https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9620

Mbukoni Services Ltd v Matheka (Miscellaneous Civil Application E047 of 2026) [2026] KEHC 9620 (KLR) (30 June 2026) (Ruling) Neutral citation: [2026] KEHC 9620 (KLR) Republic of Kenya In the High Court at Makueni Miscellaneous Civil Application E047 of 2026 JN Onyiego, J June 30, 2026 Between Mbukoni Services Ltd Appellant and Linus Maitha Matheka Respondent Ruling 1.The application for determination is dated 04/05/2026. It was filed under Certificate of Urgency pursuant to Sections 1A, 1B, 3 & 3A of the Civil Procedure Act, Order 21 Rule 1B, Order 22 Rule 22, Order 40 Rule 6, Order 51 Rule 1 of the Civil Procedure Rules 2010, Article 159 (2) of the Constitution and all other enabling provisions of the law. It seeks the following orders;a.Spent.b.The firm of KRK Advocates LLP be granted leave to come on record for the applicant herein.c.That this Honorable Court be pleased to grant interim stay of judgment in Makindu CMCC No. E278 of 2023 by the Honorable SRM M.W Kibe delivered on 8th October 2025 holding the Appellant 100% liable and awarding the Respondent General Damages of Kshs. 400,000/=, Special Damages Kshs. 3,050/= plus costs and interest pending the hearing and determination of this Application.d.That this Honorable Court be pleased to extend time and/or grant leave and/or permission to the Applicants to lodge an appeal out of time against the judgment and decree rendered by Honorable SRM M.W Kibe delivered on 8th October 2025.e.That this Honorable Court be pleased to stay the judgment delivered in Makindu CMCC No. E278 of 2023 by the Honorable SRM M.W Kibe on 8th October 2025 pending the hearing and determination of the intended appeal.f.That this Honorable Court be pleased to issue any other order and/or direction it deems fit to grant in the circumstances.g.That the costs of this Application abide the outcome of the Appeal. 2.The Application is supported by the grounds on its face and the affidavit sworn by Nduta Kiroko on the same day. She deposed that she is an Advocate of the High Court practicing as such in the firm of KRK Advocates LLP and that she has conduct of this suit on behalf of the Appellant hence competent to swear the affidavit. 3.That, the Appellant has thoroughly perused the judgment in Makindu CMCC No. E278 of 2023 (JNK 1) and is dissatisfied with the award on general damages, special damages plus interest and costs. A copy of Memorandum of Appeal is exhibited as JNK 2. 4.That, unless interim stay is granted, the Appellant is at a very high risk of being executed upon as the Respondent has served them with a demand letter (JNK3). 5.The application is opposed through the Replying Affidavits of Linus Matheka and Faith Mutio Mutuku sworn on 11/05/2026. Linus deposed that he is the Respondent in the matter and that judgment was delivered on 08/10/2025 and to date, the decretal sum remains unpaid without any explanation. That, the delay in bringing the application is inexcusable. 6.That, the Applicant has not offered any security nor demonstrated what loss he will suffer if the order for stay is not granted. It was averred that the Applicant has neither demonstrated the existence of an arguable Appeal nor met any of the conditions set out in Order 42 Rule 6 of the Civil Procedure Rules. 7.That, according to information from his Advocates which he verily believes to be true, the issuance of a decree dated 02/04/2026 (LMM 1) is what prompted the filing of the application. That, it is therefore an afterthought and the Applicant is guilty of indolence. 8.That the Applicant has not disclosed the application dated 16/04/2026 via HCCCMISC E039 of 2026 in which they are seeking stay of execution as well. 9.That, the Applicant has neither provided a satisfactory reason for the delay nor demonstrated why court’s discretion should be exercised in his favor. 10.It was contended that the intended appeal is not arguable and has no merit as the trial court judgment was reached after careful consideration of the evidence and relevant comparative authorities. That, the Applicant did not call any evidence or witness to challenge the Respondent’s case. 11.That, the Applicant has not demonstrated what prejudice he will suffer, if any, if the application is denied. That, in our jurisdiction, insurance companies are known to collapse anytime hence he (Respondent) will suffer damage that cannot be compensated by way of damages as he is likely to end up with a paper judgment. 12.The depositions in the Affidavit of Faith Mutio Mutuku are a replica of those in the affidavit of Linus Matheka hence no need to reproduce them. 13.Directions were given that the application be canvassed through written submissions. Consequently, the parties complied and filed their respective submissions. 14.The Applicant identified the issues for determination to be;a.Whether or not the applicant has issued a plausible reason for the delay in filing the Memorandum of Appeal; and what prejudice will the Respondent suffer if stay is granted.b.Whether or not the draft Memorandum of Appeal raises arguable issues;c.Whether or not substantial loss will occur if stay of execution is not granted; 15.As to whether a plausible reason for delay has been given, it was acknowledged that the intended appeal was not filed within the required statutory timelines. It was submitted that the delay was occasioned by the fact that the Applicant had a previous advocate on record and in the course of changing legal representation, the judgment was not presented or explained to him in good time. That, it is for this reason that the Applicant prays that the firm of KRK Advocates LLP be allowed to formally be on record for him as it is a Constitutional right to have legal representation. 16.It was submitted that the Respondent has not established that he has been prejudiced in any manner by the said delay. Reliance was placed on the case of Nicholas Kiptoo Arap Korir Salat -vs- Independent Electoral and Boundaries Commission & Others (2013) eKLR where the court stated;“Deviation from and lapses in form and procedures which do not go to the jurisdiction of the court, or to the root of the dispute or which do not at all occasion prejudice or miscarriage of justice to the opposite party ought not be elevated to the level of a criminal offence attracting such heavy punishment of the offending party, who may in many cases be innocent since the rules of procedure are complex and technical. Instead, in such instances the court should rise to its highest calling to do justice by sparing the parties the draconian approach of striking out pleadings. It is globally established that where a procedural infraction causes no injustice by way of injurious prejudice to a person such infraction should not have an invalidating effect. Justice must not be sacrificed on the altar of strict adherence to provisions of procedural law which at times create hardships and unfairness.” 17.As to whether the appeal raises triable issues, it was submitted that the Applicant is appealing mainly on quantum as the same is excessive and not proportionate to the injuries suffered or the evidence that was adduced before the trial court. That, the injuries were soft tissue injuries in nature and ought to attract a lower award. Reliance was placed on the case of Kenya Revenue Authority -vs- Sidney Keitany Changole & 3 Others (2015) eKLR where the court stated;“This Court has further held that the applicant need only prove or establish one arguable point noting that an arguable appeal is not necessarily one that will succeed but one that is not frivolous.” 18.As to whether substantial loss will occur if stay of execution is not granted, it was submitted that the Respondent’s means are unknown and it is highly unlikely that he will be capable of refunding the decretal amount in the event that the intended appeal succeeds. That, the Respondent has not disclosed or furnished the court with any documentary evidence to prove his financial standing. Reliance was placed on the case of Edward Kamau & Anor -vs- Hannah Mukui Gichuki & Anor (2015) eKLR where the court stated;“I am in agreement with the applicants that in the absence of an affidavit of means, it may be construed that the respondent is not possessed of sufficient means and therefore not in a position to reimburse decretal money should the appeal succeed.” 19.It was submitted that the Applicant is willing to furnish reasonable security as the court may deem fit. It was proposed that security be in the form of a bank guarantee to secure the entire decretal amount, which is an acceptable form of security. 20.As to whether the firm of KRK Advocates LLP should be granted leave to come on record, it was submitted that no explanation has been given as to why leave should be granted. Reliance was placed on the case of Invesco Assurance Company Ltd & 2 Others -vs- Auctioneers Licensing Board & Anor; Kinyanjui Njuguna & Company Advocates & Anor (Interested Parties) [2020] KEHC 3401 (KLR) where the court stated;“ 68.Regarding prayer 7 in which the applicant sought the court’s discretion that the suit should be heard by way of affidavit evidence and written submissions, this prayer appears to have been abandoned as parties did not address it in their affidavits and in their submissions. In the premises, I decline to make any finding on the same.” 21.With regard to the prayer for leave to appeal out of time, it was submitted that the intended appeal is not arguable and has no merit. That, the Applicant did not call any evidence or witness to challenge the Respondent’s case on quantum and liability and did not file any submissions to guide the trial court. 22.It was submitted that the Applicant has not sworn any affidavit to explain the reason and length of delay. That, the deponent of the affidavit in support of the application is an Advocate in the firm of KRK Advocates LLP which firm is trying to come on record for the Applicant, many months after the trial court judgment was delivered. It was contended that the said Advocate has no personal knowledge of the facts relating to this case. Reliance was placed inter alia on the case of Lugz Enterprises & Another -vs- Robert Lang’at [2021] eKLR where the court stated;“ 18.A party seeking leave to appeal out of time should not presume on the Court’s discretion, regardless of the period of delay. The period of delay and explanation therefore are twin considerations in an application of this nature. In the absence of an explanation, the Court would find it difficult to exercise its discretion in the Applicant’s favour. In this instance, notwithstanding the negotiations, nothing prevented the Applicants from filing the appeal immediately after judgment was delivered and in the intervening period engage the Respondent in negotiations to compromise the decretal sum and or appeal… 19.…It is incumbent upon the Applicants to fully explain the circumstances leading to the inordinate delay in filing the intended appeal. It is not enough to allege that parties were negotiating; indeed, the Respondents have countered that the negotiations broke down due to tardiness on the part of the Applicants and that the Applicants only moved this court because execution commenced thereafter. Such an indolent party cannot expect the court to exercise its discretion in his favour. In the result, the court agrees with the Respondent that the Applicants have not demonstrated “good and sufficient cause” for not filing the appeal in time to justify the prayer for extension of time to appeal. The motion dated 2nd March 2021 has no merit and is therefore dismissed with costs.” 23.As to whether the Applicant has met the conditions for grant of stay of execution, it was submitted that the application was filed eight months after delivery of judgment. That, the Applicant was represented when judgment was delivered but he waited until the decree was issued and started running to court with a frivolous application. That the Applicant is guilty of inordinate and inexcusable delay as the same has not been explained. Reliance was placed, inter alia, on the case of Marwa -vs- Chacha (Civil Appeal (Application) 103 0f 2020) [2025] KECA 2151 (KLR) (1 December 2025) (Ruling) where the Court of Appeal stated;“ 8.This Court has consistently held that unexplained delays are fatal. For instance, in Bi-Mach Engineers Ltd v James Kahoro Mwangi [2011] eKLR, extension was refused where delay lacked explanation. The applicant’s omission to explain the delay demonstrates negligence and lack of diligence, which this Court has repeatedly declined to excuse. It has also been averred and not contested by the applicant that the respondent had severally demanded to be served with the Record of Appeal to no avail. That the applicant was only awoken from his deep slumber after he was served with the application seeking to strike out the Record of Appeal as aforesaid. Such conduct, in my view and as correctly submitted by the respondent disentitles the applicant to the Court's equitable discretion. 10.I am also tempted to agree with the respondent’s observation that this application is meant to pull the rack under the feet of the respondent. The applicant only presented this application after being served with the respondent's application to strike out the Record of Appeal. It is therefore obvious the application is reactionary, an afterthought, and intended to defeat the respondent's substantive application…” 24.It was submitted that the appeal is not arguable and has no merit. Reliance was placed on the case of Mutera M’limbutu -vs- M’imathiu Mwirichia [2005] eKLR where the court stated;“I have also considered whether the applicant’s appeal has high chances of success. I note that apart from the grounds in the Memorandum of Appeal, being annexture “MM2” to the supporting affidavit and the decree being annexture “MM1”, the applicant did not place before me the record of the lower court for perusal so as to be able to say whether or not indeed the applicant’s appeal has high chances of success.In the result, I find that the applicant’s application for stay lacks merit. The same is therefore dismissed in its entirety with costs to the respondent.” 25.With regard to substantial loss, it was submitted that the only prejudice indicated by the Applicant is the risk of execution. It was contended that execution is a lawful process and its commencement is not an indication that the judgment debtor will suffer substantial loss. Reliance was placed on the case of Njenga -vs- Njeri & 2 Others (Civil Appeal E125 of 2023) [2023] KEHC 23991 (KLR) (24 October 2023) (Ruling) where the Court stated;“ 36.It is the duty of the Applicant in an application for stay of execution to establish that he/she will suffer substantial loss if the orders sought are not granted. In Machira t/a Machira & Co. Advocates v East African Standard (No 2) (2002) KLR 63 the Court of Appeal considered as to what amounts to substantial loss and held that;“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.” 26.It was submitted that the Applicant has not offered to provide security which is a mandatory condition before grant of stay pending appeal. Reliance was placed on the case of Gianfranco Manenthi & Anor -vs- African Merchant Assurance Co. Ltd (2019) eKLR where the court stated;“Under this condition, a party who seeks the right of appeal from money decree of the lower court for n order of stay must satisfy this condition on security.” 27.In conclusion, it was submitted that the application has not satisfied the conditions in Order 42 Rule 6 and is therefore devoid of merit. 28.Having looked at the application, response and submissions, the only issue for determination is whether the Application is merited. 29.As for the Application by KRK Advocates LLP to come on record for the Applicant, the same is governed by Order 9 Rule 9 of the Civil Procedure Rules which provides;“When there is a change of advocate, or when a party decides to act in person having previously engaged an advocate, after judgment has been passed, such change or intention to act in person shall not be effected without an order of the court—(a)upon an application with notice to all the parties; or(b)upon a consent filed between the outgoing advocate and the proposed incoming advocate or party intending to act in person as the case may be.” 30.Considering that the firm of KRK is coming on record in the appeal which is an independent suit from the primary suit, he is not under obligation to seek leave. Therefore, the firm is properly on record. 31.As for the prayer for extension of time to appeal, Section 79G of the Civil Procedure Act provides that:-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. 32.The proviso implies that an intended appeal should be in place or be filed together with the application seeking leave for extension of time to file it. This view is buttressed by the case of Mugo & Others -vs- Wanjiru & Anor [1970] EA 482 where the court stated as follows: -“Clearly, as a general rule the filing and service of the notice of appeal ought to be regularized before or at least at the same time as an application is made to extend the time for filing the record and the fact that this has not been done might be a reason for refusing the application or only allowing one on terms as to costs. But it does not mean that such an application must be refused.” 33.In the instant case the Applicant has attached a draft Memorandum of Appeal to this miscellaneous application which, in my view, qualifies as an intended appeal for purposes of guiding the court on whether to the grant the orders sought. 34.It is now well settled that the extension of time or its denial is an exercise of discretion by the court. In Leo Sila Mutiso -vs- Rose Hellen Wangari Mwangi, (Civil Application No. Nai. 255 of 1997) (unreported); the Court of Appeal stated as follows;“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”. 35.The judgment was delivered on 08/10/2025 and this application was filed on 05/05/2026, approximately 207 days later. The law requires appeals from Subordinate Courts to the High Court to be filed within 30 days from the date of the decree or order appealed against. After lapse of the statutory period, the delay in this matter is 177 days or approximately six months. 36.The Affidavit sworn in support of the application by Advocate Nduta Kiroko, from KRK Advocates LLP, is basically a reproduction of the orders sought in the application. It does not explain the reason for the delay of six months yet it is trite that even a delay of one day should be explained. 37.The Applicant attempted to introduce reasons and justification for the delay in his submissions but it is trite that submissions are not evidence and cannot replace pleadings. In the persuasive case of Ogando -vs- Watu Credit Limited & Another (Civil Suit E098 of 2022) [2024] KEHC 3074 (KLR) (14 March 2024) (Judgment) the court (DKN Magare J) stated;“ 11.…Submissions and authorities are suggestions that are neither persuasive nor binding on the court. They express the party’s partisan view of the case. It cannot be a ground to overturn a decision. Submissions are not evidence and as such, however beautifully calligraphed, the submissions, concrete proof still stands as the goal of litigation. 12.On submissions the position I hold is that parties cannot rely on submissions to do that which should have been done by pleadings and evidence…” 38.Further, in the case of Robert Ngande Kathathi -vs- Francis Kivuva Kitonde [2020] eKLR, the Court (G.V Odunga J -as he then was) stated;“It also relied on submissions of the parties to which no agreed documents were annexed. Submissions, with due respect, do not amount to evidence unless expressly adopted as such. Consequently, in legal proceedings, evidence ought not to be introduced by way of submissions.” 39.Similarly, in the case of Ngang’a & Another -vs- Owiti & Another [2008] 1KLR (EP) 749, the Court stated that:“As the practice has it and especially where counsel appears, a Court may hear final submissions from them. This, strictly speaking, is not part of the case, the absence of which may do prejudice to a party. A final submission is a way by which counsel or sometimes (enlightened) parties themselves, crystallize the substance of the case, the evidence and the law relating to that case. It is, as it were, a way by which the Court’s focus is sought to be concentrated on the main aspects of the case that affect its outcome. Final submissions are not evidence. Final submissions may be heard or even dispensed with. But the main basis of a decision in a case, we can say are: the claim properly laid, evidence fully presented and the law applicable.” 40.From the foregoing, the irresistible conclusion is that the application has no legs to stand on and there is absolutely no reason given for why this court should exercise its discretion in favor of the Applicant to justify the unreasonable delay. 41.Having looked at the trial court’s judgment and Memorandum of Appeal, I am inclined to agree with the Respondent that this application is a reaction to the decree issued on 02/04/2026 and is basically intended to delay a lawful process. It is trite that execution is a lawful process and cannot be ground for granting stay of execution. In the case of James Wangalwa & Another -vs- Agnes Naliaka Cheseto [2012] eKLR, the Court (F. Gikonyo J) stated;“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...” 42.Consequently, it is my considered view that the Application is devoid of merit hence dismissed with costs in favour of the Respondent. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 30TH DAY OF JUNE 2026…………...................………J.N.ONYIEGOJUDGE