https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12372

Modern Coast Express Ltd v Anyanzwa (Civil Appeal E111 of 2024) [2026] KEHC 12372 (KLR) (31 July 2026) (Ruling) Neutral citation: [2026] KEHC 12372 (KLR) Republic of Kenya In the High Court at Mombasa Civil Appeal E111 of 2024 J Ngaah, J July 31, 2026 Between Modern Coast Express Limited Appellant and James Anyanzwa Respondent (Being an appeal from the judgment of Hon. V. Muthoni (RM) delivered on 26 March 2024 in Mombasa Small Claims Court Case No. SCCCOMM/E1006/2023) Ruling The application 1.By a notice of motion dated 1 April 2025 expressed to be brought under Article 159 of the Constitution, Order 42 rule 6 of the Civil Procedure Rules, sections 3A, 63 and 95 of the Civil Procedure Act and the inherent power of the court, the appellant, who is the applicant in the motion, seeks the following orders:a)That the application be certified as urgent and heard ex parte in the first instance;b)That the court be pleased to stay execution of the judgment entered against the appellant and all consequential decrees, orders, proclamations, attachment and execution processes issued upon the judgment of Hon. Viola Muthoni delivered on 26 March 2024 in Mombasa Small Claims Court Case No. SCCCOMM/E1006/2023, pending the hearing and determination of the appeal;c)That the court be pleased to review its orders issued on 19 February 2025 dismissing the appeal and to issue orders reinstating the appeal and admitting it for hearing;d)That upon reinstatement of the appeal, the court be pleased to stay execution of the judgment entered against the appellant and all consequential decrees, orders, proclamations, attachment and execution processes issued in Mombasa Small Claims Court Case No. SCCCOMM/E1006/2023 pending the hearing and determination of the appeal; and,e)That costs of the application be awarded to the appellant. 2.Prayer (a) is spent. The prayers that fall for determination are, in substance, two: whether the appeal, which stood dismissed by operation of the orders of 19 February 2025, ought to be reinstated; and, if so, whether execution of the judgment of the subordinate court ought to be stayed pending the hearing and determination of the appeal. 3.The application is premised on the grounds on its face and is supported by the affidavit of Carren Jeruto, the applicant’s legal officer, sworn on 1 April 2025. Background 4.The brief background to the application is that in a judgment delivered on 26 March 2024 in Mombasa Small Claims Court Case No. SCCCOMM/E1006/2023, judgment was entered against the applicant in favour of the respondent. Aggrieved by that judgment, the applicant preferred the present appeal. On 19 February 2025, this court gave directions requiring the applicant to file and serve its record of appeal within fourteen days. It is common ground that the order was self-executing; in default of compliance, the appeal would stand dismissed without further reference to the court. The fourteen days lapsed on 5 March 2025. The record of appeal was filed on 7 March 2025 and, upon the applicant’s default being noted when the matter came up before the court on 1 April 2025, the appeal was confirmed as having stood dismissed by dint of the self-executing orders. The applicant’s case 5.According to the deponent of the supporting affidavit, upon issuance of the orders of 19 February 2025 the applicant, through its advocates, moved, in her words, “tirelessly” to procure the typed proceedings of the subordinate court. The advocates are said to have previously written to, and made several attempts to contact, the registry for the typed proceedings without success. In this regard, the applicant exhibited, as part of the bundle marked “CJ-1”, a letter dated 24 April 2024 addressed to the Executive Officer of the Small Claims Court at Mombasa requesting copies of the typed proceedings and a certified copy of the judgment. 6.The deponent further averred that the proceedings, which the advocates were informed had been transmitted to the High Court, were eventually procured on 7 March 2025, whereupon the record of appeal was filed and served the same day. It is her deposition that, due to a system glitch in the Judiciary’s Case Tracking System (CTS), the filing of the record of appeal was late by one day, thereby offending the self-executing orders of 19 February 2025, such that the appeal stood dismissed through no fault of the advocates but on account of a system error and the bureaucracy of the court’s own processes. 7.The deponent averred that the applicant has an arguable appeal; that it deposited security in the subordinate court in order to prosecute the appeal; that unless the court intervenes, the respondent, who has since extracted a decree, will attach the applicant’s property and thereby occasion it substantial loss; and that it would be contrary to the constitutional right to a fair hearing to condemn the applicant unheard on account of a mistake that cannot be visited upon it. Finally, she deposed that the application was made without unreasonable delay. The respondent’s case 8.The respondent opposed the application through his replying affidavit sworn on 25 July 2025. His case, as deposed on the advice of his advocates, is that this court issued its orders on 19 February 2025 directing the applicant to file and serve its record of appeal within fourteen days, a direction with which the applicant failed to comply, leading to the dismissal of the appeal. He faulted the applicant for claiming to have moved “tirelessly” to procure the typed proceedings without placing before the court a single shred of evidence of those efforts, and invoked the elementary principle that he who alleges must prove; on that account the applicant was placed under strict proof of its averments. 9.The respondent further deposed that no evidence whatsoever was tendered of the alleged system glitch in the CTS system or of the alleged bureaucratic processes at the registry said to have been the major hindrance to the timely filing of the record; that the applicant, having failed to adhere to the court’s directions, approached equity with unclean hands; and that the applicant was accorded its right to a fair hearing and given sufficient time to file and serve its record of appeal, and cannot now turn around and blame the registry. 10.It was also the respondent’s deposition that the application does not meet the threshold for review under section 80 of the Civil Procedure Act as read with Order 45 of the Civil Procedure Rules, the applicant having demonstrated neither the discovery of new and important matter or evidence, nor a mistake or error apparent on the face of the record, nor any other sufficient reason. He contended, further, that the applicant failed to meet the threshold for injunctive relief set out in Giella v Cassman Brown & Company Limited (1973) EA 358; that the application is a flimsy attempt to deny him the fruits of the decree issued in his favour; and, relying on the decision of the Supreme Court in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others (2014) eKLR (annexed to his affidavit and marked “JA1”), that the applicant failed to prove the existence of extenuating circumstances that would enable the court to exercise its discretion in its favour. He therefore urged the court to dismiss the application with costs. Submissions 11.The application was canvassed by way of written submissions. The applicant’s submissions, drawn by Prof. Albert Mumma & Company Advocates, are dated 14 July 2025 while the respondent’s submissions, drawn by Anyanzwa J.S. Advocates, are dated 28 July 2025. I have considered both sets of submissions together with the authorities cited in them. 12.Counsel for the applicant anchored the prayer for review and reinstatement on section 80 of the Civil Procedure Act and Order 45 rule 1 of the Civil Procedure Rules and, in particular, on the residual ground of “any other sufficient reason”. Relying on In re Estate of Julius Cheruiyot Ngeno (Deceased) (Succession Cause 3 of 2019) [2025] KEHC 572 (KLR) and Macharia v Maina & 3 others (Land Case E015 of 2024) [2025] KEELC 834 (KLR), both of which adopt the construction placed on that phrase by the Supreme Court of India in Ajit Kumar Rath v State of Orissa & others, 9 Supreme Court Cases 596, counsel submitted that the phrase denotes a reason sufficiently analogous to the grounds expressly enumerated in the rule; and, on the authority of Registered Trustees of the Archdiocese of Dar es Salaam v Chairman of Bunju Village Government & others, Civil Appeal No. 47 of 2006, that “sufficient cause” should receive a liberal construction in order to advance substantial justice where no negligence, inaction or want of bona fides is imputed to the party in default. It was submitted that the delay in filing the record of appeal was occasioned by two interrelated obstacles, both beyond the applicant’s control: the bureaucratic delay in procuring the typed proceedings from the registry, compounded by the transfer of the lower court file to the High Court, and a malfunction of the Case Tracking System (CTS) which caused the record to be lodged a day late. These, counsel argued, were structural, systemic failures analogous in gravity to the enumerated grounds, and support was drawn from South Nyanza Sugar Company Limited v Agutu (Civil Appeal E025 of 2023) [2024] KEHC 2924 (KLR), in which the court accepted a malfunction of the CTS as sufficient explanation for an appeal filed a day out of time. Counsel emphasised that the review application was filed on 1 April 2025, the very day the dismissal was confirmed, and invoked article 159(2)(d) of the Constitution and sections 1A and 1B of the Civil Procedure Act in urging that systemic failures ought not to be allowed to extinguish the right of appeal. 13.On the prayer for stay of execution, counsel relied on Order 42 rule 6(2) of the Civil Procedure Rules and on RWW v EKW [2019] KEHC 6523 (KLR) for the proposition that the purpose of a stay pending appeal is to preserve the subject matter of the dispute so that the appeal, if successful, is not rendered nugatory, the court balancing the appellant’s right of appeal against the decree-holder’s entitlement to the fruits of his judgment. Reference was also made to Abdi v Ahmed (Civil Appeal E007 of 2024) [2024] KEHC 11514 (KLR) for the proposition that unless an appeal is completely hopeless, a litigant should be facilitated to exhaust his legal remedies on appeal to the highest level possible. On the facts, counsel submitted that on 14 May 2025 Icon Auctioneers, acting on the instructions of the respondent, proclaimed the applicant’s assets in pursuit of the decretal sum of Kshs 72,220, inclusive of costs and interest; that the auctioneers have threatened to attach the applicant’s motor vehicles, which are integral to the day-to-day operations of its business; and that unless a stay is granted, the appeal will be reduced to an academic exercise and the applicant, which had already deposited security in compliance with the orders of the lower court, will suffer disproportionate and irreparable prejudice. 14.For the respondent, it was submitted that the application satisfies none of the three grounds upon which review may be granted. Citing Republic v Public Procurement Administrative Review Board & 2 others [2018] eKLR, Ajit Kumar Rath (supra), Tokesi Mambili and others v Simion Litsanga (2004) eKLR and Paul Mwaniki v National Hospital Insurance Fund Board of Management [2020] eKLR, counsel submitted that the applicant has neither demonstrated the discovery of new and important matter or evidence, nor pointed to any mistake or error apparent on the face of the record, nor advanced any reason sufficiently analogous to those grounds. Invoking sections 107 and 112 of the Evidence Act, the decision of the Court of Appeal in Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & another [2005] 1 EA 334 and the learned authors of Halsbury’s Laws of England, counsel submitted that he who alleges must prove; that the applicant tendered no evidence of the alleged bureaucracy at the registry, no correspondence with either the Small Claims Court registry or the High Court registry concerning the transfer of the lower court file, and no evidence at all of the alleged malfunction of the e-filing platform; and that it therefore failed to discharge the burden of proof cast upon it in law. 15.Counsel further invited the court to find the applicant guilty of inordinate delay. Relying on Utalii Transport Company Limited & 3 others v NIC Bank Limited & another [2014] eKLR, where inordinate delay was described as delay of such an amount as leads the court to the inescapable conclusion that it is inordinate and therefore inexcusable, regard being had to all the surrounding circumstances including the reason for the delay, counsel submitted that the solitary follow-up letter exhibited by the applicant, written about a year before the dismissal of the appeal and long since overtaken by events, cannot be surmised to be sufficient evidence of the “prompt and sustained efforts” the applicant claims to have made to obtain the certified copies of the proceedings and judgment. 16.On the prayer for stay of execution, counsel cited Antoine Ndiaye v African Virtual University (2015) eKLR and Order 42 rule 6(2) of the Civil Procedure Rules and submitted that the three conditions prescribed by the rule are conjunctive and must be satisfied simultaneously: Njenga v Njeri & 2 others (Civil Appeal E125 of 2023) [2023] KEHC 23991 (KLR). It was submitted, first, that the decree in issue is a money decree and that, on the authority of Kenya Shell Limited v Benjamin Karuga Kibiru & another [1986] eKLR, Machira t/a Machira & Co. Advocates v East African Standard (No. 2) (2002) KLR 63, James Wangalwa & another v Agnes Naliaka Cheseto [2012] eKLR and Mutua Kilonzo v Kioko David Machakos [2008] eKLR, the mere setting in motion of the process of execution – even attachment and sale of the judgment debtor’s properties – does not, by itself, amount to substantial loss, execution being a lawful process; the applicant was required, and failed, to persuade the court that the respondent is a person of no means from whom it would be difficult or impossible to recover the decretal sum in the event the appeal succeeds. Secondly, counsel submitted that the applicant has not furnished security, in that it disobeyed the orders made by Hon. Justice Julius K. Ng’arng’ar on 23 July 2024 directing it to deposit the entire decretal sum in an interest-earning account in the joint names of the advocates on record; that the requirement of security is mandatory: Arun C. Sharma v Ashana Raikundalia t/a Rairundalia & Co. Advocates & 2 others [2014] eKLR and Gianfranco Manenthi & another v Africa Merchant Assurance Company Ltd [2019] eKLR; and that the applicant’s disobedience of a lawful court order disentitles it, on the principle that he who comes to equity must come with clean hands, from the equitable remedies it now seeks: Ali v Nyang’ao (Civil Appeal E010 of 2024) [2024] KEHC 8319 (KLR) and Caliph Properties Limited v Barbel Sharma & another [2015] eKLR. The court was accordingly urged to dismiss the application with costs and to allow the respondent to proceed with execution unless the entire claim is settled. Analysis and determination 17.I have considered the application, the grounds on its face, the rival affidavits and the material exhibited to them. Two issues fall for determination: first, whether sufficient cause has been shown for the court to review or set aside its orders of 19 February 2025 and the consequent dismissal of the appeal, and to reinstate the appeal; and secondly, if the first issue is answered in the affirmative, whether execution of the judgment and decree of the subordinate court ought to be stayed pending the hearing and determination of the appeal. 18.The starting point is the nature of the orders of 19 February 2025. Those orders were peremptory and self-executing: upon the lapse of fourteen days without the record of appeal having been filed and served, the appeal stood dismissed automatically, without any further order of the court. Computed in accordance with Order 50 rule 1 of the Civil Procedure Rules, the time limited by the orders lapsed on 5 March 2025. The record of appeal on the court’s file bears a filing stamp of 7 March 2025. It follows that, as at 6 March 2025, the appeal already stood dismissed, and the proceedings of 1 April 2025 did no more than confirm a state of affairs that had crystallised by operation of the court’s own orders. 19.Once an appeal stands dismissed in that manner, the court is, for all practical purposes, functus officio in respect of the appeal and can only revisit the dismissal in the exercise of its power of review under section 80 of the Civil Procedure Act as read with Order 45 rule 1 of the Civil Procedure Rules, or of its inherent power under section 3A of the Act to make such orders as may be necessary for the ends of justice. The applicant has invoked both. Order 45 rule 1 avails review to a party aggrieved by a decree or order upon the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced at the material time; or on account of some mistake or error apparent on the face of the record; or for any other sufficient reason. The applicant’s case, as I understand it, rests on the residual limb of “any other sufficient reason”: it seeks to explain, and be excused for, its failure to comply with the orders of 19 February 2025 within the time limited. 20.The principles that guide the court in considering whether to excuse such a default are well settled. The discretion is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error, but not to assist a person who has deliberately sought, by whatever means, to obstruct or delay the course of justice: Shah v Mbogo & another (1968) EA 93. In Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others (supra), on which the respondent relies, the Supreme Court restated the principles applicable where a party seeks the court’s indulgence in respect of time, holding, among other things, that:“… it is clear that the discretion to extend time is indeed unfettered. It is incumbent upon the applicant to explain the reasons for delay in making the application for extension and whether there are any extenuating circumstances that can enable the Court to exercise its discretion in favour of the applicant.”The Supreme Court distilled the applicable considerations to include that extension of time is not a right of a party but an equitable remedy available only to a deserving party at the discretion of the court; that the party seeking the indulgence bears the burden of laying a basis to the satisfaction of the court; that the discretion is exercised on a case-by-case basis; that the delay must be reasonably explained to the satisfaction of the court; that the court must consider whether any prejudice will be suffered by the respondent if the indulgence is granted; and that the application must itself have been brought without undue delay. 21.The applicant’s explanation for the default has two limbs: the difficulty in procuring the typed proceedings from the subordinate court, and a glitch in the CTS e-filing system said to have delayed the filing of the record by one day. The respondent’s criticism of the evidentiary foundation of both limbs is not without force. The only documentary evidence exhibited in support of the first limb is the letter of 24 April 2024 requesting the typed proceedings and a certified copy of the judgment. That letter predates the directions of 19 February 2025 by close to ten months, and no correspondence, attendance note or other material was placed before the court evidencing any follow-up between the issuance of those directions and the lapse of the time limited by them. As for the alleged system glitch, no evidence at all – no error message, rejection notice, screenshot or correspondence with the registry or the Judiciary’s ICT directorate – was exhibited. Indeed, the second limb does not, on the applicant’s own arithmetic, carry its case very far: time lapsed on 5 March 2025, yet on the deponent’s own account the proceedings were only procured on 7 March 2025, so that even absent any glitch the record could not have been filed in time. For the same reason, South Nyanza Sugar Company Limited v Agutu (supra), on which the applicant placed considerable reliance, does not advance its case: in that decision the malfunction of the CTS was the sole and immediate cause of the one-day delay in filing, whereas here the alleged glitch, even if it had been proved, was not the operative cause of the default. 22.That said, the letter of 24 April 2024 is not without significance. It demonstrates that the applicant requested the typed proceedings within a month of the delivery of the judgment sought to be appealed from, and it lends credence – in part, at least – to the applicant’s narrative that the proceedings were not readily forthcoming from the registry; the deposition that the advocates were at one point informed that the lower court file had been transmitted to the High Court, thereby complicating its tracing, was not controverted. It is also not in dispute that the record of appeal was, in fact, filed and served on 7 March 2025 – two days out of time – and well before the matter was next placed before the court on 1 April 2025. This, then, is not the case of a party that sat on its hands, ignored the court’s directions altogether and only stirred when confronted with the consequences of its indolence; it is the case of a party that substantially, albeit belatedly, complied. 23.The default in issue was, in the end, a default of two days. The consequence of declining the indulgence sought would be to shut the applicant out of the seat of justice altogether and to terminate the appeal, not on its merits, but on account of that marginal procedural lapse. As was observed in Philip Chemwolo & another v Augustine Kubende (1986) KLR 495, blunders will continue to be made from time to time, and it does not follow that because a mistake has been made a party should suffer the penalty of not having his case determined on its merits. Article 159(2)(d) of the Constitution likewise enjoins the court to administer justice without undue regard to procedural technicalities, although, as the Supreme Court cautioned in the Salat case, that principle is not a panacea to be invoked in disregard of the rules of court, and each case must be considered within the context of its own peculiar circumstances. 24.Weighing these considerations against each other, I am persuaded, on the peculiar circumstances of this case, that sufficient reason has been shown within the meaning of Order 45 rule 1 of the Civil Procedure Rules. The delay of two days was marginal; it has been explained, if imperfectly, by the difficulty in procuring the typed proceedings, a difficulty of which there is at least some contemporaneous documentary evidence; the record of appeal was in fact filed and served before the dismissal was confirmed; the application for reinstatement was brought on the very day the dismissal was confirmed, and therefore without any delay at all; and no prejudice has been demonstrated by the respondent that cannot be remedied by an award of costs and by securing the decretal sum pending the appeal. There is no material from which I can conclude that the applicant’s default was deliberate or contumelious. On the other hand, the indulgence the applicant seeks is an equitable remedy, and equity must run both ways: the respondent, who holds a regular judgment in his favour, ought not to be kept out of its fruits without adequate protection, and the applicant must bear the costs occasioned by its own default. 25.Turning to the prayer for stay of execution pending appeal, the conditions upon which the order may be granted are prescribed by Order 42 rule 6(2) of the Civil Procedure Rules: the court must be satisfied that substantial loss may result to the applicant unless the order is made; the application must have been made without unreasonable delay; and such security as the court orders for the due performance of the decree must be given by the applicant. Counsel were agreed, correctly in my view, that the three conditions are conjunctive and must be satisfied simultaneously. The second condition presents no difficulty: the application was, as I have already found, brought on the very day the dismissal of the appeal was confirmed and, therefore, without unreasonable delay. 26.On substantial loss, the respondent is right that the decree in issue is a money decree and that, on the authorities he cited – Kenya Shell Limited v Benjamin Karuga Kibiru & another (supra), Machira t/a Machira & Co. Advocates v East African Standard (supra) and James Wangalwa & another v Agnes Naliaka Cheseto (supra) – the mere fact that the process of execution has been put in motion does not, by itself, amount to substantial loss, execution being a lawful process; and the applicant, it is true, has not deposed, in terms, that the respondent would be unable to refund the decretal sum were the appeal to succeed. But that is not the end of the matter. The decretal sum is a modest Kshs 72,220. The process presently in motion – and the fact of the proclamation was not disputed; the respondent’s answer was only that proclamation does not of itself amount to substantial loss – is the proclamation and threatened attachment of the applicant’s motor vehicles, assets whose value may well far exceed the decretal sum and which are said to be integral to the day-to-day operations of the applicant’s transport business. The attachment and sale of such assets in satisfaction of so modest a decree, while an arguable appeal against that very decree is pending, would visit upon the applicant a harm wholly disproportionate to the respondent’s legitimate interest, which is simply to be assured of payment should the appeal fail. The object of a stay, as the court observed in RWW v EKW (supra), is to preserve the subject matter of the dispute so that the appeal, if successful, is not rendered nugatory, while at the same time ensuring that the successful litigant is not kept out of the fruits of his judgment without adequate protection. In a money decree of this size, both objects are met by an order securing the decretal sum pending the appeal rather than by leaving execution to run its course. 27.That leaves the question of security and, with it, the respondent’s submission that the applicant approaches the court with unclean hands. The applicant’s deposition was that it deposited security in the subordinate court in order to prosecute its appeal. The respondent, for his part, contended in his submissions – though the point was not taken in the replying affidavit – that the applicant disobeyed orders made in this appeal on 23 July 2024 directing it to deposit the entire decretal sum in an interest-earning account in the joint names of the advocates on record. Submissions are not evidence, and it is unnecessary, for the purposes of this ruling, to resolve the controversy, because the order I propose to make is conditional in terms that ensure that the decretal sum is secured in any event: if security in the full amount of the decretal sum is already in place, it will remain so pending the determination of the appeal; if it is not, the applicant will be required to deposit the decretal sum as a condition of the stay, in default of which the stay will lapse and the respondent will be at liberty to execute. An order in those terms answers the respondent’s legitimate complaint that the decree in his favour has remained unsecured, without shutting the applicant out of the appellate process; and such grievance as remains over the applicant’s conduct of the appeal is adequately met by the order I propose to make on costs. Disposition 28.In the result, the notice of motion dated 1 April 2025 is allowed in the following terms:a)The orders of 19 February 2025, to the extent that the appeal stood dismissed thereunder for non-compliance, are hereby reviewed and set aside, and the appeal is reinstated for hearing and determination on its merits;b)The record of appeal filed on 7 March 2025 is deemed to have been duly filed and served;c)Execution of the judgment and decree in Mombasa Small Claims Court Case No. SCCCOMM/E1006/2023 is hereby stayed pending the hearing and determination of the appeal, on condition that the security deposited by the applicant in the subordinate court shall remain in place pending the determination of the appeal; and, if no such security has been deposited or the security deposited is less than the decretal sum, on condition that the applicant deposits the decretal sum in an interest-earning account in the joint names of the advocates for the parties within thirty (30) days of the date of this ruling, in default of which the stay shall lapse;d)The appeal shall be set down for directions on a priority basis; and,e)The costs of the application shall be borne by the applicant and are awarded to the respondent in any event. 29.It is so ordered. SIGNED, DATED AND DELIVERED ON 31 JULY 2026NGAAH JAIRUSJUDGE