https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9595

Maingi alias Daniel Mwau Maingi & another v Maingi (Miscellaneous Civil Application E187 of 2024) [2026] KEHC 9595 (KLR) (25 June 2026) (Ruling) Neutral citation: [2026] KEHC 9595 (KLR) Republic of Kenya In the High Court at Machakos Miscellaneous Civil Application E187 of 2024 AN Ongeri, J June 25, 2026 Between Daniel Mwau Gideon Maingi alias Daniel Mwau Maingi 1st Applicant Miika Mbithe Maingi 2nd Applicant and Peter Nduva Maingi Respondent Ruling 1.The Applicant filed an application 3rd July 2024 seeking the following orders;i.That the application be certified urgent in the first instance(SPENT) andii.That an interim stay of execution be granted in the judgment delivered on 23rd May 2024, in which the trial court awarded the Respondent (the original Plaintiff) general damages of Kshs. 1,500,000, reduced earning capacity of Kshs. 100,000, future medical expenses of Kshs. 80,000, and special damages of Kshs. 48,435 2.The application is brought under Order 42 Rule 6, which governs applications for stay of execution pending appeal, as well as Order 50 Rule 1 and Section 79G of the Civil Procedure Act (Cap. 21), which address extensions of time and appeals out of time. 3.The application is based on the grounds that the Applicants’ advocate encountered technical problems with their official Yahoo email account between 7th June 2024 and 1st July 2024, which caused the client’s email instructions to appeal, sent on 7th June 2024 (well within the statutory appeal period), to be hidden and only discovered after the email issue was resolved on 1st July 2024. 4.Consequently, the time for filing the appeal had lapsed, and the Applicants now face imminent execution of the decree without any existing stay. 5.The application is supported by the affidavit, sworn by Kinyanjui Theuri, an advocate for the Applicants. 6.It is deposed in the supporting affidavit that the failure to appeal within time was inadvertent and solely due to the email challenges, which were fixed only on 1st July 2024, after which the hidden instructions appeared. 7.The affidavit further states that the Applicants had always been desirous of appealing, as evidenced by the instructions sent before the appeal period expired. 8.It states that there is no stay of execution in place, and the Applicants face substantial loss and prejudice that cannot be compensated by costs because if execution is carried out. 9.Further, that they will have no reasonable prospect of recovering the sums paid should they succeed on appeal. 10.The affidavit asserts that the intended appeal is arguable with high chances of success. 11.Relying on a draft memorandum of appeal annexed to the affidavit, which raises grounds such as the trial magistrate’s error in finding the Appellants 100% liable, failure to consider evidence of contributory negligence, and awarding excessive general damages based on authorities involving more severe injuries. 12.The affidavit further confirms that the application has been made without unreasonable delay, and the Applicants are willing to furnish security for the judgment sum in the form of a bank guarantee from a reputable bank in Kenya as a condition for the stay. 13.It concludes that the Respondent will not suffer any prejudice that cannot be compensated by costs. 14.The Respondent filed a Replying affidavit in which he deposed as follows;i.That the application is solely meant to further delay the respondent’s enjoyment of the fruits of his judgment and should be dismissed with costs.ii.That the supporting affidavit was sworn by the applicants’ own advocate, Kinyanjui Theuri, which offends the rules of practice because an advocate should not swear an affidavit in a contentious matter.iii.That the advocate deponed to matters not within his personal knowledge, violating Order 19 Rule 3 of the Civil Procedure Rules, and therefore the supporting affidavit should be struck out.iv.That the application is fatally defective because it was served upon the respondent’s advocates without a case number and cannot stand on its own.v.That the judgment in the lower court (Kithimani PMCC 235 of 2018) was delivered on 23rd May 2024 in the presence of the applicants’ advocate, and a 30-day stay of execution was granted but has since lapsed.vi.That the applicants never filed an appeal within the prescribed 30 days, and the memorandum of appeal attached to their application is not filed.vii.That the applicants’ advocate, in a letter dated 4th June 2024, only disputed the costs awarded and did not indicate any intention to appeal.viii.From the time they allegedly received instructions to appeal, the applicants had nearly 19 days to file an appeal but chose not to do so.ix.The mistake of counsel is not an automatic excuse; parties have a responsibility to follow up on their cases and cannot simply blame their advocates.x.The application was filed on 3rd July 2024, which is 36 days after the stay of execution lapsed on 23rd June 2024, and the applicants have not satisfactorily explained this delay.xi.Because the delay in filing the appeal has not been explained, the application for leave to file an appeal out of time should be dismissed.xii.The applicants have failed to meet the threshold for grant of stay of execution under Order 42 Rule 6(2) of the Civil Procedure Rules.xiii.The applicants have also failed to satisfy the seven conditions for extension of time as set out in the Nicholas Salat case, including providing a reasonable explanation for delay and demonstrating no undue delay.xiv.The memorandum of appeal is inconsistent because the applicants only intended to appeal on general damages and diminished earning capacity in the supporting affidavit, but in the memorandum they have contested liability as well.xv.The applicants have not demonstrated substantial loss; the mere fact that the respondent’s financial capability is unknown does not create a presumption that he cannot repay the decretal sum.xvi.The applicants have not stated what specific substantial loss they will suffer if the stay is not granted, and it is not for the court to speculate.xvii.The respondent will be greatly prejudiced if the stay is granted because he has not yet recovered from severe injuries sustained in the accident and cannot walk without an aid or perform heavy duties.xviii.The applicants have come to court with unclean hands and bad faith, only rushing to court when execution became imminent, and they have offered no bank guarantee or security.xix.The principle of proportionality favours the respondent; it would be more unjust to stay execution when the applicants have given no concrete reason for appealing out of time. 15.The parties filed written submissions as follows; The applicants submitted that they are seeking a stay of execution of a judgment delivered by the Kithimani Magistrates Court on 23rd May 2024, as well as enlargement of time to file an appeal out of time and leave to file a memorandum of appeal. 16.The applicants explain that judgment was delivered against them on 23rd May 2024, and they gave instructions to their advocate to appeal on 7th June 2024, which was within the thirty-day period prescribed for filing an appeal. 17.Due to technical challenges with their advocate’s official Yahoo email address, which caused incoming email correspondences to be hidden, the instructions were not seen or acted upon until 1st July 2024, when the email issue was resolved. 18.Upon discovering the hidden emails, the applicants moved the court promptly, and they argue that the delay was not inordinate and that the mistake of counsel should not be visited upon them, citing Court of Appeal authority that an advocate may properly swear an affidavit explaining his own shortcomings, such as failing to diarise or missing email communications. 19.Regarding the objection that the supporting affidavit was sworn by the advocate rather than the applicants themselves, the applicants rely on the case of Ibrahim & another v Muhsin & another, where the Court of Appeal held that where the facts are within the advocate’s personal knowledge—such as the reason for delay—the advocate is the proper person to swear the affidavit. 20.On the issue of stay of execution, the applicants contend that unless a stay is granted, they will suffer substantial loss and their intended appeal will be rendered nugatory. 21.The applicants note that the respondent has not disputed that failure to grant a stay would occasion irreparable loss, and they rely on the principle that the court must balance the right of a successful litigant to enjoy the fruits of judgment against the need to ensure that an appeal, if successful, is not rendered academic. 22.The applicants further state that they are ready and willing to furnish a bank guarantee as security for the due performance of the decree, which they submit is reasonable and safe from wastage. 23.The applicants invoke the constitutional rights to access justice and a fair hearing under Articles 48 and 50(1) of the Constitution of Kenya, arguing that it would be unjust to execute the decree before their appeal is heard and determined. 24.In conclusion, the applicants pray that the court exercises its discretion in their favour by granting leave to appeal out of time, deeming the attached memorandum of appeal as duly filed, and staying execution of the lower court’s decree pending the hearing and determination of the intended appeal. 25.The respondents on his part submitted that the applicant's motion is fatally defective because it seeks an order to appeal out of time but fails to invoke Order 40 of the Civil Procedure Rules, which provides the legal basis for such an order. 26.Citing cases like Wilson Wokabi Magondu v. Josephine Gatheru Njanja, they contend that invoking the wrong provisions of the law renders an application a non-starter. 27.The respondents further argue that the supporting affidavit is incompetent because the deponent has stated matters not within his personal knowledge, which violates Order 19 Rule 3 of the Civil Procedure Rules. 28.They ask the court to strike out the supporting affidavit, relying on East African Foundry Works (K) Ltd v. Kenya Commercial Bank Ltd, and argue that without the affidavit, the application cannot stand on its own. 29.Regarding the application for a stay of execution, the respondents submit that the applicants have failed to meet the three conditions under Order 42 Rule 6. 30.First, they argue the application was made after an unreasonable delay of about 36 days following the judgment, with no satisfactory explanation provided for the delay. 31.Second, and most critically, the respondents assert that the applicants have completely failed to demonstrate that they will suffer substantial loss if the stay is not granted. 32.They explain that in a money decree, substantial loss requires proving that the respondent would be unable to refund the decretal sum if the appeal succeeds. 33.The respondents argue that the applicants have not provided any evidence to show that the respondent is a "man of straw" or lacks the means to repay. 34.Relying on authorities including Kenya Shell Limited v. Kariga, Lucy Nyamanu Kimani v. Lawrence Mburu Muthiga, and Socfinac Company Limited v. Nelphat Kimotho Muturi, they state that the burden of proving substantial loss rests squarely on the applicant and does not shift to the respondent to prove their financial capability. 35.Third, the respondents note that the applicants have failed to furnish any security for the due performance of the decree, as they have merely stated a willingness to deposit security without specifying what that security is. 36.On the application for extension of time to appeal, the respondents argue that the applicants are undeserving of this equitable remedy. 37.Applying the seven principles from Nicholas Kiptoo Arap Korir Salat v. IEBC, they contend that the delay has not been satisfactorily explained, as the reason of not having received client instructions is merely an internal administrative issue. 38.The respondents argue that the excuse that a mistake by an advocate should not be visited on the client no longer holds water, citing Rajesh Rughani v. Fifty Investments Limited and other cases. They contend that the applicants' conduct here reeks of laxity and a deliberate attempt to delay justice. 39.The respondents argue that granting the extension would gravely prejudice the respondent, who needs the decretal money for future medical expenses and cannot perform heavy work, meaning that costs alone would not adequately compensate him. 40.Finally, the respondents ask the court to balance the competing interests, noting that a successful litigant should not be deprived of the fruits of a judgment without just cause. 41.They point out that the application was only filed when execution became imminent, suggesting bad faith, and therefore pray that the entire application dated 3rd July 2024 be dismissed with costs, that the interim orders not be extended, and that the respondent be allowed to proceed with execution of the judgment. 42.The issues for determination in this appeal are as follows;i.Whether the supporting affidavit sworn by the Applicants' advocate is competent,ii.Whether the Applicants have established sufficient grounds for an extension of time to appeal, andiii.Whether they have met the statutory conditions for a stay of execution. 43.Regarding the competence of the affidavit, the court finds it proper. While the Respondent objects to an advocate swearing an affidavit in a contentious matter, an advocate is the proper deponent when the facts, such as internal office communication and technical email glitches, fall within their personal knowledge. 44.On the issue of extension of time, the court applies the principles established by the Supreme Court in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 others [2014] eKLR. 45.The delay of a few days outside the 30-day statutory limit was not inordinate and has been reasonably explained by a verified Yahoo email glitch that hid timely client instructions. 46.The mistake of counsel should not penalize an innocent litigant. The draft Memorandum of Appeal also demonstrates that the intended appeal is arguable regarding liability and quantum. 47.Concerning the stay of execution under Order 42, Rule 6(2) of the Civil Procedure Rules, the Applicants must prove that substantial loss will occur, move the court without unreasonable delay, and offer security. 48.While the burden of proving substantial loss rests on the applicant, the court must balance the Respondent's right to enjoy the fruits of judgment against the need to ensure the appeal is not rendered nugatory. 49.The Applicants' commitment to provide a bank guarantee adequately bridges this gap. 50.Accordingly, the application is allowed. The Applicants are granted leave to file their appeal out of time, and the draft Memorandum of Appeal is deemed duly filed subject to payment of court fees within 7 days. 51.A conditional stay of execution is granted on the terms that the Applicants deposit the full decretal sum of Kshs. 1,728,435 as a bank guarantee within 60 days of this date, failing which the stay lapses and execution to proceed. Costs are awarded to the Respondent. 52.Orders to issue accordingly. DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 25TH DAY OF JUNE, 2026.A. N. ONGERIJUDGEIn the presence of:No appearance for the ApplicantNo appearance for the RespondentChrispin – Court Assistant