https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7275

Modern Coast Coaches Limited v Kitheka & another (Suing as the legal representatives of the Estate of Gideon Kitheka Kimanzi alias Gidion Kitheka Kimanzi - Deceased) (Miscellaneous Application E001 of 2026) [2026] KEHC 7275 (KLR) (26 May 2026) (Ruling) Neutral citation: [2026] KEHC 7275 (KLR) Republic of Kenya In the High Court at Chuka Miscellaneous Application E001 of 2026 RL Korir, J May 26, 2026 Between Modern Coast Coaches Limited Applicant and Esther Kanini Kitheka 1st Respondent Robert Kimanzi 2nd Respondent Suing as the legal representatives of the Estate of Gideon Kitheka Kimanzi alias Gidion Kitheka Kimanzi - Deceased Ruling 1.For determination is the application dated 9th January 2026 seeking the following orders: -i.That the Applicant, Modern Coast Coaches Limited be granted leave to appeal out of time against the judgment and decree delivered on 8th September 2025 in Chuka CMCC No. 148 of 2017 by Honourable Joyce Gandani.ii.That the annexed Memorandum of Appeal be deemed as duly filed upon payment of the requisite court fees.iii.That there be stay of execution of the judgment and decree pending the hearing and determination of the intended appeal.iv.That costs of the application abide by the outcome of the appeal 2.The Application is premised on the grounds set out the face of the motion and the sworn affidavit of Carren Cheruto a representative of the Applicant. She deponed that the trial court delivered its judgment on 8th September 2025. 3.She stated that the statutory period of thirty days for filing an appeal lapsed before the applicant could file the appeal. That the delay was occasioned in obtaining a copy of the judgment from the trial court and the Applicant acted immediately after obtaining the copy of judgment by filing the instant application. 4.She further stated that the intended appeal raises arguable issues as the trial court awarded Kshs. 2,500,000 for loss of dependency notwithstanding that the deceased’s earnings were not proved by pays lips, bank statements, business records or any other documentary evidence. Further, that no credible evidence was laid before the trial court to justify the multiplicand adopted in assessing loss of dependency and the court should have adopted a modest global approach. 5.The Applicant stated that if leave to appeal out of time was not granted, they would suffer substantial loss. 6.The Respondents filed a replying affidavit sworn by Esther Kanini Kitheka stating that the application was misconceived and does not meet the threshold under Order 40 Rule 4 (2) and the conditions to be considered by the court while extending time to appeal. 7.She stated that the 30 days’ stay granted lapsed and they were never served with an appeal within the prescribed timeline and there was no evidence that the Applicant made efforts to acquire a copy of the judgment within time. 8.She further stated that the Applicant has not demonstrated how they stand to suffer substantial loss if stay of execution is not granted. 9.The Application was canvassed by way of written submissions as per the directions of the court. The Applicant filed written submissions dated 4th March 2026 while the Respondent filed written submissions dated 4th March 2026. 10.The Applicant submitted that the delay was not inordinate given the circumstances. They relied on the case of Imperial Bank Limited (in receivership) & Another v Alnashir Popat & 18 others [2018] eKLR where the court noted that the threshold for “inordinate” is contextual and the discretion of the court remains wide. 11.They submitted that the delay was occasioned by challenges in tracing and obtaining a copy of the certified judgment. They relied on the case of Samuel Mwaura Muthumbi v Josephine Wanjiru Ngugi & Another [2018] eKLR where the court found that the delay in proceedings was sufficient case. They also cited Hellen Wanza Maeker, Bernard Njoroge Gathua & Another where the court held that delay is excusable where it was contributed by delay in the court registry to provide typed proceedings. 12.The Applicant further submitted that the Respondents have not shown how they will be affected or prejudiced is the Applicant is allowed to appeal out of time. Reliance was placed on the case of Samuel Mwaura Muthumbi v Josephine Wanjiru Ngugi & Another [2018] eKLR where the court held that while statutory timelines are certainly important to ensure the due and efficient administration of justice, they are not in themselves a core substantive value. 13.Lastly, it was submitted that the appeal had high chances of success. They relied on the case of Athuman Nusura Juma v Afwa Mohamed Ramadhan CA No. 227 of 2015 where the court stated that the court should consider whether the intended appeal had chances of success. They further relied on the case of Julius Kamau Kithaka v Waruguru Kithaka Nyaga & 2 Others CA No. 14 of 2013 where the court stated that it is not the role of a single judge to determine definitively the merits of the intended appeal. 14.The Respondents submitted that the Applicant has not invoked Order 40 of the Civil Procedure Rules which lays the basis for grant of orders sought and support their prayers therefore, the application is a nonstarter rendering the application fatally defective. They relied on the case of Wilson Wokabi Mangondu v Joseph Gatheru Njanja [2005] eKLR and Henry Ndungu Kinuthia v Barclays Bank of Kenya & Another [2014] eKLR. 15.It was also submitted that the deponent of the supporting affidavit not being a party to the suit does not have capacity to swear the affidavit and seek the orders sought on behalf of the intended Appellant as no authorization has been adduced. In support of their argument, they relied on the case of Moijo Matanya Ole Keiwa v Chief Justice of Kenya & 6 Others [2008] eKLR. They urged the court to strike out the supporting affidavit while relying on the case of Heywood Ochieng Aseso v Jackson Kimeu Mulinge & 2 Others [2013] eKLR. 16.The Respondents further urged that the Applicant had failed to meet the threshold for grant of stay of execution as the Applicant filed the application after 90 days and the delay had not been satisfactorily explained. In support they relied on the case of Joseph Ngigi Ibare v Myovi James & Another [2016] eKLR where the court stated that even a two days delay ought to be satisfactorily explained. 17.It was further submitted that the application should be dismissed on account that the Applicant had not demonstrated how they will suffer substantial loss. Reliance was placed on the case of Kenya Shell Limited v Kariga [1982-88] 1KAR where the court held that if there is no evidence of substantial loss to the Applicant, it would be a rare case when an appeal would be rendered nugatory by some other event. The Respondent further relied on the following authorities. Lucy Nyamanu Kimani v Lawrence Mburu Muthiga [2006] eKLR; Isaac Muteti Kisua v Felix Mwangi Ndegwa [2016] eKLR; and Caneland Ltd v Malkit Singhpandhal & Another V Delphis Bank Limited [2000] eKLR; 18.On the argument that the respondent may not refund the decretal sum, the Respondent relied on the following cases. Socfinac Company Limited v Nelphat Kimotho Muturi [2013] eKLR; where the court held that the mere fact that an Appellant does not know the Respondent’s financial capability does not give rise to the presumption that the Respondent will be unable to repay the sum;Van De Berg (K) Limited v Charles Osewe Osodo [2015] eKLR where the court held that it is not a burden placed upon the decree holders to prove that they can refund the decretal sum; and,Antoine Ndiaye v African Virtual University [2015] eKLR, where the court held that the onus of proving substantial loss and in effect that the Respondent cannot repay the decretal sum if the appeal is successful lies with the Applicant. 19.On security, Respondents submitted that the Applicant had failed to furnish security for due performance thus warranting dismissal of the application. 20.The Respondents further submitted that the Applicant was undeserving of extension of time as they had not met the criteria set out in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR 21.It was also submitted that the delay has not been satisfactorily explained and the mistake alluded to is not excusable. In this regard, reliance was placed on the case of Joseph Ngigi Ibare v Myovi James & Another [2016] eKLR and Rajesh Rughani v Fifty Investments Limited [2005] eKLR, Three Ways Shipping Services (Group) Ltd v Mitchell Cotts Freighters (K) Ltd [2005] eKLR and Rajesh Rughani v Fifty Investments Limited & Another [2016] eKLR. 22.Having considered the application, the affidavits on record, the submissions by counsel and the applicable law, the issues arising for determination are: -i.Whether the Applicant should be granted leave to appeal out of time.ii.Whether the Applicant has satisfied the conditions for grant of stay of execution pending appeal. Whether leave to appeal out of time should issue 23.The right of appeal from subordinate courts to the High Court is provided for under 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… 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.” 24.The principles upon which our courts exercise the jurisdiction to enlarge time were outlined by the Supreme Court of Kenya in Nicholas Kiptoo Arap Korir Salat Vs. Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR as follows: -i.Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court;ii.A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the courtiii.Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis;iv.Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;v.Whether there will be any prejudice suffered by the respondents if the extension is granted;vi.Whether the application has been brought without undue delay; andvii.Whether in certain cases, like election petitions, public interest should be a consideration for extending time. 25.The power to enlarge time is discretionary and must be exercised judiciously and not capriciously. The principles guiding the exercise of that discretion are now settled. In Mukora Mwangi v Charles Gichina – Civil Application No. Nai 255 of 1997, the Court of Appeal summed up the relevant principle 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 enlargement 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.” 26.The explanation offered by the Applicant is that there was delay in obtaining a copy of the judgment from the trial court. Although no correspondence was annexed demonstrating follow up with the registry, this court takes note of the practical delays that occasionally arise in obtaining typed proceedings and copies of judgments from court registries. 27.More importantly, the delay herein is not so excessive as to shut out the Applicant from the seat of justice. Courts are enjoined under Article 159(2)(d) of the Constitution to administer substantive justice without undue regard to procedural technicalities. 28.On whether the intended appeal is arguable, the court is not required at this stage to make definitive findings on the merits of the appeal. It is sufficient if the Applicant demonstrates that the intended appeal raises bona fide arguable issues deserving consideration by the appellate court. 29.From the draft Memorandum of Appeal, the Applicant challenges the assessment of damages for loss of dependency and the evidential basis upon which the multiplicand was adopted. Those constitute arguable issues fit for consideration on appeal. 30.I am not persuaded that the Respondents will suffer prejudice incapable of compensation by costs if leave is granted. 31.Regarding the objection that the supporting affidavit was sworn without authority, I note that the deponent expressly described herself as a representative of the Applicant company. In any event, courts have consistently held that such defects are procedural and curable. with pleadings is not fatal and can be regularized. 32.Further, Order 9 Rule 2(c) of the Civil Procedure Rules permits a recognized agent of a corporation to act on its behalf. 33.The Respondents also argued that the application is defective for failure to invoke the correct provisions of law. However, it is settled that citing the wrong provisions or failure to cite provisions of law is not fatal where the court has jurisdiction and the substance of the application is clear. In Republic v Public Procurement Administrative Review Board & 2 Others Ex Parte Pelt Security Services Limited [2018] KEHC 2068 KLR the court held that procedural lapses should not override substantive justice. 34.Consequently, I am satisfied that sufficient cause has been shown to warrant extension of time. Whether stay of execution should issue 35.The principles governing stay of execution pending appeal are provided under Order 42 Rule 6(2) of the Civil Procedure Rules which provides that: -“No order for stay of execution shall be made unless—(a)the court is satisfied that substantial loss may result to the 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.” 36.The Applicant must therefore satisfy the conditions of substantial loss, promptitude and provision of security. 37.I have considered the extensive authorities cited to me by the parties, and which I have set out in extenso in this ruling for or against the grant of stay. 38.The Court of Appeal in Butt V Rent Restriction Tribunal [1982] KLR 417 held that the power to grant stay is discretionary and should be exercised in such a manner as not to render an appeal nugatory. 39.The decretal sum herein is substantial. The Applicant contends that unless stay is granted, execution may proceed and the decretal sum may not be recoverable should the appeal succeed. There was however no demonstration that the Respondent was a person of straw and incapable of refunding the sum if the appeal were to succeed. 40.On delay, I have already found that although there was delay, the same was not so inordinate as to disentitle the Applicant to relief. 41.On security, the Applicant did not expressly propose security in the supporting affidavit. Nevertheless, the court retains discretion to impose appropriate terms. 42.In balancing the competing interests of the parties, the court must ensure that the Respondents enjoy the fruits of their judgment while at the same time safeguarding the Applicant’s undoubted right of appeal. It is trite that the purpose of security is to guarantee the due performance of the decree should the appeal fail. See Focin Motorcycle Co. Limited v Ann Wambui Wangui & Another [2018] eKLR. 43.In the circumstances, I find that an order for conditional stay is appropriate. Disposition 44.Consequently, the Notice of Motion dated 9th January 2026 is merited and is hereby allowed on the following terms: -i.Leave is hereby granted to the Applicant to file an appeal out of time against the judgment delivered on 8th September 2025 in Chuka CMCC No. 148 of 2017.ii.The annexed Memorandum of Appeal shall be deemed as duly filed upon payment of the requisite court fees within seven (7) days from the date hereof.iii.There shall be a stay of execution of the judgment and decree pending hearing and determination of the intended appeal on condition that the Applicant deposits the full decretal sum in a joint interest earning account in the names of counsel for the parties within thirty (30) days from the date hereof.iv.In default of compliance with order (iii) above, the stay granted shall automatically lapse.v.Costs of the application shall abide the outcome of the appeal.Orders accordingly. RULING DELIVERED, DATED AND SIGNED AT CHUKA THIS 26TH DAY OF MAY, 2026...........................R. LAGAT - KORIRJUDGERuling delivered in the presence of Mr. Mutua holding brief Mr. Ndungu for Respondents and N/A for the Applicant. Muriuki (Court Assistant.)