https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12734

Masai v Bolpak Trading Company Ltd (Civil Appeal E225 of 2024) [2026] KEHC 12734 (KLR) (7 August 2026) (Ruling) Neutral citation: [2026] KEHC 12734 (KLR) Republic of Kenya In the High Court at Mombasa Civil Appeal E225 of 2024 J Ngaah, J August 7, 2026 Between Stella Chiku Masai Appellant and Bolpak Trading Company Limited Respondent Ruling Introduction 1.Before the Honourable Court is the appellant/applicant’s Notice of Motion dated 29th October 2024 and filed on 30th October 2024. It is expressed to be brought under Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules, Sections 1, 1A, 3A and 63(c) and (e) of the Civil Procedure Act, and Articles 50 and 169 of the Constitution of Kenya, 2010. The applicant, Stella Chiku Masai, is the appellant and was the plaintiff in the court below. 2.In substance, the application seeks two operative reliefs: first, the enlargement of the time within which to lodge the appeal against the judgment and decree delivered on 19th June 2024; and secondly, a stay of execution of that judgment and decree pending the hearing and determination of the appeal. By this Court’s order of 18th February 2025 an interim stay was granted pending the hearing of the application inter partes. That interim stay was, however, discharged on 30th July 2025, and there is accordingly no stay of execution in force as at the date of this ruling. 3.Because a stay of execution pending appeal presupposes the existence of a competent appeal, I address first the anterior question of the enlargement of time and the competence of the intended appeal, and only thereafter, and to the extent necessary, the prayer for a stay. Background 4.The dispute has its origins in Mombasa Chief Magistrate’s Court Civil Suit No. E033 of 2023, in which the applicant sued the respondent. By a judgment delivered on 19th June 2024, the learned Senior Resident Magistrate (Hon. J. Nyariki) dismissed the applicant’s suit and allowed the respondent’s counterclaim. The trial court declared that the applicant was in default of the sale agreement and that the respondent was entitled to repossess the suit motor vehicle; ordered the applicant to pay the respondent the sum of Kshs 1,803,000 together with interest; declared the respondent at liberty to repossess and sell the suit motor vehicle to recover that sum; and awarded a further sum of Kshs 50,000 as general damages for breach of contract. 5.The subject matter of the suit, and of the intended appeal, is a single, specific movable chattel, motor vehicle registration number KDH 832U, a Toyota Harrier. Aggrieved by the judgment, the applicant lodged a memorandum of appeal and the present application. 6.In her supporting affidavit and grounds, the applicant contends that the substratum of the appeal is the said motor vehicle; that unless a stay is granted the vehicle will be repossessed, carted away and sold by public auction or private treaty, thereby rendering the appeal nugatory; that she has offered to furnish security for the decretal sum; and that the delay, if any, in moving the Court was occasioned by the civil unrest that affected the country in mid-2024, ill-health, and the late typing of the proceedings, in respect of which her advocates protested to the executive officer of the subordinate court by a letter dated 14th August 2024. The Respondent’s Opposition 7.The respondent opposes the application through its grounds of opposition dated 12th December 2024 and written submissions dated 3rd April 2025. In summary, the respondent contends that the applicant approaches the Court with unclean hands, having retained and concealed the suit vehicle while failing to pay the decretal sum; that the application is res judicata or sub judice by reason of an earlier application dated 26th July 2024 before the trial court; that it has been brought with unreasonable and inexplicable delay; that the intended appeal has little or no prospect of success; that execution is a lawful process that does not amount to substantial loss; and that the applicant has demonstrated neither the capacity nor the willingness to provide security for due performance. 8.In support, the respondent relies on Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR for the threshold to be met by a party who seeks the enlargement of time. Issues for Determination 9.Having considered the application, the affidavits, the grounds of opposition and the rival submissions, two issues fall for determination: first, whether the applicant has laid a proper basis for the enlargement of time within which to lodge her appeal, so as to render the intended appeal competent; and secondly, if so, whether she has satisfied the conditions for the grant of a stay of execution pending the hearing and determination of the appeal. Analysis and Determination (i) Preliminary matter: sub judice 10.I first dispose of the objection that the application is sub judice. The record shows that the applicant’s earlier application dated 26th July 2024 was heard and determined by the trial court: on 12th August 2024 the learned magistrate granted a stay of fourteen days and expressly stated that the order settled that application. A subordinate court’s power to stay execution of its own decree pending appeal is limited by Order 42 Rule 6(4), and the trial court granted the only stay it thought fit. There being no application still pending before that court, and this appellate court being the proper forum for a stay pending the hearing and determination of an appeal, the objection is spent and is overruled. (ii) Enlargement of time and the competence of the appeal 11.The memorandum of appeal was lodged on 26th July 2024, some seven days after the expiry of the thirty-day period prescribed by Section 79G of the Civil Procedure Act, which requires an appeal from a subordinate court to the High Court to be filed within thirty days of the date of the decree or order appealed from. An appeal filed after that period, without leave, is incompetent. It is precisely for that reason that the applicant seeks the enlargement of time; and it is trite that a party who has filed out of time cannot simply file first and regularise the position later. Leave must be sought and obtained, and the memorandum stands or falls by whether that leave is granted: Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR. 12.The power to extend time under Section 79G is exercisable only for good and sufficient cause, and the factors that guide the discretion are those restated in the Salat case (supra): the length of the delay, the reason for the delay, the chances of the intended appeal succeeding, and the degree of prejudice to the respondent if the application is granted. The length of the delay here is admittedly short. But brevity of delay is not, of itself, decisive; the applicant must still furnish a satisfactory explanation for the delay that did occur. 13.The explanations offered do not withstand scrutiny. The applicant attributes her failure to file within time to the civil unrest that affected the country in mid-2024. She has not, however, explained how that unrest disabled her, or her advocates, from lodging the memorandum of appeal within the prescribed period. The filing of court documents in this jurisdiction is now conducted electronically, through the Judiciary’s e-filing platform; a memorandum of appeal is lodged online and does not require physical attendance at the court registry. Whatever disturbances may have impeded movement on the streets, they did not, without any explanation, prevent the electronic filing of a memorandum of appeal from a desk or a telephone. In short, no nexus has been demonstrated between the unrest and the specific failure to file in time, and a bare invocation of the riots cannot, in these circumstances, amount to good and sufficient cause. 14.The remaining explanations fare no better. The late typing of the proceedings cannot excuse the late filing of the memorandum of appeal: the typed proceedings are required for the preparation of the record of appeal, not for the lodging of the memorandum, which is drawn from the judgment and the decree. The applicant did not need the proceedings in order to file her memorandum in time. As for the plea of ill-health, it is asserted in the most general terms, unsupported by any particulars or medical documentation, and cannot bear the weight placed upon it. Taken singly or cumulatively, the matters relied upon do not constitute good and sufficient cause within the meaning of Section 79G. 15.It follows that no proper basis has been laid for the enlargement of time. The application for enlargement of time is therefore refused, and the memorandum of appeal lodged on 26th July 2024, being out of time and unsanctioned by any grant of leave, is incompetent. (iii) There being no competent appeal, there is no foundation for a stay 16.That conclusion is decisive of the primary prayer. A stay of execution under Order 42 Rule 6 of the Civil Procedure Rules is a relief granted pending the hearing and determination of an appeal. It presupposes the existence of an appeal to which the stay can attach. Where, as here, the enlargement of time has been refused and there is no competent appeal on record, there is nothing to which a stay can be anchored. The Court cannot stay execution pending an appeal that does not, in law, exist. The prayer for a stay pending appeal therefore fails at the threshold, and would fall to be dismissed on this ground alone. Disposition 17.For the foregoing reasons, the Notice of Motion dated 29th October 2024 is devoid of merit. I make the following orders:1.The application for enlargement of time within which to lodge the appeal is refused, and the memorandum of appeal lodged on 26th July 2024 is, in consequence, incompetent.2.There being no competent appeal on record to which a stay can attach, the prayer for a stay of execution pending appeal, and the Notice of Motion dated 29th October 2024 in its entirety, are dismissed.3.The costs of the application are awarded to the respondent.It is so ordered. SIGNED, DATED AND PUBLISHED ON 7 AUGUST 2026NGAAH JAIRUSJUDGE