https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9975

**** **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KABARNET** **HCCA NO. E005 OF 2026** JACOB KALI MWANGI………………………………………….…APPELLANT **VERSUS** GLADWEL JEPKORIR MUGE ………………………………….RESPONDENT (SUING AS THE LEGAL REPRESENTATIVE ON BEHALF OF THE ESTATE OF NICHOLAS KAIMOI KAMBECH-DECEASED) **RULING** 1. Before me is the Notice of Motion dated 4/5/2026. 2. The application is brought under Sections 1A, 1B, 3A, 63(e), 79G and 95 of the Civil Procedure Act, Order 42 Rule 6, Order 22, Rule (22) of the Civil Procedure Rules 2010, Article 159, Sub-Article (2) (d) & (e) of the Constitution of Kenya and all other Enabling Provisions of the Law. 3. It seeks prayers:- 4. –Spent. 5. –Spent. 6. THAT this Honourable Court be pleased to enlarge time for filing an appeal against the judgment of the Honourable Court delivered against the Appellant /Applicant herein on 13th March, 2026 in Kabarnet Chief Magistrate’s Court Civil Case No. E048 of 2024 and the Memorandum of appeal attached to this application be deemed as duly filed and the same to be served upon the Respondent. 7. **THAT** this Honourable Court be pleased to order stay of execution of the judgment delivered against the Appellant/Applicant herein on 13th March, 2026 in Kabarnet Chief Magistrate’s Court Civil Case No. E048 of 2024, the resultant decree, and all consequential orders therein pending the hearing and determination of the Appeal. 8. **THAT** the costs of this Application be provided for. 9. The application is supported by the affidavit sworn by Dolphin Moindi on 4/5/2026, and the grounds on its face. 10. The grounds are mainly that:- 11. **THAT on 13th March 2026, Judgment was entered against the Appellant/Applicant herein in Kabarnet Chief Magistrate’s Court Civil Case No. E048 of 2024 in the following terms: Liability in the ration of 90:10% against the Appellant/Applicants, Ksh. 4,380,024/= for loss of dependency: Kes. 200,000/= for loss of expectation of life: Kes. 100,000/= for pain and suffering and Kes. 272,000/= for special damages, les 10% contribution totaling to Ksh. 4,456,822/=** **4. THAT the delay in filing the appeal by the Appellant /Applicant is not inordinate and was occasioned by the time taken in undertaking extensive consultations between the Appellant, being the insured owner of the subject motor vehicle registration number KDE 182N, and its regarding the reasoning of the trial court in arriving at the decretal sum of Kshs. 4,456,822 plus costs of the suit and interests.** 1. It is deponed that the applicant is ready, willing and able to deposit such security as the court may order – in court or in a joint interest earning account – for the due performance of the decree. 2. The application is objected by the replying affidavit of Gladwell Jepkorir Muge – the respondent. She depones that there is no appeal before the court as per section 79G of the CPA. That Judgment was delivered on 13/3/2026 – and no good reasons has been given for the delay – and the application cannot be cured by Article 159(2)(d) of the Constitution. 3. The application was argued orally. 4. Ms. Wanjiru for the applicant relied on section 79G of the CPA arguing that they were late past the 30 days by 20 days due to consultations. That they were ordered to pay the sum of Ksh. 1.5 million and were in the process of compliance – that the respondent had not filled the form sent to effect the transfer of funds. Mr. Mathai for the respondent submits that no reasonable explanation has been given for the delay – no evidence, even of correspondence between the insurer and insured. That the appeal ought to have been filed within 30 days but they were late by another 20 days - yet no reasonable explanation had been given. That the applicant had counsel who ought to have filed the appeal – that the application had not met the threshold of Order 42 Rule 6. 5. Further that the respondent could not avail form CR 13 due to internal changes in the form, hence the reason for the applicant’s failure to comply. 6. I have carefully considered the application, the rival submissions and affidavits. This court is required to balance the applicant’s right of appeal, and the respondent’s right of a successful litigant to enjoy the fruits of his judgment. 7. Upon perusal of the draft memorandum of appeal, the appeal is against quantum and liability – it appears to me that it is not pedestrian. 8. In the circumstances the application is allowed in the following terms:- 9. There be leave to file appeal out of time not later than 14 from 6th July 2026. 10. There be stay of execution of the Judgment of the subordinate court pending the hearing and determination of the appeal. 11. That the sum of Ksh. 1 Million be paid to the respondent within 30 days .That the balance of the decretal sum be deposited in a joint interest earning account in the name of both counsel within 45 days. Time will run from 6th July 2026. 12. That in default .of 3 above the stay of execution will lapse, and execution to issue. 13. That the matter be mentioned before Deputy Registrar within 30 days hereof for compliance on filling of Record of Appeal. 14. Costs to abide to appeal. RULING dated, signed and delivered virtually at Kabarnet High Court this 3rd July 2026 **MUMBUA T MATHEKA** **JUDGE** **In the presence of**:- CA Gladys /Momanyi Ms. Wanjiru for Applicant Ms. Orikodi for the respondent