https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8025

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MACHAKOS MISCELLEANOUS APPLICATION NO.E218 OF 2025 MAKINDU MOTORS LIMITED….…............…..APPELLANT/APPLICANT VERSUS DAVID MUSILI MZUKI……..……………………........…1ST RESPONDENT PREMIER TRADING COMPANY LIMITED ..…......……2ND RESPONDENT **RULING** **The applications** 1. This ruling is on the Applicant’s two applications dated 3rd July, 2025 and 30th July, 2025 respectively seeking leave to file Memorandum of Appeal out of time and stay of execution of judgment delivered on 11th April, 2025. Both applications are supported by affidavits sworn by **Felix Muthoka Musili**, a Manager at the Applicant’s Company. **Applicant’s case** 1. The Applicant avers that Judgement in the Mavoko Magistrates Court Civil Case No. E812 of 2022 was delivered on the 11th April, 2025 in favour of the 1st Respondent as against the Applicant herein.The Applicant being dissatisfied with the decision of the lower court wishes to challenge the same but the statutory timeline to file its Memorandum of Appeal has since lapsed thus the need to seek this Court’s indulgence for extension of the same.Pursuant to the aforesaid Judgment, the Applicant herein was granted ownership of Motorcycle Reg. No.KMCG 148P SKYGOdespite having sold it to its current owner, the 2nd Respondent herein hence the Applicant wishes to indulge the court and disallow this miscarriage of justice. 2. That the failure by the Applicant to file its appeal on time which seeks to raise weighty issues on the aforesaid Judgment was not advertent and the applicant seeks this Court’s indulgence to grant leave to appeal out of time.Thefailure to appeal on time was due to the procedural operations of the Applicant being a Company to instruct the Firm of Mukami Njeru & Associates to take up the conduct of the matter at the appeal level as a Board Resolution is a prerequisite in such decision making. 3. That since the delivery of the aforesaid Judgment, not much time has lapsed before the promptly filed this application demonstrating its intention to seek Justice in respect to the issues raised in its Memorandum of Appeal.The Applicant now wishes to raise triable issues as indicated in its draft Memorandum of Appeal which ought to be determined on merit as the 1st Respondent herein is on the verge of executing the decree against the Appellant.Unless an Order of Stay of Execution is issued, the subject Appeal shall be rendered nugatory and the Applicant herein will continue to suffer as the 1st Respondent wishes to attach and sale its properties on a faulty basis. 4. That the Applicant herein stands to suffer unmitigated prejudice and loss if the Judgment delivered by the Honourable Magistrate’s Court stands and it is not afforded a day in Court. 5. The Applicant further avers that no prejudice whatsoever shall be occasioned and/or visited upon the Respondents if orders sought herein are granted save that all the issues between the parties shall be laid before court for determination once and for all. 6. The applications are opposed by the Respondents. **1st Respondent’s case** 1. The 1st Respondent **David Musili Nzuki** filed a replying affidavit sworn on 11th September 2025 in which he depones that judgment in this suit was delivered in his favour on the I1th day of April, 2025 by the trial court and that the said judgment ought not to be disturbed since it was delivered in a procedural and substantive manner. The Applicant has not given sufficient reasons as to why it took them a whole two and a half months after judgment was entered before filing an appeal. That the Applicant has not discharged the conditions imposed under Order 22 Rule 22 to wit; 1. *It has not been demonstrated in the affidavit what or how substantial loss will result to the Applicant.* 2. *No sufficient cause for the stay has been demonstrated.* 3. *No security has been provided for grant of stay orders.* 9. That the Applicant's application is a constructed mode of delaying and denying the 1st Respondent from enjoying the fruits of his judgment and that should the Court be inclined to grant the orders, the Applicant should be ordered to pay the 1st Respondent two thirds of the decretal sum being Kshs.697,863.33/= and the remaining third being Kshs.348,931.67/= deposited in a joint interest earning account in the name of both advocates on record. The 1st Respondent invites this e Court to dismiss the Applicants applications as they lack merit. **2nd Respondent’s case** 1. The 2nd Respondent vide the replying affidavit sworn on 25th August 2025 by its director Paresh Shah vehemently oppose the application for the reasons that the claim in Mavoko CMCC No. E812 of 2024 arose from a road accident on 19th July 2022 where the rider of motorcycle registration No. KMCG 148P SKYGO negligently and at high speed hit the 1st Respondent who was standing at the Mlolongo Bus Stop waiting to board a matatu. The 3rd Party was later joined in the proceedings by the Applicant on allegations that the said motorcycle had been sold to the 2nd Respondent these allegations are false. That although the 2nd Respondent has had general business dealings with the Applicant, they have never transacted in respect of the said motorcycle. 2. That after being enjoined in the suit, the 2nd Respondent issued a written demand for proof of the alleged sale which was never furnished. The trial court noted the Appellant failed to produce any sale agreement or proof of consideration. The Appellant and their counsel were present at all proceedings including delivery of judgment and have not shown any legal or practical impediment to filing an appeal in time. The excuse that the appeal was delayed because of time taken to secure company resolutions and instruct advocates is neither reasonable nor excusable as corporate litigants are also expected to act within the statutory timelines. 3. The 2nd Respondent states that the Applicant has not demonstrated any substantial loss that may arise if stay is not granted as required by law. Mere dissatisfaction with judgement is insufficient. That the Applicant has also failed to offer security for due performance of the decree a mandatory requirement for grant of stay. The refusal to offer security therefore signals vexatious intent to delay execution and deprive the 1st Respondent of judgment benefits. The 2nd Respondent further states that the applications are a deliberate delay tactic to deny the 1st Respondent enjoyment of a lawful judgment while needlessly involving the2nd Respondent who has been fully exonerated. 1. That the intended appeal lacks arguable merit on facts or law. No irreparable harm to the Applicant has been shown since execution is a lawful consequence of the judgment. Extension of time to appeal is an equitable remedy which cannot be granted to a litigant who fails to act with promptitude. Permitting the applications would prejudice the 1st Respondent's right to enjoy the fruits of judgment and impose needless appellate proceedings on the 2nd Respondent. 2. Lastly the 2nd Respondent states that the applications are frivolous vexatious and an abuse of court process and ought to be dismissed with costs to the 2nd Respondent. 3. The applications were directed to be heard together through written submissions. All the parties filed their respective submissions. Those submissions replicate the summary above and I wish not to duplicate the same here. **Analysis and determination** 1. I have considered the Applicant’s applications, the supporting affidavits, the replying affidavits and the rival submissions filed by the Parties’ counsel as well as the judicial decisions relied upon. In my view, the issues for determination are as follows:- 2. *Whether the court should exercise its discretion to grant the applicant leave to file their appeal out of time;* 3. *Whether the applicant has met the prerequisite for grant of stay of execution pending appeal;* a. **Whether the court should exercise its discretion to grant the applicant leave to file his appeal out of time;** 17. Section 79G of the Civil Procedure Act states: - *“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 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. It is clear from the wording of Section 79G of the Civil Procedure Act that before the court considers extension of time, the applicants must satisfy the court that that they have good and sufficient cause for filing the appeal out of time. This principle was enunciated in the case of **Diplack Kenya Limited vs William Muthama Kitonyi [2018] eKLR** thatan applicant seeking enlargement of time to file an appeal or admission of an already filed appeal must show that he has a good cause for doing so. 1. The Supreme Court in the case of **Nicholas Kiptoo Korir arap Salat vs IEBC and 7 Others [2014] eKLR** enunciated the principles applicable in an application for leave to appeal out of time. The court stated inter alia that:- *“The underlying principles a court should consider in exercise of such discretion should include:-* *a. Extension of time is not a right of any party. It is an equitable remedy that is only available to a deserving party at the discretion of the court;* *b. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;* *c. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case by case basis;* *d. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;* *e. Whether there will be any prejudice suffered by the respondent if the extension is granted;* *f. Whether the application has been brought without undue delay.* 19. Similarly in the case of **Paul Musili Wambua vs Attorney General & 2 Others [2015] eKLR,** the Court of Appeal in considering an application for extension of time and leave to file the Notice of Appeal out of time stated the following:- *“…….it is now settled by a long line of authorities by this court that the decision of whether or not to extend the time for filing an appeal the Judge exercises unfettered discretion. However, in the exercise of such discretion, the court must act upon reason(s) not based on whim or caprice. In general, the matters which a court takes into account in deciding whether or not to grant an extension of time are; the length of delay, the reason for the delay, the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the application is granted.”* 1. Applying the above principles to the present case, the judgment herein was delivered on **11th April 2025** and the appeal ought to have been filed by **11th May 2025**. The Applicant filed the application dated **3rd July 2025** to which it annexed a Draft Memorandum of Appeal under paragraph 9 of the supporting affidavit. The said application seeks for stay of execution of the judgement delivered on **11th April 2025** and for the Applicant to be granted leave to file the Memorandum of Appeal out of time. Similarly, the application dated **30th July 2025** seeks for Stay of Execution of the Judgment and Decree delivered on 11th April, 2025 by Hon. Martha A. Nanzushi (SPM) pending the hearing and final determination of the Applicant’s Application dated 3rd July, 2025. 2. Clearly, the application dated **3rd July 2025** was filed almost two months after judgment and after the lapse of the appeal window. The Applicant has attributed the delay in filing its appeal to the procedural operations of the Applicant being a Company to instruct the Firm of Mukami Njeru & Associates to take up the conduct of the matter at the appeal level as a Board Resolution is a prerequisite in such decision making. 3. It is my position that nothing stopped the Applicant from allowing his Advocates file a Memorandum of Appeal within the stipulated 30 days and if need be, upon the issuing of further instructions, apply to make amendments to it if necessary. 4. Although I consider the two months delay not to be inordinate delay, I find the reasons for the delay not to have been satisfactorily explained to the court as required by the law. In my view, the Applicant has not given any plausible reasons for the delay in filing the appeal. 5. I have perused the intended Memorandum of Appeal and the judgment of the trial court and noted that the appeal faults the trial court on both liability and assessment of damages. As such, the appeal cannot be said to be without merit although at this juncture, I will restrain from delving into the merits of the appeal. It is my view that the Applicant ought to be given a chance to file his appeal out of time and prosecute it on merits. **b. Whether the applicant has met the prerequisite for grant of stay of execution pending appeal;** 25. It is trite law that an appeal does not operate as an automatic stay of execution. The conditions which a party must establish in order for the court to order stay of execution are provided for under Order 42 Rule 6(2) Civil Procedure Rules. Order 42 Rule 6 of the Civil Procedure Rules stipulates:- *1.“No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but the court appealed from may for sufficient cause order stay of execution of such decree or order and whether the application for such stay shall have been granted or refused by the court appealed from the court to which such appeal is preferred shall be at liberty on application being made to consider such application and to make such order thereon as may to it seem just and any person aggrieved by an order of stay made by the court from whose decision the Appeal is preferred may apply to the appellate court to have such orders set aside.* *2. No order for stay of execution shall be made under sub rule 1 unless:-* *a. The Court is satisfied that substantial loss may result to the 1st Applicant unless the order is made and that the application has been made without unreasonable delay; and* *b. Such security as the Court orders for the due performance of such* *decree or order as may ultimately be binding on him has been given by the Applicant.* 26. Thus, under Order 42 Rule 6(2) of the Civil Procedure Rules, an applicant should satisfy the court that: ***1. Substantial loss may result to him/her unless the order is made;*** ***2. That the application has been made without unreasonable delay; and*** ***3. The applicant has given such security as the court orders for the due performance of such decree or order as may ultimately be binding on him.*** 27. Substantial loss was clearly explained in the case of **James Wangalwa & Another vs Agnes Naliaka Cheseto [2012] eKLR**:- *“No doubt in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process. The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the applicant as the successful party in the appeal…the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory”* 28. The Applicant contends that it is apprehensive that the 1st Respondent will proceed with the execution of the said judgment if stay of execution of judgment is not granted. This will occasion irreparable damage and detriment to the Applicant as they consider their appeal to be a meritable appeal with high likelihood of success the outcome of which will be nugatory if determined way after execution has been undertaken. 29. It is trite law that execution is a lawful process and it is not a ground for granting stay of execution. The Applicants are required to show the manner in which execution will irreparably affect them or will alter the status quo to their detriment therefore rendering the appeal nugatory. The Applicant has failed to demonstrate substantial loss in my considered view. 30. On whether the application has been made without unreasonable delay. As already observed the delay was for almost two months, this period is not inordinate and excusable, the Applicant deserves to be heard on its appeal. 31. On the issue of security for costs, the purpose of security was explained in the case of **Arun C. Sharma vs Ashana Raikundalia t/a Raikundalia & Co. Advocates & 2 Others [2014] eKLR** the court stated:- *“The purpose of the security needed under Order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the applicant. It is not to punish the judgment debtor…..Civil process is quite different because in civil process the judgment is like a debt hence the applicants become and are judgment debtors in relation to the respondent. That is why any security given under Order 42 Rule 6 of the Civil Procedure Rules acts as security for the due performance of such decree or order as may ultimately be binding on the applicants. I presume the security must be one which can serve that purpose*. 32. Evidently, the issue of security is discretionary and it is upon the court to determine it and set its terms. The Applicant is silent on the issue of security for due performance of the decree and has not furnished any security in that regard. 33. It is imperative that the right of appeal must be balanced against an equally weighty rigid right of the plaintiff/claimant to enjoy the fruits of the judgment delivered in his/her favour. In the case of **Samvir Trustee Limited vs Guardian Bank Limited [2007] eKLR** the court stated:- *“The Court in considering whether to grant or refuse an application for stay is empowered to see whether there exist any special circumstances which can sway the discretion of the court in a particular manner. But the yardstick is for the court to balance or weigh the scales of justice by ensuring that an appeal is not rendered nugatory while at the same time ensuring that a successful party is not impeded from the enjoyment of the fruits of his judgment. It is a fundamental factor to bear in mind that a successful party is prima facie entitled to fruits of his judgment; hence the consequence of a judgment is that it has defined the rights of a party with definitive conclusion.”* 34. Consequently, I do find that the Applicant is entitled to pursue its appeal on merit. I do allow the Applicant’s applications dated 3rd July, 2025 and 30th July, 2025 and make the following orders:- **1. Leave is granted to the Applicant to file appeal out of time against the judgment delivered on the 11th April, 2025 in Mavoko Magistrates Court Civil Case No. E812 of 2022.** 1. **The Applicant shall file and serve its Memorandum of Appeal as per the attached draft within Seven (7) days hereof and thereafter to compile, file and serve the Record of Appeal within Forty-Five (45) days of this ruling in default, appropriate directions shall be given on the matter including dismissal of the appeal.** 2. **Execution of the Judgment/decree in Mavoko Magistrates Court Civil Case No. E812 of 2022 is hereby stayed pending the hearing and determination of the appeal on condition that the Appellant/Applicant shall deposit the entire decretal amount into court OR into a joint interest earning Bank account to be opened in a reputable Bank in the names of the Advocates’ for the Applicant and the 1st Respondent within forty-five(45) days hereof in default the 1st Respondent will be at liberty to execute.** **4. Costs shall be in the appeal.** 1. **A mention date to be fixed to confirm compliance with order 2, 3 and 4 above and for further directions.** **6. This Miscellaneous file will be closed on the next mention date.** It is hereby so ordered. RULING DATED & SIGNED AT MACHAKOS THIS 4TH JUNE 2026 **NOEL ADAGI** **JUDGE** DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 4TH JUNE 2026 In the presence of:- Ms. Muriithi hb for Mokami for Appellant Ms. Miya hb for Obwoge for 1st Respondent Ms. Karanja hb for Munguti for 2nd Respondent Milly Grace – Court Assistant