https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10448

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT NAKURU** **CIVIL APPEAL NO. E277 OF 2025** MIGOTIYO PLANTATION LIMITED ........ APPELLANT/APPLICANT VERSUS BORESHA SACCO LTD ........................................ RESPONDENT *(Being an appeal against the judgment of Hon. E. Juma (CM) delivered on 9th October, 2025 in Nakuru Chief Magistrate's Civil Case No. E144 of 2020)* **RULING** [1] The Applicant, **Migotiyo Plantation Limited**, moved this Court by way of a Notice of Motion dated 3rd February, 2026. The application is expressed to be brought under Sections 1A, 1B, and 3A of the Civil Procedure Act, Order 12 Rule 7 of the Civil Procedure Rules, Article 159 of the Constitution of Kenya, 2010, and all other enabling provisions of the law. [2] The application seeks the following orders; 1. ***Spent.*** 2. ***That this Honourable court be pleased to reinstate the conditional orders for stay of execution of judgment and decree in NAKURU CMCC NO. E144 /2020 issued by this court on the 19th December ,2025.*** 3. ***That this Honourable court be pleased to extend time for compliance with the conditional orders for stay of execution of judgment and decree in NAKURU CMCC NO. E144 /2020.*** 4. ***That this Honourable court be pleased to order for the assessment of half the decretal amount by the Deputy Registrar forthwith.*** 5. ***That cost of this application be in the cause.*** [3] The background is that judgment was delivered on 9th October, 2025, in Nakuru Chief Magistrate's Court Civil Suit No. E144 of 2020, in favour of the Respondent for Kshs. 11,320,008/- together with costs and interest. The Applicant lodged an appeal and simultaneously filed an application for Stay of Execution. On 19th December, 2025, this Court granted a conditional Stay on condition that the applicant deposits half of the decretal sum, being Kshs. 5,660,004/-, in court by 12th January, 2026. The Applicant failed to comply, and the stay lapsed. The Applicant now seeks reinstatement, attributing its non-compliance to a medical emergency involving its director. [4] The application is supported by the affidavit of PETER GACHOKA, the Applicant's manager, sworn on 3rd February, 2026. The depositions may be summarized as follows: (a) That judgment was entered against the Applicant on 9th October, 2025, for Kshs. 11,320,008/- together with costs and interest. (b) That the Applicant lodged an appeal against the said judgment. (c) That this Court granted a conditional stay on 19th December, 2025, requiring the deposit of half the decretal sum by 12th January, 2026. (d) That the Applicant failed to comply within the timeline due to a medical emergency involving the company director, who is the mandatory signatory for such transactions. The director fell ill around the time of the directions and was whisked away for treatment abroad until late January, 2026. (e) That the Applicant is now ready and willing to comply, with the funds already processed and ready for deposit. (f) That there is a real danger of execution, which would gravely disrupt the Applicant's operations. (g) That the Respondent's financial capability to refund the decretal sum in the event the appeal succeeds is unknown and unassured. [6] During the hearing, Miss Kirui for the appellant/applicant submitted that the application had been served and remained unopposed. No replying affidavit had been filed. [5] The following issues arise for determination: *(i)* ***Whether the Applicant has established sufficient cause for the reinstatement of the stay orders and extension of time;*** ***(ii) Whether the Applicant has demonstrated that the non-compliance was excusable;*** ***(iii) Whether the Respondent will suffer prejudice if the orders are reinstated; and*** ***(iv) What orders ought to be made in the circumstances.*** [6] The application is properly brought under Order 12 Rule 7 of the Civil Procedure Rules, which provides: ***"Where under this Order judgment has been entered or the suit has been dismissed, the court on application, may set aside or vary the judgment or order upon such terms as are just*."** [7] The application is also anchored on Section 3A of the Civil Procedure Act, which preserves the Court's inherent power to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. [8] The principles governing the exercise of judicial discretion to set aside or vary orders are well established. As stated in ***Pithon Waweru Maina v Thuku Mugiria [1983] KECA 75 (KLR***) : ***"Firstly, as was stated by Duffus P in Patel v EA Cargo Handling Services Ltd [1974] EA 75 at 76 C and E: 'There are no limits or restrictions on the judge's discretion except that if he does vary the judgment he does so on such terms as may be just ... The main concern of the court is to do justice to the parties, and the court will not impose conditions on itself to fetter the wide discretion given it by the rules.'*** ***"Secondly, as Harris J said in Shah v Mbogo [1967] EA 116 at 123B: 'This discretion is intended so to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist the person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice.'"*** [9] In ***Patel v EA Cargo Handling Services Ltd [1974] EA 75*** , the Court held: ***"There are no limits or restrictions on the judge's discretion except that if he does vary the judgment, he does so on such terms as may be just. The main concern of the court is to do justice to the parties and the court will not impose condition on itself or fetter wide discretion given to it by the rules."*** [10] These principles apply equally to the Court's discretion to reinstate orders that have lapsed due to non-compliance. The Applicant attributes its non-compliance to a medical emergency involving its director, who is alleged to be the sole mandatory signatory for the company's accounts. However, the Court observes with concern that no medical documents, hospital records, or travel itineraries have been exhibited to substantiate this claim. The Applicant's manager has merely deposed to these facts on information and belief. [11] In the absence of any supporting documentary evidence, the Court is being asked to exercise its discretion on the basis of unsubstantiated oral assertions. The applicant has failed to place before the Court any material that would enable the Court to verify the genuineness of the alleged medical emergency. [12] In ***Pithon Waweru Maina v Thuku Mugiria [1983] KECA 75 (KLR),*** the Court of Appeal held that the discretion to set aside is intended to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error. The Court further held that the discretion is not designed to assist a person who has deliberately sought to obstruct or delay the course of justice. [13] In the present case, the applicant's failure to comply is attributed to a medical emergency. However, the absence of any documentary evidence to support this claim weakens the applicant's explanation. The Court is being asked to accept the manager's word alone. This is insufficient to establish that the non-compliance was excusable. [14] Furthermore, the applicant did not seek an extension of time before the deadline lapsed, inform the Court of the director's illness before the deadline, or attempt to make any deposit, even a partial one, before the deadline. This conduct suggests a lack of urgency and a casual attitude toward compliance with court orders. [15] The Court acknowledges that the application is unopposed. However, the Supreme Court in ***Gideon Sitelu Konchellah v Julius Lekakeny Ole Sunkuli & 2 others [2018] KESC 58 (KLR)*** held: ***".........It is not automatic that for any unopposed application the court will as a matter of course grant the sought orders. It behoves the court to be satisfied that prima facie, with no objection, the application is meritorious and the prayers may be granted. The court is under a duty to look at the application and without making any inferences on facts, point out any points of law, such as any jurisdictional impediment, which might render the application a non-starter."*** [16] This Court has carefully considered the merits of the application and is not satisfied that the applicant has met the threshold for the grant of the orders sought. [17] The Respondent has a valid judgment in its favour and is entitled to the fruits of that judgment. The judgment was delivered on 9th October, 2025, and the Respondent has been waiting for its money since then. The applicant has not complied with the conditions of the stay, and there is no guarantee that it will comply in the future.The balance of convenience weighs in favour of the Respondent, who has a legitimate expectation to enjoy the fruits of its judgment. [18] The Court is guided by the overriding objective under Sections 1A and 1B of the Civil Procedure Act and Article 159 of the Constitution, which require the Court to administer justice without undue regard to procedural technicalities. However, this does not mean the Court should ignore the applicant's failure to comply with court orders or its failure to adduce evidence to support its case. [19] In the upshot, the notice of motion dated 3rd February 2026 lacks merit and is accordingly dismissed with no orders as to costs. It is so ordered. **Dated, signed, and delivered at Nakuru on this 15th day of July, 2026.** **J. K. SERGON** **JUDGE** **In presence of:** Jamleck/Rutoh C/A Miss Kirui for the Applicant