https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6634

Masha & 2 others v Kuria & another (Suing as Administrators of the Estate of Late Israel Baya Mulonzi) (Miscellaneous Application E028 of 2024) [2026] KEHC 6634 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KEHC 6634 (KLR) Republic of Kenya In the High Court at Malindi Miscellaneous Application E028 of 2024 M Thande, J May 15, 2026 Between Juma Tsofa Masha 1st Applicant Maggi Bajaj 2nd Applicant Mogo Auto Limited 3rd Applicant and Elizabeth Kadzo Kuria 1st Respondent Gilbert Karisa Mlonzi 2nd Respondent Suing as Administrators of the Estate of Late Israel Baya Mulonzi Ruling 1.In an application dated 23.4.24, the Applicants seek leave to appeal out of time, the judgment delivered on 8.12.23 in Kilifi CMCC No. E156 of 2022. They also sought stay of execution of the said judgment pending the hearing and determination of the Application and intended appeal, which was granted. 2.The grounds upon which the Application is premised are that the Applicants’ insurer, which is obligated to settle the judgment, intends to appeal against the award of quantum; that at the time the judgment was shared with the insurer, the time for lodging an appeal had lapsed; that the delay in lodging the appeal is not inordinate and is excusable given the circumstances; that the Applicants are willing to abide by any conditions of stay of execution that the Court may impose; that the imminent execution shall destroy the substratum of the intended appeal; that the Applicants stand to suffer irreparable harm as the hefty sum awarded would be placed beyond the reach of the Court and the Applicants thus warranting an order of stay of execution; that no real prejudice will be suffered by the Respondents as the Court is mandated to balance the rights of a decree holder to enjoy the fruits of judgement as well as the right of appeal; that the security offered sufficiently protects the rights of the Respondents. 3.The Respondents opposed the Application vide a replying affidavit sworn on 12.8.24 by the 1st Respondent. He averred that the Applicant has not demonstrated the substantial loss they may suffer if the decretal sum is paid to the estate; that the application is an academic exercise intended to delay and prevent the estate from enjoying the fruits of its judgment; that the Application is based on a wrong assumption that the intended appeal is arguable and with a high chance of success as the trial court award was within the discretionary range of the court; that the Application is made after an unjustifiable delay of more than 4 months; that the Applicants had an advocate on record in the lower court and were aware when the judgment was delivered; that the Applicants have not demonstrated any limiting factors that restricted the Applicants from filing the said appeal within time. The Respondents urged that the Application be dismissed with costs. 4.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. 5.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. 6.An order for extension of the time to file an appeal is discretionary. This together with the principles that a court should consider were set out in George Kagima Kariuki & 2 others v George M. Gichimu & 2 others [2014] KECA 566 (KLR), where the Court of Appeal stated:Earlier, in Leo Sila Mutiso V Rose Hellen Wangari Mwangi, Civil Application No. Nai 255 OF 1997 (unreported) this court stated:“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters, which this Court takes into account in deciding whether to grant an extension of time, are first the length of the 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.” 7.The impugned decision is dated 8.12.23. By dint of Section 79G of the Civil Procedure Act, the appeal ought to have been filed by 8.1.24. The Application was filed on 23.4.23 a delay of about 4 months. Applying the principles set out in Leo Sila Mutiso, the Court finds that there was considerable delay in filing the Application and draft memorandum of appeal. 8.What this Court must then determine is whether the explanation given by the Applicants for the delay is plausible. The Applicant states that at the time the judgment terms were shared with the insurer, the time for lodging an appeal had lapsed. This is not a good and sufficient cause as contemplated in the proviso to Section 79G of the Civil Procedure Act. The Applicant has not stated when the terms of the judgment was shared with insurer. No reason has been given for the delay in informing the insurer of the judgment. Notably, the Applicants have not denied that they had an advocate on record in the lower court and were aware when the judgment was delivered. I accordingly find that no good and sufficient cause for not filing the appeal in time has been placed before the Court. 9.Additionally, it is noted that judgment in the lower court was delivered on 8.12.23. My view is that granting the orders sought herein would greatly prejudice the Respondent who is yet to enjoy the fruits of his judgment 2½ years after the same was delivered. 10.In the premises, I find and hold that the Application lacks merit and the same is dismissed with costs to the Respondent. DATED, SIGNED AND DELIVERED IN MALINDI THIS 15TH DAY OF MAY 2026M. THANDEJUDGE