has not explained the delay between 19.7.24 when judgment on its appeal was delivered and 15.11.24 when it filed the instant Application. 14.After considering the foregoing, the only conclusion that can be drawn is that the Applicant went into slumber and was clearly awoken by the 1st Respondent’s application dated 11.11.24 to attach its assets. I accordingly find that the Applicant is undeserving of the equitable relief sought as equity aids the diligent and not the indolent. Further, granting the orders sought would greatly prejudice the 1st Respondent who are yet to enjoy the fruits of their judgment that was delivered on 30.9.22. 15.In light of this, the Court will not exercise discretion in the Applicant’s favour and declines to grant the prayer for leave to appeal out of time. Having so declined, it follows that the prayer for stay of execution of the judgment must also fail. 16.I accordingly dismiss the Application dated 15.11.24 with costs to the 1st Respondent. DATED, SIGNED AND DELIVERED IN MALINDI THIS 17TH DAY OF JULY 2026...............M. THANDEJUDGE