https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9678

Moi Teaching and Referral Hospital & 3 others v Chepkosgei & 3 others (Petition 15 of 2019) [2026] KEHC 9678 (KLR) (6 July 2026) (Ruling) Neutral citation: [2026] KEHC 9678 (KLR) Republic of Kenya In the High Court at Eldoret Petition 15 of 2019 RN Nyakundi, J July 6, 2026 IN THE MATTER OF VIOLATION OF THE CONSTITUTION OF KENYA,2010 AND IN THE MATTER OF CRIMINAL PROCEEDINGS IN THE CHIEF MAGISTRATE'S CRIMINAL CASE NO.1980 OF 2019 AND IN THE MATTER OF THE MATTER OF THE PERSONS DEPRIVED OF LIBERTY ACT NO.23 OF 2014 AND IN THE MATTER OF PRISONS ACT CAP 90 AND IN THE MATTER OF PUBLIC HEALTH ACT Between Moi Teaching And Referral Hospital 1st Respondent Director Of Public Prosecution 2nd Respondent The Attorney General 3rd Respondent Commissioner General, Kenya Prison Service 4th Respondent and Shieys Chepkosgei Petitioner and Andamka Afrika Justice Initiative 1st Interested Party Kenya Human Rights Commission 2nd Interested Party Kenya Christian Profesional Forum 3rd Interested Party Ruling 1.Before this Court is Notice of Motion application dated 19th November 2025 brought under Order 42, Rules 1, 2, 3, 5, 6 and Order 51 of the Civil Procedure Rules, Section 3A of the Civil Procedure Act and all other Enabling Provisions of the Law where the Applicant is seeking for the following orders:a.That this application be heard ex-parte in the first instance and as a matter of urgency on the ground, inter alia, that execution of the judgement and all consequential orders on the 12th August 2025 against the 4th Respondent/Applicant is imminent.b.That the 4th Respondent/Applicant is a party to a pending appeal lodged by both the 2nd and the 3rd respondents on 15th August 2025 against the whole decision of the trial Court and as such will be affected in one way or another with the outcome of the appeal.c.That this Honourable Court do order a stay of proceedings in the Eldoret High Court Case number HC.PET/15/2019 pending the hearing this application inter parties and the appeal.d.that the costs of this application be provided for. 2.The application is grounded on the following grounds:-a.That the 4th Respondent/Applicant has an arguable appeal with a high probability of success.b.That if the said stay of execution is not granted, the 4th Respondent/Applicant's appeal will be rendered nugatory and the Applicant will suffer irreparable damage.c.THAT unless this application is granted, the Petitioner threatens to levy execution against the 4th Respondent/Applicant.d.That the 4th Respondent/Applicant is ready and willing to deposit a bank guarantee to this Honourable Court as security for stay of execution pending the determination of the appeale.That substantial loss will result to the 4th Respondent/Applicant unless the orders sought are granted.f.That this application has been made without unreasonable delayg.That the application ought to be granted in the interest of equity and justice 3.The petition is supported by an affidavit sworn by Josphat Mutuma Kirima Advocate in conduct of this matter who depones as follows:a.That on 12th August 2025, a judgment was delivered against the Respondents in which the 4th Respondent/Applicant was ordered to pay Ksh 400,000/= to the Petitioner.b.That the Applicant being aggrieved and dissatisfied with the said judgment instructed its department to file an appeal against the judgment.c.That the 4th Respondent/Applicant’s advocate on record was on annual leave by the time the instructions of appeal were issued.d.That its only when he was served with an execution of decree letter by the Petitioner’s Advocate dated 14th November 2025 that it turned to him that the appeal had not been filed.e.That it was purely a mis-communication error and an inadvertent mistake on the part of the inter-governmental departments within the 4th Respondent/Applicant’s institution that led to the appeal not being lodged on time.f.That the 4th Respondent/Applicant is a party to a pending appeal lodged by both the 2nd and 3rd Respondents against the whole decision of the trial Court and as such will be affected in one way or another with the outcome of the appeal.g.That the 4th Respondent/Applicant has also filed an application for leave to be allowed to file its appeal out of time and it will be rendered nugatory if the orders sought herein are not granted.h.That the Respondent’s means of income are unknown and presumably insufficient as they were not attested to at the trial neither as she attached any affidavit of means in the appeal and as such, it cannot be guaranteed that the Petitioner will be in a position to refund the decretal sum should the appeal succeed.i.That the appeal raises triable issues with high chances of success.j.That the 4th Respondent/Applicant is a National Teaching and Referral Hospital, a government institution funded by the National Treasury and it can make good the decretal sum and thus if the court deems it necessary, it is willing to provide a bank guarantee as security for stay of execution pending the determination of the appeal.k.That in view of the forgoing, unless the application for stay is heard urgently, on a priority basis, the Petitioner threatens to levy execution against the Applicant which will in effect render the appeal nugatory and the Applicant will suffer irreparable loss and damage.l.That I swear this affidavit in support of the application annexed hereto by the 4th Respondent/Applicant seeking orders that the Notice of Motion application be heard as a matter of extreme urgency.m.That being condemned to pay without being heard on appeal already filed by the 2nd and the 3rd Respondents tantamount to being condemned unheard and is a travesty to justice.n.That what is deponed hereinabove is true to the best of my knowledge save as to the matters deponed to on information sources whereof have been disclosed and matters deponed to on behalf whereupon the grounds have been given. 4.In response to this application the Respondent filed grounds of opposition premised as follows:a.The 4th Respondent never required leave to appeal from the judgment of 12/8/2025, which was a matter of right under the provisions of Sections 66 and 75 of the Civil Procedure Act 2010 and Order 43(1) of the Civil Procedure Rules 2010.b.The application as drawn and framed does not make any prayer for extension of time and the Court cannot correctly grant that which has not been prayed for. In any event, such a prayer is unavailable, as shown below:c.Extension of time within which to file an appeal is a preserve of an appellate court, in this case, the Court of Appeal under Rule 4 of the Court of Appeal Rules 2022. For an appeal intended to be filed before the Court of Appeal, this High Court lacks jurisdiction to contemplate any enlargement of time under Order 50, rule 6 of the Civil Procedure Rules 2010.d.Without a draft memorandum of appeal, this court has no logical way to establish whether the intended appeal is arguable, and cannot on the basis of that remote likelihood open the way for a belated notice of appeal.e.The application was filed after a long and inordinate delay, which has not been adequately explained.f.In balancing the scales of justice, they tilt in favour of denying the orders sought as the Petitioner will suffer immense prejudice if the application were allowed at this stage, over 5 months post-judgment.g.The 4th Respondent will suffer no prejudice as it can still participate in the appeal filed by the Attorney General.h.No notice of appeal has been annexed to the application, for adoption, and none can be deemed to be duly filed.i.This Court has no jurisdiction to issue directions on the canvassing of any appeal at the Court of Appeal, a preserve of the Court of Appeal under Rule 25 of its Rules.j.No Court can rightly require the Petitioner to file a pleading in response to an intended or filed notice of appeal, as this would contradict the applicable provisions of the Court of Appeal Rules 2022 and ignores the firm and welcome jurisprudence in National Land Commission v Johnson Okiru Misiga KECA 1007 (KLR).k.The Civil Procedure Rules categorically require an applicant for enlargement of time to pay costs. 5.In furtherance to this application the Petitioner filed other grounds of opposition dated 5th March 2026 which expressly stated as follows:a.The application as drawn and framed does not make any prayer for stay of execution. The prayer sought is one of stay of proceedings, which this Court cannot correctly grant by virtue of being functus officio having rendered its judgment on 12/8/2025.b.In any case, an order of stay of execution of the judgment dated 12/8/2025 is unavailable for the following reasons:c.In the absence of a notice of appeal, and the fact that the 4th Respondent has no right to appeal the time having lapsed, granting stay of execution pending some intended appeal would be in vain.d.Even if leave to file a notice of appeal was granted, which is opposed, the threshold for stay of execution under Order 42, rule 6 (2) (a) of the Civil Procedure Rules 2010 has not been met, as follows: a. The 4th Respondent has not shown any substantial loss they might suffer if the application was declined. b. The application was filed very late in the day, 3 months after the judgment, and no satisfactory explanation has been advanced.e.This court cannot rightly find that the Petitioner is incapable of refunding the decretal sum based solely on the presumption proposed by the 4th Respondent.f.Nothing in the application supports any stay orders to further keep or delay the successful Petitioner from enjoying the fruits of the judgment.g.Without prejudice, the 4th Respondent ought to provide reasonable, sufficient, and acceptable security for due performance. We propose that the 4th Respondent deposits the decretal sum of Kshs. 400,000/= into an interest-earning bank account jointly-held in the names of the 4th Respondent, or its Advocate, and the Petitioner’s Advocates to better guarantee the full benefits of the fruits of judgment as intended under Order 42, rule 6(2)(b) of the Civil Procedure Rules 2010. 6.I have considered the application and the corresponding affidavits and grounds of opposition and it is my singular duty to reappraise the matter with a view of making a determination. Decision 7.Generally, the law is very clear as outlined in the Civil Procedure Act and Rules 2010 and any other corresponding amendments that before an appeal can be heard there are certain procedural steps to be taken and these are:a.The filing of a memorandum of appeal signed in the same manner as a pleading – Order 41, Rule 1 of the Civil Procedure Rules.b.Particulars of the appeal shall be entered in the register of appeals – Order 41, Rule 8(1).c.The appeal is placed before a Judge for admission or rejection under Section 79B of the Civil Procedure Act.d.If the Judge admits the appeal then the Registrar shall notify the Appellant who shall serve the memorandum of appeal on every Respondent – Order 41, Rule 8A.e.Not less than 21 days after service of the memorandum of appeal, the Registrar shall list the appeal for giving of directions by a Judge in chambers – Order 41, Rule 8B(1).f.Thereafter the appeal is set down for hearing once the Judge is satisfied that all the documents listened in Order 41, Rule 8B(4) have been served on either party; of the day for hearing of the appeal has been served on the Respondent in the manner set out of the Order 41, Rule 10A(11). 8.The application herein is on two fronts. First and foremost, extension of time for the intended Appellant to fine his appeal outside the prescribed timelines. Secondly, is on the aspect of stay of execution pending an appeal which is scheduled to be canvassed before the Court of Appeal. In pari materia the Court in Stephen Mbatia Muya v Lydia Njoki Gathungu, Nairobi Civil Application Number 74 of 2009 made the following observation:“In an application by way of notice of motion under Rule 4 of the Court of Appeal Rules, it is settled law that the Court’s decision whether or not to extend time is essentially discretionary. It is also settled that in general considerations which the Court takes into account before making a decision to extend time are first the length of the delay, the reasons for it, possibly chances of the appeal succeeding if the application is granted and lastly, the degree of prejudice to the respondent if the application is granted. These considerations are, or course, not exhaustive. 9.The Court of Appeal in another forum addressed this issue and pronounced itself in the case of in Paul Wanjohi Mathenge v Duncan Gichane Mathenge [2013] eKLR as follows:“The discretion under rule 4 is unfettered, but it has to be exercised judicially, not on whim, sympathy or caprice. I take note that in exercising my discretion I ought to be guided by consideration of the factors stated in previous decisions of this Court including, but not limited to, the period of delay, the reasons for the delay, the degree of prejudice to the respondent and interested parties if the application is granted, and whether the matter raises issues of public importance. In Henry Mukora Mwangi v Charles Gichina Mwangi-Civil Application No. Nai 26 of 2004, this Court held:-"It has been stated time and again that in an application under rule 4 of the Rules the learned single Judge is called upon to exercise his discretion which discretion is unfettered. It may be appropriate to re-emphasize this principle by referring to the decision in Mwangi v Kenya Airways Ltd. [2003] KLR 486 in which this Court stated:-"Over the years, the Court has, of course set out guidelines on what a single Judge should consider when dealing with an application for extension of time under rule 4 of the Rules. For instance in Leo Sila Mutiso-vs-Rose Hellen Wangari Mwangi-Civil Application No Nai.255 of 1997 (unreported), the Court expressed itself thus:-"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. 10.I have reviewed the evidence in so far as this notice of motion is concerned and the reasons given by the Applicant and in view of the fact that this is a constitutional petition with unique features and characteristics leave be and is hereby granted for the Court of Appeal to lay hands on the grievances raised by the Appellant so as to enrich the progressive jurisprudence in this area of law. I find no evidence that the right of appeal would prejudice or occasion injustice to the Petitioner/Respondent. As a consequence thereof the notice of appeal so intended shall be filed and shared with all the parties who have been part of this discourse in entrenching constitutionalism in our country. 11.It therefore follows that pursuant to this application and in terms of Order 42 Rule 6(1) (2) of the Civil Procedure Rules, there shall be stay of execution of the Judgment so as not to render the appeal nugatory. The costs of this application shall abide the outcome of the appeal. DATED, DELIVERED AND PUBLISHED VIA CTS AT ELDORET THIS 6TH DAY OF JULY 2026.………………………….……….R. NYAKUNDIJUDGE