https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11096

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MOMBASA** **COMMERCIAL APPEAL NO. E015 OF 2026** **NCBA BANK KENYA PLC…………………………………APPELLANT/APPLICANT** **VERSUS** **JURGEN FUKS……………………………………………….……….1ST RESPONDENT** **STEPHEN KIMANI MUTURI……………………………….………2ND RESPONDENT** **RULING** 1. The Applicant moved this Court vide a Notice of Motion dated 21st May, 2026 seeking the following orders: *The time for filing an appeal be extended, and the Memorandum of Appeal dated 20th May 2026 and filed on 21st May 2026 be deemed to have been properly filed within such extended time.* *There be a stay of execution of the judgment delivered on 23rd July 2025 and any resultant decree, pending the hearing and determination of this appeal.* *The costs of this application be in the appeal.* 1. The application is premised on the grounds set out on the face of the motion and factual averments contained in the Supporting Affidavit of Christine Wahome sworn on 21st May, 2026. 2. The Judgment of the trial court, delivered on 23rd July 2025, aggrieved the Applicant and intends to challenge the same on appeal. 3. The Memorandum of Appeal was filed on 21st May 2026, well outside the period prescribed under Section 79G of the Civil Procedure Act, necessitating the present application for an extension of time. 4. The Applicant averred that the delay was occasioned by a breakdown in its relationship with its former counsel on record, Wairimu Mureithi & Company Advocates. 5. The Applicant stated that the relationship deteriorated to the extent that the said advocates instituted taxation proceedings against it, which culminated in a Ruling delivered on 24th April 2026 striking out the Bill of Costs. 6. The Applicant maintained that its relationship manager for the said firm, Olive Nyaga, left the Appellant's employment abruptly, without a proper handover of the files under her charge. 7. The Appellant deponed that it only became aware of the Judgment when the 1st Respondent served a copy of the Judgment on 24th February 2026. 8. The Applicant further deponed that upon learning of the Judgment, it immediately instructed its current advocates to take over the conduct of the matter. 9. It averred that, owing to its inability to access the pleadings from its former advocates, the current advocates had to obtain copies from the court file. 10. The Applicant stated that its current advocates were unable to access the court file and consequently wrote to the Executive Officer seeking assistance in tracing the file. 11. It was further averred that on 4th May 2026, the court file was ultimately traced and copies of the pleadings obtained. 12. Thereafter, the Applicant’s current advocates rendered a legal opinion on the matter. 13. The Applicant further averred that despite the intended appeal, the 1st Respondent had threatened both orally and in writing to proceed to execute a self-determined sum of Kshs. 2,665,358.00/= 14. The Applicant contended that if execution proceeds, it will suffer substantial loss because the 1st Respondent had previously sworn an affidavit stating that he has no other vehicle, he has also defaulted in paying rent and described himself as “elderly and of fragile health.” 15. The Applicant maintained that the 1st Respondent’s ability to refund the decretal sum of Kshs. 2,665,358.00/= should the appeal succeed, is doubtful. 16. The Applicant submitted that if the appeal succeeds and it is unable to recover the decretal sum, the intended appeal will be rendered nugatory. 17. The Applicant further averred that the 1st Respondent will not be prejudiced by the stay of execution pending appeal as the ultimate decretal amount continues to accrue interest, thus cushioning the 1st Respondent from any diminution in the award. 18. It further averred that it is a profitable tier one commercial bank capable of satisfying the decretal sum should the appeal fail. 19. The Applicant undertook to file the Record of Appeal expeditiously and prosecute the appeal without delay. 20. The Applicant maintained that it is ready and willing to furnish security for the due performance of the decree by issuing a guarantee in favour of the 1st Respondent for the full decretal amount. 21. The Applicant further averred that the application was brought without unreasonable delay given the circumstances explained. 22. The Applicant maintained that it is in the interests of justice and fairness that the application be heard expeditiously and the order sought granted. 23. The Application is opposed through the Replying Affidavit of **Jurgen Fuks** sworn on 2nd June 2026. 24. The 1st Respondent deponed that the Judgment was delivered on 25th July 2025 and that the Memorandum of Appeal was filed outside the statutory period prescribed for filing appeals. 25. He further averred that the Memorandum of Appeal was filed approximately 299 days after delivery of the Judgment and the delay he contended was inordinate. 26. He averred that the Applicant attributed the delay to a breakdown in its relationship with its former advocates, **Wairimu Mureithi & Company Advocates,** and to the departure of its employee, Ms Olive Nyaga, who handled the relationship with their erstwhile legal counsel. 27. The 1st Respondent further deponed that the Applicant failed to exhibit any correspondence, inquiry or communication with its former advocates demonstrating that it had actively followed up on the matter between 23rd July 2025 and February 2026. 28. He maintained that the Applicant further failed to exhibit any documentary or other credible evidence to demonstrate that Ms. Olive Nyaga either abruptly left its employment or, in the alternative, to disclose the exact date when she allegedly ceased being its employee, thereby leaving a material gap in the explanation advanced for the delay. 29. He further deponed that it is difficult to accept that a matter involving a substantial Judgment debt against a tier-one financial institution could have remained unattended for such an extended period without any internal escalation, monitoring or legal audit. 30. The 1st Respondent further contended that, even accepting the Applicant’s assertion that it became aware of the Judgment on 24th February 2026, no immediate steps were taken thereafter and the present application was only filed approximately three months later, which delay also remains unexplained. 31. He further deponed that the application for stay of execution is defective as it is not founded upon a valid appeal before the Court. 32. The 1st Respondent contended that the Applicant failed to explain the continued delay after allegedly becoming aware of the Judgment and that such delay demonstrated a lack of diligence in pursuing its appellate rights. 33. The 1st Respondent further averred that the present application is merely a reaction to the impending execution of the decree rather than a prompt and genuine attempt to pursue the intended appeal. 34. The 1st Respondent deponed that he is an elderly person of fragile health and has been kept out of the fruits of his Judgment for a considerable period, owing to the Applicant’s failure to take timely steps to challenge the same. 35. The Applicant and Respondent filed rival written submissions in support of their respective positions. 36. The Applicant submitted that the Court may admit an appeal filed out of time notwithstanding that the application for extension of time is made after the appeal has been filed, relying on the decision in *Charles Karanja Kiiru v Charles Githinji Muigwa [2017] KECA 131 (KLR).* 37. It was further submitted that, in determining whether to extend time, the Court ought to consider the period of delay, the explanation offered for the delay and the prejudice likely to be occasioned to the Respondent if the application is granted. 38. The Applicant further submitted that what constitutes unreasonable delay depends on the circumstances of each case, as the law does not prescribe a minimum or maximum period of delay, and in support thereof relied on *Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet* [2019] KECA 701 (KLR). 39. The Applicant further submitted that each period of delay had been satisfactorily explained and that the reason for delay was neither deliberate nor inordinate. 40. The Applicant further submitted that, on the issue of prejudice, although it appreciated the 1st Respondent's frustration, the only prejudice likely to be suffered was the ordinary delay attendant to the appellate process, which every litigant must contend with in pursuing justice. 41. In support of that proposition, it relied on *Belinda Murai & 9 Others v Amos Wainaina* *[1979] KECA 25 (KLR).* 42. It further submitted that the Applicant was ready and willing to furnish security for the due performance of the decree by way of a guarantee should the Court be inclined to grant the orders sought. 43. The Applicant submitted that the 1st Respondent had previously deponed that he had no other motor vehicle, had defaulted in paying rent and was elderly and of fragile health. 44. The Applicant contended that there was a likelihood that the decretal sum would not be recoverable if the intended appeal succeeded, and relied on *National Industrial Credit Bank Ltd v Aquinas Francis Wasike & Another* [2006] KECA 333 (KLR) 45. The 1st Respondent submitted that the application had not satisfied the threshold for extension of time under Section 79G of the Civil Procedure Act as the delay of approximately 299 days was inordinate and had not been satisfactorily explained. 46. **I**t was further submitted that the explanations advanced by the Applicant regarding its former advocates and the departure of its employee were unsupported by documentary evidence and therefore did not constitute good and sufficient cause for the delay. 47. The 1st Respondent maintained that the Applicant had failed to satisfy the conditions for the grant of a stay of execution as it had not demonstrated that it would suffer substantial loss and that the application was only prompted by the threat of execution. 48. It was further submitted that the Respondent, being an elderly, sick and vulnerable individual, stood to suffer grave prejudice if the orders sought were granted, particularly in light of his precarious state of health and financial circumstances. The 1st Respondent urged the Court to dismiss the application with costs. 49. I have considered the Notice of Motion, the affidavits on record and the submissions filed as well as the authorities cited. 50. In my view, the following issues arise for determination: whether the court should exercise its discretion to grant the applicant leave to file his appeal out of time. Whether the Appellant has satisfied the conditions for the grant of an order of stay of execution pending appeal. 51. The first issue for determination is whether the Appellant has established sufficient cause to warrant the extension of time within which to file the intended appeal. 52. Section 79G of the Civil Procedure Act provides that every appeal from a subordinate court to the High Court shall be filed within 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. 53. The principles governing the exercise of the Court's discretion in applications for extension of time are well established. In *Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014]* *eKLR,* the Court stated as follows: *“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;* *A party who seeks extension of time has the burden of laying a basis to the satisfaction of the court.* *Whether the court should exercise the discretion to extend time is a consideration to be made on a case-to-case basis;* *Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;* *Whether there will be any prejudice suffered by the respondents if the extension is granted;* *Whether the application has been brought without undue delay;* 1. Applying the above principles to the present case, the Judgment sought to be appealed from was delivered on 23rd July 2025; the appeal therefore ought to have been filed by 23rd August 2025. 2. The application seeking to extend time was filed on 21st May 2026, approximately nine months later, which is evidently an inordinate period of delay. 3. The Applicant principally attributed the delay to the breakdown of its relationship with its former advocates, Wairimu Mureithi & Company Advocates, and the abrupt departure of one of its employees who was managing the relationship with the said advocates, thereby occasioning a disruption in handling the matter 4. The Applicant further contended that upon becoming aware of the Judgment, it immediately instructed its current advocates to take over the conduct of the matter. 5. However, owing to the unavailability of the lower court file, the current advocates encountered difficulty in obtaining the pleadings and were constrained to seek the intervention of the Executive Officer before the file was traced and a legal opinion rendered. 6. As the litigant in the suit, the Applicant ought to have demonstrated diligence in keeping abreast of the conduct of its case which was actively before court. 7. I find the Applicant’s explanation about the breakdown in its relationship with the firm of advocates that previously represented it plausible: I have read the ruling of the Taxing Officer which is in and of itself indicative and corroborative of that allegation. 8. It is not uncommon for advocates who have disagreed with their clients to exercise a lien over the client files and, in certain instances, not communicate on the case, particularly if the disagreement is over legal fees. 9. I find that the explanation for the delay from February to May by the Applicant to be tentative, but considering the period of slightly over two months, I don’t believe it too inordinate as to justify shutting a party from the seat of justice. 10. The 1st Respondent, on the other hand, has deposed that he is an elderly person of fragile health who has endured prolonged delay in enjoying the fruits of a lawful judgment. 11. I have considered that the claim arose from wrongful auction of the 1st Respondent’s vehicle, which the trial court held the Applicant liable for. 12. I have considered that the Applicant has stated as one of the grounds in support of the motion that the 1st Respondent swore an affidavit stating that he has no other vehicle. 13. I have considered the memorandum of appeal which proposes to challenge the decision of the trial court both on findings of fact and the law, which, if successful, may reverse the entire decision of the trial court. 14. Considering the totality of the circumstances of the case and balancing the rights of the parties, I find that this is a case where the Applicant may be granted an extension of time under certain terms. 15. The second issue for determination is whether the Appellant has satisfied the conditions for the grant of an order of stay of execution pending appeal 16. The conditions which a party must establish for the court to order a stay of execution are provided for under Order 42 Rule 6 (2) of the Civil Procedure Rules. 17. These are that: substantial loss may result to him/her unless the order is made; that the application has been made without unreasonable delay; and 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. 18. Substantial loss was clearly explained in the case of James Wangalwa and 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 where 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 Civil Procedure Rules. This is 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..”* 1. The applicant has cited the 1st Respondent’s averment that he has no other vehicle, that he has defaulted in paying rent, that he has indicated that he is elderly and fragile in health, and that consequently the 1st Respondent’s ability to refund or refund without difficulty the sum of Kshs 2,665, 358 if it is paid out to him is highly doubtful. 2. The applicant has expressed the view that if the appeal succeeds and it is unable to, or finds difficulty in recovering the decretal amount, the success of the appeal will be a mere academic exercise. 3. Age and frailty do not necessarily establish inability to refund; if anything, they strengthen the 1st Respondent’s argument that he should enjoy the fruits of judgment without unnecessary delay. 4. I have perused the judgment of the trial court where it was established that the 1st Respondent’s car was attached and sold partly because he failed to fulfil his loan obligations on time; that, to my mind, is a material factor which should weigh in the mind of the court. 5. I find that the applicant's concern on the 1st Respondent’s ability to refund if paid is not without merit and that substantial loss may ensue. 6. I find that the fact that the 1st Respondent is desirous or has initiated the process of execution is not determinative of the application. 7. It is trite law that execution is a lawful process and is not a ground for granting a stay of execution; the applicant must demonstrate the manner in which execution will irreparably affect it or alter the *status quo* to their detriment, therefore rendering the appeal nugatory. 8. From the judgment of the trial court, it appears that the 1st Respondent settled his accounts with the bank after his vehicle had been transferred to a third party, and that having discharged his loan, the trial court ordered the applicant to pay the 1st Respondent the value of his vehicle, which the bank, having sold to a third party, was in no position to return. 9. On unreasonable delay, the delay was for about two to three months, considering that I find the delay from delivery of judgment to information of the judgment by the 1st Respondent was excused by the broken relationship with the Applicant’s erstwhile legal counsel as evidenced by the taxation of the advocate-client bill of costs between the two, which I don’t believe should shut the applicant entirely from the seat of justice in preferring an appeal. 10. On the issue of security, the applicant has offered to provide a guarantee in favour of the 1st Respondent for the full decretal amount. 11. The issue of security is discretionary, and it is upon the court to determine it and set its terms. 12. In 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 exists 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 the fruits of his judgment; hence the consequence of a judgment is that it has defined the rights of a party with definitive conclusion”* 1. Balancing the respective rights of the parties and the peculiar circumstances of this case, I am inclined to grant the applicant an extension of time within which to file its memorandum of appeal. 2. I am also inclined to grant the Applicant a stay of execution of the judgment and orders of the Mombasa Chief Magistrate’s Court in CMCC No. 1302 of 2023 (Hon. J.B.Kalo CM) dated 23rd July 2025 on condition that the Applicant pays the 1st Respondent within the next 30 days one half of the decretal sum and issues an unconditional and irrevocable bank guarantee for the other half of the decretal amount. 3. Considering the decision of the Supreme Court in Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR)*,* which determined that the practice of filing documents outside the stipulated time and seeking to have them deemed as having been filed is illegal, which decision I am under a legal obligation to follow, consequently I find that the Appeal was improperly filed and ought to be expunged. Consequently, I order as follows: * 1. The Memorandum of Appeal filed on 20th May 2026 be and is hereby struck out for having been filed without leave of the Court outside the stipulated time. 2. Leave be and is hereby granted to the Appellant to file and serve the Memorandum of Appeal out of time within seven (7) days from the date of this Ruling; 3. There shall be a stay of execution of the Judgment and Decree of the Mombasa Chief Magistrate’s Court in CMCC No. 1302 of 2023 (Hon. J.B. Kalo CM) dated 23rd July 2025 pending the hearing and determination of the intended appeal. 4. The stay of execution granted in (c) above is conditional upon the Applicant paying the 1st Respondent within the next 30 days one half of the decretal sum and issuing to the court a bank guarantee for the due performance of the other half of the decretal amount; in default, the order of stay shall automatically lapse without any further step from the court. 5. The costs of this application shall abide by the outcome of the appeal. Dated, signed and delivered virtually via Microsoft Teams at Mombasa this 23rd day of July 2026 **Emmanuel Bitta** **Judge of the High Court**