https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6933

Muthike v Nzusu (Miscellaneous Civil Application E189 of 2025) [2026] KEHC 6933 (KLR) (19 May 2026) (Ruling) Neutral citation: [2026] KEHC 6933 (KLR) Republic of Kenya In the High Court at Machakos Miscellaneous Civil Application E189 of 2025 NIO Adagi, J May 19, 2026 Between Esther Nyawira Muthike Intended Appellant and Japheth Kioko Nzusu Respondent Ruling 1.This ruling is on the Applicant’s Notice of Motion application dated 18th June, 2025 seeking for the following Orders:a.Spentb.Spentc.That this honourable court be pleased to stay execution of the judgment and decree in Kithimani Principal Magistrate Court Civil Suit No. E45 of 2023 Japheth Kioko Nzusu Vs Esther Nvawira Muthike pending the hearing and determination of this application.d.That this honourable court be pleased to extends time for filing the appeal and grant leave to the Applicant/lntended Appellant to appeal out of time against the Judgement delivered on the June 2025 by the Honourable Magistrate P. Wechuli, Principal Magistrate, in Kithimani Principal Magistrate Court Civil Suit No. E45 of 2023 Japheth Kioko Nzusu Vs Esther Npawira Muthike.e.That the costs of this Application abide the outcome of the intended Appeal. 2.The application is supported by the affidavit of John Mwangi Mwai, advocate for the applicant and is based on the following grounds :--a.That the Respondent commenced a running down suit Kithimani Principal Magistrate Court Civil Suit No. E45 of 2023 Japheth Kioko Nzusu Vs Esther Nvawira Muthike claiming special and general damages for pain and suffering, reduced/diminished earning capacity, cost of prosthesis and future replacement of the same plus costs and interests.b.That when the matter was filed in Court and the Applicant herein was served with the Plaint and Summons to Enter Appearance, she took the documents to Cannon General Insurance, who were the insurance company that had insured her car, KCF 088A.c.That Cannon General Insurance, through their Advocates, M. W. Muli & Company Advocates took over the matter on behalf of the Applicant herein where they entered appearance and defended the suit whereupon Judgement was entered on June, 2024 in favour of Respondent as prayed in his Plaint.d.That the Insurance advocates who were acting for the Applicant in the matter neither informed the Applicant anything about the proceedings nor did they inform the Applicant of the outcome of the matter after the judgement.e.That later on the Appellant, through her insurance agent learnt that the matter was concluded and that judgement was entered against the Appellant and the insurance settled the claim to the tune of Kshs.3,199,372 and the Agent showed the Appellant a letter from the Insurance Advocates to the Respondent's Advocate as a settlement of the claim with the letter stating "We attach consents marking the matter as settled". The Appellant thought that was all and she was happy.f.That on 17th June, 2025, the Applicant herein received warrants of attachment and proclamation of attachment notice from Vintage Auctioneers with instructions to recover Kshs.1,846,744 being the balance of the decretal amount in Kithimani Principal Magistrate Court Civil Suit No. E45 of 2023 Japheth Kioko Nzusu Vs Esther Npawira Muthike.g.It was after the Applicant contacted her Advocates on record in this Application that she got a copy of the judgement and the Applicant herein is aggrieved with the judgement of the trial court and seeks leave to appeal out of time.h.It was then the Applicant herein learnt that the total decretal sum in the suit at the subordinate court was Kshs.4,260, 608 and a Decree was issued on 28th February 2025 with a total decretal sum being Kshs.5,000,647, information which we verified from the courts record.i.That Canon Insurance settled only part of the claim, Kshs.3,199,372 but never disclosed to the Appellant that there was an unsettled claim of Kshs.1,864,744 which the Appellant was required to pay from her pocket.j.That the Appellant is aggrieved by the judgement passed at the trial court and though the time to appeal lapsed on 13th July 2024 hence this application for leave to appeal out of time.k.That the delay in filing the appeal is not inordinate and but was occasioned by the insurance advocate's failure to communicate the judgement delivery and the outcome therein in good time.l.That the Applicant had comprehensively insured the subject matter motor vehicle and the intended appeal has a very high chance of success.m.That no prejudice will be suffered by the Respondent if leave to appeal the judgement of the trial court out of time is granted simultaneously with orders of stay pending appeal, especially due to the fact that the Respondent has received substantial amount of the decretal sum.n.That the Plaintiff/Respondent has commenced execution of the judgement and has issued warrants of attachment and has proclaimed property owned by the Applicant.o.This application is timely made and without any unnecessary delay and the Applicant/lntended Appellant stands to suffer a substantial and irreparable loss and damage if the trial court's judgement is not successfully stayed and appealed.p.Unless this application is heard exparte in the first instance and eventually allowed, the Applicant/lntended Appellant intended appeal will be rendered nugatory and severely abrogate the Applicant/lntended Appellant's right of appeal.q.The intended appeal raises substantial questions of law and it's important that the High Court gives its position on it. 3.The application is opposed by Japheth Kioko Nzusu, the Respondent vide his replying affidavit sworn on 30th June 2025. The Respondent avers that he has read the Applicant’s application dated 18.06.2025 together with the supporting affidavit of John Mwangi Mwai and their contents have been explained to him by his advocates on record, and in response and in objection to the application the Respondent has cited various cases and argue that the said application is incompetent, misconceived bad in law and ought to be struck out. He believes the application is solely meant to further delay the enjoyment of the fruits of his judgment, and the same should be dismissed with costs. 4.The Respondent avers that he is advised by his advocates on record, which advice he verily believe to be true and correct, that the deponent of the supporting affidavit being an advocate has sworn an affidavit relating to a contentious matter, which offends the rules of practice, and thus the affidavit should be struck out. The Respondent contends that the deponent has deponed to matters that are not within his personal knowledge, which offends the provisions of Order 19 Rule 3; and thus, the supporting affidavit should be struck out. 5.The Respondent also avers that the application is fatally defective and thus ought to be struck out as it's a nonstarter for flouting the obvious civil procedure rules and practice, therefore, should be dismissed. That Order 40 of the Civil Procedure Rules for extension of stay of execution. Parties are bound by their pleadings and therefore, the applicant should not be allowed to depart from the same. 6.The Respondent further avers that the genesis of this suit is an accident that occurred on the 16.09.2021 at around 10:00 p.m., the Plaintiff/Respondent's was lawfully driving motor vehicle registration number KCW 264A along Matuu- Thika Road at Kwa Majini area when either the Defendant/Applicant or her employee, servant, agent and/or authorized driver so carelessly and negligently drove motor vehicle registration number KCF 088A that she caused and/or permitted the same to lose control and violently collide with motor vehicle registration number KCW 264A. 7.That though both the court and the Respondent are not privy to the issues raised by the Applicant, the mistake alluded to is not inadvertent, parties should follow up on their suit. It is not enough for a party in litigation to simply blame the advocate on record for all manner of transgressions in the conduct of litigation. Parties have a responsibility to show interest in and follow up their cases. It is insufficient to blame counsel on record without an explanation as to the action taken by the litigant. The Applicant has legal redress against the said advocate and insurer. 8.The Respondent states that when judgment was delivered on 13.06.2024 the same was in the presence of the then applicants advocate, the applicant was further informed of the said judgment in good time on 03.07.2024. The Applicant was granted a stay of execution of forty-five (45) days which lapsed and no appeal was filed within the prescribed timeline in law and that the memorandum of appeal attached in the application therein is not filed. 9.The Respondent’s position is that in any event an appeal is filed, the same cannot be rendered nugatory by a money decree being satisfied by payment particularly where substantial loss has not been demonstrated, and therefore, the Applicant’s appeal will not be rendered nugatory if stay is not granted. 10.That this application was filed on 18.06.2025, 348 days after stay of execution of the judgment lapsed on 28.07.2024, the Applicant has not bothered to explain the delay satisfactorily for the Court to exercise its discretion. 11.The Respondents argues that he will be greatly prejudiced if the prayers sought in this application are granted, not only will it delay the enjoyment of the fruits of the successful litigation as he requires monies for future medical expenses and also to buy the prosthesis as was indicated during trial on 16.11.2023 in Kithimani PMCC E045 of 2023. 12.That to date the judgment delivered on 16.11.2023 has not been reviewed, appealed and/or set aside and hence the same is regular, binding, enforceable and/or lawful and when the Applicant failed, refused, rejected, declined, absconded and/or neglected to remit the decretal sum, execution proceeding against the Applicant were initiated and the said execution pleadings were all procured lawfully and the process too was legal. The Applicant has not bothered to explain why he failed to file the instant application in time and the Applicant has been twiddling his thumbs and it is only when execution is imminent that he has moved to action, simply to frustrate the Respondent’s efforts at realizing the fruits of his judgment, and in such regard there is no merit in the application and it should be dismissed. 13.That in addition, the Applicant has failed to meet the threshold set under Order 42 Rule 6(2) of the Civil Procedure Rules for grant of stay of execution. 14.The application was canvassed by way of written submissions and both parties filed their respective submissions. Those submissions replicate the summary above and I wish not to duplicate the same here. Analysis and determination 15.I have considered the application, the supporting affidavit, the replying affidavit, the further affidavit and the rival submissions filed by the Parties’ counsel as well as the judicial decisions relied upon. In my view, the issues for determination are as follows:-a.Whether the supporting affidavit sworn by the Applicant’s advocate ought to be struck out.b.Whether the court should exercise its discretion to grant the applicant leave to file her appeal out of time;c.Whether the applicant has met the prerequisite for grant of stay of execution pending appeal; a. Whether the supporting affidavit sworn by the Applicant’s advocate ought to be struck out. 16.In his replying Affidavit sworn on 30th July 2025, the Responded has deponed that the Supporting Affidavit sworn by the Applicant’s Advocate is in contravention of the rules of procedure and the principle that advocates should not enter into the arena by swearing affidavits on contentious matters of fact. It is further contended that the advocate has therefore made himself a viable witness for cross examination in the case which he is handling merely as an agent which is irregular. The Respondent contends that the deponent has deponed to matters that are not within his personal knowledge, which offends the provisions of Order 19 Rule 3; and thus, the supporting affidavit should be struck out. Reliance was placed on the case of East African Foundry Works (K) Ltd Vs Kenya Commercial Bank Ltd [2002] 1 KLR 443 at 446. 17.However and contrary to the averments by the Respondent, the Applicant submits that it is trite law that an Advocate of the High Court can swear an affidavit on non-contentious issues of facts on behalf of his Client as held in Salama Beach Ltd v Mario Rossi, CA. No. 10 of 2015 and the same was reiterated in Kwacha Communications Limited & Another v Pindoria Holdings Limited & another [2022] eKLR where it was stated that an affidavit sworn by an Advocate that is limited to facts which he/she is capable of proving on his own knowledge and does not disclose any issue necessitating his/her cross-examination is not flawed. 18.It is worth noting that as a deponent advocate in the supporting affidavit, only deponed to facts strictly within his knowledge and information as gained through reading the law, the court judgment in this particular case and various correspondences exchanged between the insurance Advocates and the Respondent’s Advocates consenting to marking the matter in the trial court as settled. The Affidavit only raised issues of law and fact which were within the Advocates knowledge and information. 19.The instant application, being an application in an appeal, the advocate was competent enough to swear an affidavit in support of his client’s cause as matters pertaining to an application for leave to file an appeal out of time under Section 79G of the Civil Procedure Act are purely matters of law and supported by facts which are within the advocate’s personal knowledge. 20.In the Replying Affidavit, the Respondent did not point out which paragraph in the supporting affidavit offends the law or rules of procedure. An affidavit cannot be unsustainable by mere allegations and narrations. There is no law that bars an advocate from swearing an affidavit in a client’s cause, on matters which he as an advocate has personal knowledge of. Order 19 Rule 3 of the Civil Procedure Rules provides that:3 (1)Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove. 21.The Respondent has not been shown that the said affidavit of the Applicant’s advocate offends this rule. 22.In Kamlesh M.A. Pattni – Vs – Nasir Ibrahim Ali & 2 Others CA 354/2004, the Court of Appeal while dealing with a serious objection on the admissibility of an affidavit sworn by an advocate held inter alia:“... There is otherwise no express prohibition against an advocate who, of his own knowledge can prove some facts, to state them in an affidavit on behalf of his client, so too an advocate who cannot readily find his client but has information the sources of which he can disclose and state the grounds for believing the information...” 23.Accordingly, this court finds the arguments by the Respondent in his replying affidavit that the Applicant’s supporting affidavit offends Order 19 Rule 3 is not only wrong and misplaced but is unsustainable. This argument is disallowed as it lacks merit. b. out of time; 24.It is trite law that an appeal from the subordinate Court to the High Court may be admitted out of time as far as the Applicant satisfies the Court that she had good and sufficient cause for not filing the appeal in time. 25.Section 79G of the Civil Procedure Act states: -“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 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. 26.It is clear from the wording of Section 79G of the Civil Procedure Act that before the court considers extension of time, the applicant must satisfy the court that that she has good and sufficient cause for filing the appeal out of time. This principle was enunciated in the case of Diplack Kenya Limited vs William Muthama Kitonyi [2018] eKLR that an applicant seeking enlargement of time to file an appeal or admission of an already filed appeal must show that he/she has a good cause for doing so. 27.The Supreme Court in the case of Nicholas Kiptoo Korir arap Salat vs IEBC and 7 Others [2014] eKLR enunciated the principles applicable in an application for leave to appeal out of time. The court stated inter alia that:-“The underlying principles a court should consider in exercise of such discretion should include:-a.Extension of time is not a right of any party. It is an equitable remedy that is only available to a deserving party at the discretion of the court;b.A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;c.Whether the court should exercise the discretion to extend time, is a consideration to be made on a case by case basis;d.Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;e.Whether there will be any prejudice suffered by the respondent if the extension is granted;f.Whether the application has been brought without undue delay. 28.Similarly in the case of Paul Musili Wambua vs Attorney General & 2 Others [2015] eKLR, the Court of Appeal in considering an application for extension of time and leave to file the Notice of Appeal out of time stated the following:-“…….it is now settled by a long line of authorities by this court that the decision of whether or not to extend the time for filing an appeal the Judge exercises unfettered discretion. However, in the exercise of such discretion, the court must act upon reason(s) not based on whim or caprice. In general, the matters which a court takes into account in deciding whether or not to grant an extension of time are; the length of delay, the reason for the delay, the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the application is granted.” 29.Applying the above principles to the present case, the judgment herein was delivered on 13.06.2024 and the appeal ought to have been filed by 13.07.2024. The Applicant filed the current application dated 18.06.2025 together with the annexed Memorandum of Appeal on 19.06.2025 which were filed 348 days after the lapse of the appeal window. The Applicant has attributed the delay in filing its appeal to the reason that the Advocates on record had made consents marking the matter as settled. No where did the Applicant know that there was a balance of decretal amount that remained unsettled because the correspondence between the advocates stated … “we attach consents marking the matter as settled”. That the Applicant’s Advocate during the hearing at the trial court did not take time to let the Applicant know that there was some unpaid decretal sum by the insurance. Indeed, the failure by the Applicant to appeal the decision of the lower court in time was purely caused by the insurance advocates inadvertence. 30.In Itute Ngui & Anor vs. Isumail Mwakavi Mwendwa Civil Application No. Nai. 166 of 1997, Omolo, JA held that whereas advocate’s bona fide error is a special reason for extension of time within which to appeal, the nature and quality of the mistake must be considered. It is therefore clear that whereas inadvertence may be a ground for extension of time, the nature and quality of the inadvertence must be disclosed for consideration by the Court. 31.In this case, this court finds that the Applicant has clearly expounded on the nature and quality of the inadvertence alluded to the advocates of both parties consenting that the matter had been fully settled. 32.In Phillip Keipto Chemwolo & another V Augustine Kibende [1986] KLR 495 the Court of Appeal stated that:“Blunders will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of having his case determined on its merits.” 33.Further, in the case of Banco Arabe Espanol V Bank of Uganda [1999] 2 EA 22 it was held that:“The administration of justice should normally require that the substance of all disputes should be investigated and decided on their merits and that errors, lapses should not necessarily debar a litigant from the pursuant of his rights and unless lack of adherence to rules renders the appeal process difficult and inoperative. It should seem that the main purpose of litigation, namely, the hearing and determination of disputes should be fostered rather than hindered” 34.In Factory Guards Limited V Abel Vundi Kitungi it was stated that the right of appeal should not be impeded as it is a constitutional right and the cornerstone of the rule of law. Where there is delay which is explained and the court accepts that explanation in order to render substantive justice and to facilitate access to justice for all by ensuring that deserving litigants are not shut out of the judgment seat, such leave should be granted. 35.On whether the Applicant delayed inordinately before filing her application, it is significant to state that the delay for failing to appeal on time is inordinate but the same was not deliberate as it came about when the need to make an appeal unfolded after new facts emerged to the Applicant. 36.In Factory Guards Limited v Abel Vundi Kitungi 2014KEHC879 (KLR) it was stated as follows;“The policy for this court is to apply the principle of the rule of law and exercise latitude in its interpretation of the rules so as to facilitate just determination of disputes on merit and thus facilitate access to justice for all by ensuring that deserving litigants are not shut out of the judgment seat. 37.There is no prejudice and none has been exhibited, that is likely to be occasioned to the Respondent if leave to appeal is granted at this point. 38.Although I consider the 348 days delay to be inordinate delay, this court finds the reasons for the delay to have been satisfactorily explained to the court as required by the law. In my view, the Applicant has given plausible reasons for the delay in filing the appeal. 39.I have perused the draft Memorandum of Appeal and the judgment of the trial court and noted that the appeal faults the trial court on assessment of damages which the Applicant claims to be excessively high. As such, the appeal cannot be said to be without merit although at this juncture, I will restrain from delving into the merits of the appeal. It is my view that the Applicant ought to be given a chance to file her appeal out of time and prosecute it on merits. c. Whether the applicant has met the prerequisite for grant of stay of execution pending appeal; 40.It is trite law that an appeal does not operate as an automatic stay of execution. The conditions which a party must establish in order for the court to order stay of execution are provided for under Order 42 Rule 6(2) Civil Procedure Rules. Order 42 Rule 6 of the Civil Procedure Rules stipulates:-1.No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but the court appealed from may for sufficient cause order stay of execution of such decree or order and whether the application for such stay shall have been granted or refused by the court appealed from the court to which such appeal is preferred shall be at liberty on application being made to consider such application and to make such order thereon as may to it seem just and any person aggrieved by an order of stay made by the court from whose decision the Appeal is preferred may apply to the appellate court to have such orders set aside.2.No order for stay of execution shall be made under sub rule 1 unless:-a.The Court is satisfied that substantial loss may result to the 1st Applicant unless the order is made and that the application has been made without unreasonable delay; andb.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. 41.Thus, under Order 42 Rule 6(2) of the Civil Procedure Rules, an applicant should satisfy the court that:1.Substantial loss may result to him/her unless the order is made;2.That the application has been made without unreasonable delay; and3.The applicant has given such security as the court orders for the due performance of such decree or order as may ultimately be binding on him. 42.Substantial loss was clearly explained in the case of James Wangalwa & Another vs Agnes Naliaka Cheseto [2012] eKLR:-“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” 43.This court is alive to the fact that execution is a lawful process and it is not a ground for granting stay of execution. The Applicant is required to show the manner in which execution will irreparably affect her or will alter the status quo to her detriment therefore rendering the appeal nugatory. 44.Although the Applicant has sought for stay of execution of the judgement and decree of the subordinate court, she did not attempt to submit on the same. In the grounds to the application, the Applicant states that execution has commenced and the Respondent has issued warrants of attachment and has proclaimed the Applicant’s property wherefore the Applicant stands to suffer a substantial and irreparable loss and damage if stay of execution is denied. Further that the appeal will be rendered nugatory and severely abrogate the Applicant’s right of appeal. 45.On the issue of security for costs, the purpose of security was explained in the case of Arun C. Sharma vs Ashana Raikundalia t/a Raikundalia & Co. Advocates & 2 Others [2014] eKLR the court stated:-“The purpose of the security needed under Order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the applicant. It is not to punish the judgment debtor…..Civil process is quite different because in civil process the judgment is like a debt hence the applicants become and are judgment debtors in relation to the respondent. That is why any security given under Order 42 Rule 6 of the Civil Procedure Rules acts as security for the due performance of such decree or order as may ultimately be binding on the applicants. I presume the security must be one which can serve that purpose. 46.Evidently, the issue of security is discretionary and it is upon the court to determine it and set its terms. The applicant has failed to furnish such security for costs. 47.It is imperative that the right of appeal must be balanced against an equally weighty rigid right of the plaintiff/claimant to enjoy the fruits of the judgment delivered in his/her favour. In the case of Samvir Trustee Limited vs Guardian Bank Limited [2007] eKLR the court stated:-“The Court in considering whether to grant or refuse an application for stay is empowered to see whether there exist any special circumstances which can sway the discretion of the court in a particular manner. But the yardstick is for the court to balance or weigh the scales of justice by ensuring that an appeal is not rendered nugatory while at the same time ensuring that a successful party is not impeded from the enjoyment of the fruits of his judgment. It is a fundamental factor to bear in mind that a successful party is prima facie entitled to fruits of his judgment; hence the consequence of a judgment is that it has defined the rights of a party with definitive conclusion.” 48.Consequently, I do find that the Appellant/Applicant is entitled to leave to appeal out of time and to pursue the appeal on merit. I do allow the application dated 18.06.2025 and make the following orders:-a.Leave is granted to the Applicant/Intended Appellant to file appeal out of time against the judgment delivered in Kithimani Principal Magistrate Court Civil Suit No. E45 of 2023- Japheth Kioko Nzusu Vs Esther Nvawira Muthike.b.The Applicant/Intended Appellant shall file and serve her Memorandum of Appeal as per the attached draft within Seven (7) days hereof and thereafter to compile, file and serve the Record of Appeal within Forty-Five (45) days of this ruling in default, appropriate directions shall be given on the matter including dismissal of the appeal.c.Execution of the Judgment/decree in Kithimani Principal Magistrate Court Civil Suit No. E45 of 2023 Japheth Kioko Nzusu Vs Esther Nvawira Muthike is hereby stayed pending the hearing and determination of the appeal on condition that the Applicant/Intended Appellant shall deposit half the outstanding decretal amount into court OR into a joint interest earning Bank account to be opened in a reputable Bank in the names of the Advocates for parties law firms within forty five (45) days hereof in default the Respondent will be at liberty to execute.d.The Applicant/Intended Appellant shall pay to the Respondent throw away costs of this application assessed at Kshs.20,000/= as well as any Auctioneers official charges so far incurred herein.e.A mention date to be fixed to confirm compliance with order b, c and d above and for further directions. 49.This Miscellaneous file will be closed on the next mention date. 50.It is hereby so ordered. RULING WRITTEN, DATED & SIGNED AT MACHAKOS THIS 19TH MAY 2026NOEL I. ADAGIJUDGE