https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10192

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT ELDORET** **HCCOMMA NO. E002 OF 2026** **CHARLES SHIBWECHE MAKANGA……………………………….……..APPELLANT** **VERSUS** **MWANANCHI CREDIT LIMITED………………………………………..RESPONDENT** **Coram: Before Justice R. Nyakundi** **M/S Mogire Nyamwaya & Co. Advocates** **M/S Andere-Otieno & Co. Advocates** **RULING** 1. Before this court is an application dated 20th day of January 2026 seeking the following orders: 2. *Spent.* 3. *THAT a temporary injunction do issue restraining the respondent, its agents GARAM INVESTMENTS AUCTIONEERS from selling auctioning disposing and interfering in whatever manner with UASINGISHU/ILLULA SETTLEMENT SCHEME/1404 pending the hearing and determination of this application.* 4. *THAT a temporary injunction do issue restraining the respondent, its agents GARAM INVESTMENTS AUCTIONEERS from selling auctioning disposing and interfering in whatever manner with UASINGISHU/ILLULA SETTLEMENT SCHEME/1404 pending the hearing and determination of this appeal.* 5. *THAT the costs of this application be provided for* 6. The application is made on the following grounds: 7. *The Applicant has lodged a memorandum of appeal against the ruling of the trial court delivered on 1st January 2025 and applied for certified proceedings for appeal purposes.* 8. *The intended appeal is arguable.* 9. *GARAM INVESTMENTS AUCTIONEERS have already issued notice for auction slated on 23.1.2026.* 10. *The intended appeal will be rendered nugatory.* 11. In support of the application is the supporting affidavit sworn by the Applicant who deponed as follows: 12. *THAT I am a male adult individual of sound mind and the appellant/Applicant hereto fully conversant with this matter and thus competent to swear this affidavit.* 13. *THAT I am the plaintiff in ELDORET CMCC NO. E453 OF 2025; CHARLES SHIBWECHE MAKANGA - VERSUS- MWANANCHI CREDIT LIMITED* 14. *That Respondents auctioneers Garam Investments Auctioneer intend to sale the suit land by way of auction on 23.1.2026* 15. *THAT I filed a notice of motion application dated 7th February 2025 seeking for the following orders:* 16. *THAT This application be certified urgent and heard ex parte at the first instance.* 17. *Pending the hearing and determination of this application, the defendant/ respondent be compelled to make discovery on oath and deliver to the plaintiff/Applicant, Loan letter of offer, the Charge document, Loan Schedule, Loan account statement, Repayment Schedule and copies of all documents relating to the matter in issue.* 18. *Pending the hearing and determination of main suit, the defendant/ respondent be compelled to make discovery on oath and deliver to the plaintiff/Applicant, Loan offer letter, the Charge document, Loan Schedule, Loan account statement, Repayment Schedule and copies of all documents relating to the matter in issue.* 19. *THAT a temporary injunction do issue restraining the respondent, its agents servant and/ or worker from selling auctioning disposing and interfering in whatever manner with UASIN GISHU/ILLULA SETTLEMENT SCHEME/1404 pending the hearing and determination of this application.* 20. *THAT a temporary injunction do issues restraining the respondent, its agents, servants and/or workers from auctioning disposing and interfering in whatsoever manner with UASIN GISHU/ILLULA SETTLEMENT SCHEME/1404 pending the hearing of this suit.* 21. *THAT the costs of this Applicant be provided for* 22. *THAT in response to the said application, the respondent filed a replying affidavit dated 21st March 2025* 23. *THAT this honourable trial court directed parties to file written submissions to the said application which submission were duly filed by me and the respondent.* 24. *THAT the honourable trial court delivered a ruling on 1st December 2025 on my said application and dismissed the same together with costs* 25. *THAT being aggrieved by the said ruling and/or decision made by the honourable trial court, I instructed my advocates to lodge an appeal to this court challenging the said decision which appeal has already been lodged vide this cause and I also applied for typed and certified proceedings and I wish to be heard on the appeal hereto.* 26. *THAT I am advised by my advocates on record which advice I verily believe to be correct that this instant appeal raises very serious and weighty legal issues for determination hence the need to grant the orders sought.* 27. *THAT the appeal hereto raises substantial issues and thus constitutes sufficient cause for the issuance of an injunction pending appeal.* 28. *THAT the appeal to hereto raises triable issues with overwhelming chances of success based on the following grounds:* 29. *THAT the learned magistrate erred in law and fact in completely misapprehending the principles governing injunction applications thereby arriving at an erroneous decision of dismissing plaintiff's notice of motion dated 7th February 2025 in ELDOORET MCCC/E453OF 2025.* 30. *THAT the learned magistrate erred in law and in fact in failing to find that the appellant stood to suffer irreparable loss if injunction was not granted in favour of the appellant.* 31. *THAT the learned magistrate erred in law and in fact in failing to find that the appellant had established prima facie case to warrant grant of injunction orders.* 32. *THAT the learned magistrate erred in law and in fact in failing to appreciate that the value of the property as at the time of application of the loan facility was above Kshs. Ten Million(Kshs.10,000,000/=)vis a vis the arrears of Kshs. Three Million Eight Hundred and Twenty Four Thousand Six Hundred and sixteen (Kshs.3,824,616)* 33. *THAT the learned magistrate erred in law and in fact by failing to acknowledge that the principal sum of Kshs. Two Million (Kshs.2,000,000/=) had already been paid and the amount in arrears is the interest.* 34. *THAT the learned magistrate erred in law and in fact by not considering the appellants statement that parties had agreed to a one off payment to close the loan facility which the appellant paid.* 35. *THAT the learned magistrate erred in law and in fact that the appellant had on various occasions wanted negotiation so as to resolve the matter.* 36. *THAT the learned magistrate erred in law and in fact in stating that “the suit property can be compensated by an award of damages, in the event that this matter is resolved in favour of the plaintiff against the defendant/Respondent."* 37. *THAT the learned magistrate erred in law and in fact in holding that the loss the Respondent is likely to suffer if the notice of motion application dated 7th February 2025 is allowed outweighs the loss the plaintiff is likely to suffer if the application is disallowed.* 38. *THAT the learned magistrate erred in law and fact in completely misapprehending the lay down principles governing allowing additional evidence thereby arriving at a wrong conclusion.* 39. *THAT the learned magistrate erred in law and fact in not considering that the appellant is not reluctant to pay but only disputes the amount having agreed to pay a one off to settle the loan.* 40. *THAT the learned magistrate erred in law and in fact in delivering a decision that led to an injudicious exercise of discretion.* 41. *THAT the learned magistrate erred in law and in fact in failing to appreciate that justice ought to be administered substantively without due regard to procedural technicalities.* 42. *THAT the learned magistrate erred in fact and law by failing to consider the affidavits, authorities and the written submissions made by the Appellant in support of his application dated 7th February2025.* 43. *THAT the learned Magistrate erred in fact and in law by dismissing the Appellant's application without considering the harm that would befall the Appellant.* 44. *THAT the learned magistrate erred in law and in fact in considering issues that were neither raised, neither pleaded nor submitted upon by the Respondents* 45. *That the learned magistrate erred in law and fact in predisposing his mind to a position favourable to the respondents against the Appellant and thereby arrived at a wrong decision.* 46. *THAT the learned magistrate erred in law and in fact in delivering a decision without addressing the facts and the issues and failing to give the ratio decidendi.* 47. *The learned trial magistrate failed to, generally, judicially apply and to adequately evaluate the evidence tendered and thereby arrived at a decision unsustainable in law.* 48. *THAT substantial loss will be visited upon me unless injunction is granted pending appeal as the respondent and or its agents GARAM INVESTMENTS AUCTIONEERS will proceed to auctioning disposing the suit land UASIN GISHU/ILLULA SETTLEMENT SCHEME/1404 while the ownership of the accrued amount is contested thereby subjecting me to irreparable loss and damage.* 49. *THAT I pray that the court considers this application as urgent and grant interim order of status quo that had been granted pending the determination of my application before the trial court the subject of the impugned decision which lapsed when it was dismissed with costs* 50. *THAT I am willing to comply with such terms as to the giving of security as shall be ultimately binding.* 51. *THAT unless the court grants relief sought, my appeal to this honourable court will be rendered academic and nugatory thus the need for this honourable court to grant the application herein.* 52. *THAT the appeal will be rendered nugatory for the reasons:-* 53. *The issue of interest and accrued penalties is highly contested which can only be resolved through parties being given an opportunity to be heard first before the suit land is interfered with.* 54. *The respondent's agents GARAM INVESTMENTS AUCTIONEERS will proceed to auction and disposing the suit land UASINGISHU/ILLULA SETTLEMENT SCHEME/1404.* 55. *THAT this honourable court has jurisdiction to grant orders sought vide this instant application based on the decided cased of Erinford Properties Ltd vs. Chesire County Council (1974)2 All ER 274 and also confirmed in the decision in Equip Agencies Limited Vs I & M Bank Limited (2017) eKLR.* 56. *THAT this application is brought promptly and in the interest of justice.* 57. *THAT this honourable court has powers to grant the orders sought in order to prevent the ends of justice from being defeated.* 58. *THAT I urge this honourable court to allow the instant application herein as the same is merited and it is only fair, just expedient and in the interest of justice that the same be allowed.* 59. *THAT no prejudice will be suffered if the orders sought are granted.* 60. The application is opposed by both the Notice of preliminary objection dated 13th February 2026 and a replying affidavit of even date. 61. The Application dated 20th January 2026 and the Appeal offends the provisions of Section 79G of the Civil Procedure Act, Cap 21 Laws of Kenya. 62. The present Appeal has been filed out of time and without the Court's leave as such it is irregular and improper *ab initio*. 63. The Application and Appeal as drawn is fatally defective, bad in law, utterly incompetent, an extreme abuse of the process of this Court and the same ought to be dismissed with costs. 64. Replying Affidavit by Salah Jackline who avers as follows: 65. *That I am a female adult citizen of sound mind, the legal secretary of the Respondent Company duly authorized to swear this Affidavit on its behalf.* 66. *That I have read the Application dated 20th January 2026 by the Appellant understood the same and I swear this Affidavit opposing the same.* 67. *That from the onset we wish to state that the Appellant is not a party deserving of this Court's further indulgence as his actions only confirm that he only wishes to ride on this Court's interim orders endlessly just as he did before the trial Court.* 68. *That for record purposes, we wish to state that the present appeal is improperly before this Court as the same has been filed way out of time and without this Honourable Court's leave hence not deserving of the Court's audience if Section 79G of the Civil Procedure Act is anything to go by just as raised in the Preliminary Objection dated 13th February 2026.* 69. *That to demonstrate the Appellant's indolence and non-intention of settling the Respondent's debt, as a matter of record, as at the date and time of filing this Replying Affidavit in Court, the Appellant is yet to request for the Order he is appealing against and neither has he requested for the certified proceedings from the trial Court.* 70. *That the Appellant's decision to lodge the purported Appeal, albeit out of time and without this Court's leave, is purely impulsive and aimed at barring the Respondent from realizing its lawful security with no intention of repaying the debt owing to the latter and it is rather unfortunate that this Honourable Court granted him interim orders undeservedly.* 71. *That the Appellant's conduct confirms that he is not keen on settling what is lawfully owed to the Respondent but rather take it on an endless cycle with empty promises that he wishes to settle the debt owing to the Respondent.* 72. *That the Appellant is a dishonest litigant and in no way does he intend to repay the Respondent's monies as agreed. The Respondent's Replying Affidavit dated 21st March 2025 lays bare the conduct of the Appellant and it is the basis on which the trial Court saw through the Appellant's scheme and meritoriously dismissed his Application with costs.* 73. *That if indeed the Appellant was an honest litigant, he would have made the so-called proposals he keeps on making reference to prior to suing the Appellant which is after its lawful security. Notably and as demonstrated by "SJ1” above, the Respondent only opted to realize its security after the Appellant failed to redeem himself despite being offered several opportunities by the Respondent.* 74. *That further, during the pendency of the Application before the trial Court, the Appellant failed to make any payment towards the debt owed to the Respondent to demonstrate his so-called good faith.* 75. *That the truth of the matter is that the Appellant is only keen on hiding behind this Court's orders, just as he did with his Application of 7th February 2025, before the trial Court with no intention of settling the debt owed to the Respondent.* 76. *That if indeed the Appellant was keen on settling what is rightfully owed to the Respondent, as he has expressly admitted, why is this matter still in Court or better yet why is he on Appeal.* 77. *That the Appellant has not given this Honourable Court any reasonable ground why it should entertain his Application by granting him the reliefs sought yet he has clearly approached Court with unclean hands.* 78. *That I am well aware that the Appellant has come to Court seeking an equitable remedy with unclean hands as he is still indebted to the Respondent as indicated above and the Respondent shall claim for the outstanding amounts which continue to accrue and which shall be computed at the end of the appropriate time.* 79. *That without prejudice to the aforestated the Appellant should if at all he believes in his cause, be directed to deposit in Court the disputed amounts as per the loan statements or as this Honourable Court has the discretion to order for purposes of security for costs as the appeal proceeds.* 80. This application was canvassed by way of written submissions in which Learned Counsel for the Appellant relying on Order 42(6) Rule 2 of the Civil Procedure Rules and the principles in the seminal decisions; *Butt v Rent Restriction Tribunal [1979] KECA 22 (KLR), Mukuna v Abuoga [1988] KLR 645, James Wangalwa & Another vs Agnes Naliaka Cheseto [2012] KEHC 1094 (KLR) and Kenya Shell Limited v Benjamin Karuga Kabiru & Another [1986] KECA 94 (KLR)* in which he contended that if stay of execution is not granted the Applicant will suffer substantial loss which may not be quantifiable in monetary terms. 81. In a rejoinder to the application, the Learned Counsel for the Respondent canvassed issues to do with Section 79(g) on limitation of time for one to file an appeal which is set to be 30 days from the date of judgment. Therefore, the argument by the Respondent is that there is no substantive appeal to warrant grant of stay of execution pending appeal. **Decision** 1. An appeal is a creature of statute and a more appropriate order would be, not to dismiss the appeal but, to strike it out as incompetent, as the merits have not been gone into, and to leave it to the appellant to try and resurrect his appeal, if he can, by extracting a decree and then, if necessary, applying to appeal out of time. Alternatively, he may seek to set aside the judgment on the same ground that no decree was extracted. 2. In the instant application, the Appellant has not denied that he has complied with the provisions of Section 79(g). It is not even clear whether a decree embodying the terms of the impugned judgment has been drawn up to form part of the memorandum of appeal against the impugned judgment. Where the appeal has not been filed within the stipulated time, the notice of appeal should be struck out unless leave has been sought for one to be allowed to file an appeal out of time. In the case of *Samuel Ayeinda Mokua vs Tinga Trading Company Limited, Nairobi Civil Application No. 184 of 2007* in which it was observed that: *Whereas it is true that an application made under rule 4 of the Court of Appeal Rules is dependent on the exercise of the court's unfettered discretion, it should nevertheless, be exercised judicially or in other words sound reason rather than whim, caprice or sympathy. The objective of the court is really to do justice to both parties. In weighing the scales of justice the court considers, amongst others, the length of the delay, the explanation for it, whether or not the appeal is arguable, whether the grant of the application will prejudice the respondent, the public importance of the matter, if any, and generally the requirements of the interest of justice.[b]The principles to guide the court in applications of this nature are well settled and are that the decision whether or not to extend time for appealing is essentially discretionary. It is also well settled that in general, the matters which the court takes into account in deciding whether to grant an extension of time are first, the length of 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. See Leo Sila Mutiso v Rose Hellen Wangari Mwangi, Nairobi civil application number251 of 1997 [1999] 2 EA 231.[c]It is now well settled that wherever there is a delay, even for one day, there must be some explanation for it otherwise extension may not be granted. See Kenya Ports Authority v Silas Obengele, civil application number 297 of 2004; John Francis Muyodi v Busia County Council and others, Civil Application Number 345 of 2005; Reliance Bank Limited (In Liquidation v Grandways Ventures Limited and others and Southern Credit Bank Corporation, Nairobi Civil Application Number 118 of 2007.* 1. In an application for extension of time to file an appeal it is upon the Applicant to explain to the satisfaction of the Court that the discretion should be exercised in his favour. Factors to be taken into account enumerated: length of the delay, success of the appeal and prejudice to the respondent. Extension of time for filing a time-barred appeal falls under Section 79(g) of the Civil Procedure Act which allows the court to admit an appeal if the Appellant proves sufficient cause for the delay. The condonation cannot be claimed as a right and each day’s delay must be explained by the Appellant. From the reading of the application and the record the Appellant has failed to demonstrate any sufficient cause and there is no explanation as to why the appeal was not filed within the prescribed period of limitation. The context of the Civil Procedure Act seems to suggest that within such a period means within the period which ends with the last day of limitation prescribed in Section 79(g) of the Civil Procedure Act. In other words, in all cases falling under Section 79 as read with (g), what a litigant has to show is why he or she did not file an appeal on the last day of limitation prescribed by law. That inevitably means that the litigant will have to show sufficient cause not only for filing the appeal on the last day but also must explain the delay made thereafter day by day. It is not a blanket sufficient cause. In other words, in showing sufficient cause to persuade the court to condone the delay the litigant is called upon to explain the whole of the delay covered by the period between the last day prescribed for filing the appeal and the day that the appeal is ultimately filed. It must also be emphasized that even after sufficient cause has been shown a litigant or an intended Appellant is not entitled to condonation of delay in question as a matter of right. The proof of sufficient cause is a condition precedent for the exercise of judicial discretion which must be proved within the scope of Section 107, 108, 109 and 112 of the Evidence Act. 2. From a comparative perspective in the case of *Basawaraj & Anor v Special Land Acquisition Officer [2013] 14 SCC 81*, the Court made the following observations: *“9. Sufficient cause is the cause for which the defendant could not be blamed for his absence. The meaning of the word “sufficient” is “adequate” or “enough”, inasmuch as may be necessary to answer the purpose intended. Therefore, the word “sufficient” embraces no more than that which provides a platitude, which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case, duly examined from the viewpoint of a reasonable standard of a cautious man. In this context, “sufficient cause” means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has “not acted diligently” or “remained inactive”. However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously. The applicant must satisfy the court that he was prevented by any “sufficient cause” from prosecuting his case, and unless a satisfactory explanation is furnished, the court should not allow the application for condonation of delay. The court has to examine whether the mistake is bona fide or was merely a device to cover an ulterior purpose.* *11. The expression “sufficient cause” should be given a liberal interpretation to ensure that substantial justice is done, but only so long as negligence, inaction or lack of bona fides cannot be imputed to the party concerned, whether or not sufficient cause has been furnished, can be decided on the facts of a particular case and no straitjacket formula is possible.”* 1. It is pertinent from the facts of this case that sufficient cause has not been established for extension of time. The preliminary objection by the Respondent therefore succeeds and carries the day to have any proceedings laid before this Court to be struck out for them not being within the prescribed period of limitation to exercise his or her right of appeal. The costs of this application be in favour of the Respondent. **DATED, DELIVERED AND PUBLISHED VIA CTS AT ELDORET THIS 10TH DAY OF JULY 2026.** **………………………….……….** **R. NYAKUNDI** **JUDGE**