https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7819

Nibble Century Holding Ltd v Kenya Power & Lighting Company Ltd (Miscellaneous Civil Application E055 of 2025) [2026] KEHC 7819 (KLR) (28 May 2026) (Ruling) Neutral citation: [2026] KEHC 7819 (KLR) Republic of Kenya In the High Court at Kisumu Miscellaneous Civil Application E055 of 2025 JM Omido, J May 28, 2026 Between Nibble Century Holding Ltd Applicant and Kenya Power & Lighting Company Ltd Respondent Ruling A. The Notice of Motion Dated 8th April, 2025. 1.The Applicant’s notice of motion dated 8th April, 2025 is expressed to be brought under Sections 3A, 63(e), 79G, 95 and 63 of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules and all other enabling provisions of law and seeks the following orders:a.[Spent].b.[Spent].c.That the Honourable Court be pleased to grant leave and extend time to the Applicant to file its Appeal out of time in respect of the judgment delivered on 27th November, 2024 by Hon. Douglas Ogoti in Kisumu CMCC No. 322 of 2017 Nibble Century Holdings Ltd v Kenya Power & Lighting Company Ltd; and the Applicant to file the appeal within the timelines that will be ordered by the Honourable Court or in the alternative, the annexed draft memorandum of appeal be deemed as properly filed upon the payment of the requisite court filing fees.d.That the Honourable Court be pleased to grant stay of execution of the ex parte Judgement delivered on 27/11/2024 by Hon. Douglas Ogoti in Kisumu CMCC No. 322 of 2017 Nibble Century Holdings Ltd v Kenya Power & Lighting Company Ltd and the subsequent orders emanating therefrom pending the hearing and determination of the intended Appeal herein.e.That the costs of this application be costs in the cause. 2.The application is premised on the grounds set out on its face. These grounds form the basis of the reliefs sought by the Applicant and outline the factual and legal foundation upon which the motion is anchored, including the circumstances surrounding the lower court proceedings, the delivery of judgement, and the alleged impediments that occasioned the delay in lodging the intended appeal. 3.The said grounds are further elaborated and amplified in the supporting affidavit sworn in support of the application, wherein the Applicant sets out in greater detail the chronology of events and the reasons advanced for the delay. 4.In view of the fact that the contents of the supporting affidavit substantially restate and expand upon the same matters already captured in the grounds on the face of the application, I find it unnecessary at this stage to reproduce the said grounds verbatim herein, save as may be necessary for purposes of context and determination of the issues arising. B. The Supporting Affidavit. 5.The application is supported by the affidavit of Justus Ododa, the Applicant’s Legal Officer, sworn on 8th April, 2025. 6.In his affidavit, the said deponent avers that he is duly conversant with the facts of the matter and therefore competent to swear the affidavit in support of the application. 7.He deposes that the dispute arises from Kisumu CMCC No. 322 of 2017, Nibble Century Holdings Ltd v Kenya Power & Lighting Company Ltd, wherein the Respondent instituted proceedings seeking payment for alleged contractual services rendered, and that the matter proceeded ex parte on 11th May, 2022 in the absence of the Applicant’s Advocates, allegedly due to failure of service of a hearing notice. 8.The deponent further avers that following the ex parte hearing, an application was filed on 5th June 2023 seeking, inter alia, stay of proceedings and reopening of the Respondent’s case to allow the Applicant to defend the suit and cross-examine the Respondent’s witness. He states that the said application was heard and a ruling delivered on 9th May, 2024 dismissing the same, and that although leave to appeal was not granted, the Applicant later learned that time to seek such leave had lapsed by the time the ruling was availed on 22nd May, 2024. 9.He deposes that thereafter, an application was filed seeking leave and enlargement of time to appeal before the lower court, but owing to jurisdictional concerns, a further miscellaneous application was filed in the High Court being Kisumu High Court Misc. Application No. E241 of 2024 seeking stay of proceedings and leave to appeal out of time. He states that interim orders of stay were issued and the matter was scheduled for mention and later for ruling, but that the ruling was repeatedly deferred due to administrative issues including alleged unavailability of the Court. 10.The deponent avers that during the pendency of the High Court proceedings, the lower court matter proceeded to judgement on 27th November, 2024, which was communicated to the Applicant on 2nd December, 2024 without prior notice to his Advocates and notwithstanding earlier directions of the court. He states that this prompted the filing of an urgent application seeking stay of execution pending determination of the High Court matter, but that subsequent rulings continued to be adverse to the Applicant. 11.He further deposes that the ruling in the High Court miscellaneous application was eventually brought to the attention of Counsel, whereupon it emerged that it had allegedly been delivered earlier without notice, thereby extinguishing the Applicant’s opportunity to appeal within time. He avers that subsequent applications were also dismissed, leaving the Applicant without a remedy other than the intended appeal against the judgement delivered on 27th November, 2024. 12.The deponent states that the Applicant is dissatisfied with the said judgement and intends to appeal, as demonstrated in the annexed draft memorandum of appeal, which he believes raises arguable points of law and fact with high chances of success. He further avers that leave to appeal out of time is necessary as the prescribed period has lapsed, and that there is no stay of execution in place, creating an imminent risk of execution proceedings. 13.He contends that unless the orders sought are granted, the Respondent is likely to proceed with execution to the detriment of the Applicant, who may suffer substantial loss that may not be recoverable. He maintains that the intended appeal will not prejudice the Respondent and that the application is brought in the interests of justice. He further avers that the delay is sufficiently explained, the intended appeal is arguable and the balance of convenience favours the grant of the orders sought and that the Applicant is willing to abide by any conditions imposed by the Court. C. The Replying Affidavit. 14.The Appellant’s motion is resisted and to that end the Respondent filed a replying affidavit sworn on 23rd April, 2025 by Zachary Mboya Ooro, the Respondent’s director. 15.In his replying affidavit, the deponent deposes that the Applicant has engaged in a pattern of filing multiple applications before both the Magistrates’ Court and this Court with the intention of delaying the expeditious determination of the dispute. He avers that the Applicant has persistently raised unsubstantiated excuses, including alleged lack of service and unawareness of hearing dates and delivery of rulings, all aimed at obstructing justice and denying the Respondent the fruits of the judgement. 16.The deponent further states that the applicable law, particularly Section 79G of the Civil Procedure Act, requires appeals from subordinate courts to be filed within 30 days, subject to extension upon sufficient cause being shown. He deposes that judgement was delivered on 27th November, 2024 and that the Applicant was duly served with the same via email on 2nd December, 2024, yet failed to lodge an appeal within the prescribed time or shortly thereafter, resulting in an unexplained delay of several months. 17.He further avers that instead of filing an appeal, the Applicant opted to pursue various interlocutory applications which were all dismissed, describing this conduct as forum shopping and an abuse of the court process. According to the Respondent, the Applicant ought to have filed the intended appeal concurrently with those applications to preserve its appellate rights. 18.The Respondent also contends that the Applicant’s repeated claim of lack of service is contradicted by findings of the trial court and the High Court, which both confirmed that service was duly effected through the Applicant’s official email address. He further asserts that the Applicant was absent during the delivery of key rulings and judgements, and that where communication of outcomes was necessary, it was the Respondent who notified the Applicant. 19.He deposes that the Applicant’s assertion that they were unaware of rulings is misleading, and that the record shows the Court proceeded in their absence after due notice. The Respondent further maintains that the Applicant’s failure to attend court, follow up proceedings or exercise due diligence is entirely attributable to their own negligence and inaction. 20.The deponent avers that the Applicant has sought to improperly shift blame to the judiciary and opposing Counsel, thereby undermining the integrity of the Court process. He further states that such conduct demonstrates bad faith and renders the Applicant undeserving of the Court’s discretionary relief, as they have approached the Court without clean hands. 21.Finally, the Respondent characterises the application as vexatious, an abuse of court process and intended solely to delay execution of the decree, and accordingly prays that the application be dismissed with costs. D. The Applicant’s Submissions. 22.In its written submissions, the Applicant submits that the issues for determination are whether the Applicant should be granted leave and extension of time to file an appeal out of time and whether stay of execution pending appeal ought to be granted. 23.On the issue of enlargement of time, the Applicant submits that the application arises from proceedings in Kisumu CMCC No. 322 of 2017, Nibble Century Holdings Limited v Kenya Power & Lighting Company Limited, where judgment was delivered on 27th November, 2024. It is contended that the Applicant was unaware of the judgment at the time of delivery and only became aware upon service by the Respondent on 2nd December, 2024. The Applicant explains that there were intervening applications both in the lower court and in the High Court, including Kisumu High Court Misc. Application No. E241 of 2024, which affected the timelines for filing the appeal. 24.The Applicant relies on Section 95 of the Civil Procedure Act and Order 50 Rule 5 of the Civil Procedure Rules, which empower the Court to enlarge time even after expiry of the prescribed period. The Applicant also relies on the principles governing extension of time as set out in Mwangi v Kenya Airways Ltd [2003] KLR as cited with approval in Samuel Mwaura Muthumbi v Josephine Wanjiru Ngugi & Another [2018] eKLR, where the Court identified relevant factors as the length of delay, the reason for the delay, the arguability of the appeal, prejudice to the Respondent, the importance of compliance with time limits and the effect on the administration of justice and public interest. 25.On the length of delay, the Applicant submits that the period between judgement and filing of the application is approximately five months but contends that the delay is not inordinate as it was occasioned by ongoing court processes and pending rulings in related applications. The Applicant argues that this delay is excusable in the circumstances. 26.On the reasons for delay, the Applicant submits that the delay was occasioned by the existence of multiple pending applications, delayed rulings and administrative uncertainties in the lower court proceedings, including the transfer of the trial Magistrate and alleged lack of clarity on the status of rulings. It is further submitted that internal institutional approvals were required before lodging the appeal, which contributed to the delay, but that once the final ruling was delivered on 26th March, 2025, the present application was filed without further delay. 27.On the arguability of the intended appeal, the Applicant submits that the draft memorandum of appeal raises serious issues, including violation of the right to a fair hearing and condemnation without being heard, thereby implicating the principles of natural justice and Article 50 of the Constitution. It is contended that the appeal is not frivolous and seeks, inter alia, a retrial to enable the Applicant to present its defence on merit. 28.On prejudice, the Applicant submits that the Respondent will suffer no prejudice if the application is allowed, as any decretal sum and costs can be recovered should the appeal fail. It is further submitted that the interests of justice favour hearing the matter on merit rather than shutting out the Applicant on procedural technicalities. 29.On compliance with timelines, the Applicant submits that although time limits are important, the present matter does not involve strict statutory timelines akin to election disputes, and that the Court should prioritise substantive justice over procedural technicalities. 30.The Applicant further submits that granting the application would serve the interests of justice and enable the Court to determine the dispute on merit, whereas refusal would deny the Applicant the right of appeal. Reliance is again placed on Section 79G of the Civil Procedure Act as well as the discretionary powers of the Court under Section 95 of the Civil Procedure Act and Order 50 Rule 5 of the Civil Procedure Rules. 31.On stay of execution pending appeal, the Applicant relies on Order 42 Rule 6(1) and (2) of the Civil Procedure Rules, which provides that stay may only be granted where the Applicant demonstrates substantial loss, that the application is made without unreasonable delay and that security is provided. 32.On substantial loss, the Applicant submits that if stay is not granted, execution will issue and the Respondent may recover the decretal sum, which may be irrecoverable should the appeal succeed. The Applicant contends that the Respondent is not of known means and may not be able to refund the decretal amount, thereby occasioning substantial loss. 33.On delay, the Applicant submits that the application was made without unreasonable delay in view of the explanation provided for the intervening circumstances leading to the filing of the application. 34.On security, the Applicant submits that it is a reputable public institution with sufficient financial capacity to satisfy any decree that may ultimately be upheld. It further argues that given the substantial decretal sum of Ksh.10,940,776.30/- together with additional amounts for bid bond and performance bond, unconditional or minimally conditioned stay would be appropriate. 35.The Applicant relies on Muringa Limited v Essential Drugs Limited [2024] KEKC 3812 (KLR), where the Court emphasized the need to balance the interests of both parties in considering security for stay applications and the need to ensure that execution does not render an appeal nugatory. 36.Reliance is also placed on the authority of Kenya Power and Lighting Company Ltd v Esther Wanjiru Wakabi [2014] eKLR, where stay was granted without security on the basis that the Applicant was a state corporation capable of satisfying the decree. 37.Finally, the Applicant relies on Butt v Rent Restriction Tribunal [1982] KLR 417 as cited in Amal Hauliers Limited v Abdulnasir Abukar Hassan [2017] eKLR, where the Court of Appeal set out guiding principles for the exercise of discretion in stay applications, including that the discretion should not be exercised so as to prevent an appeal, that stay should be granted where otherwise the appeal would be rendered nugatory and that special circumstances of each case must be considered. 38.In conclusion, the Applicant submits that it has met the threshold for both enlargement of time and stay of execution and urges the Court to allow the application with costs to abide the outcome of the intended appeal. E. The Respondent’s Submissions. 39.In his oral submissions, Mr. Lore, learned Counsel for the Respondent, submits that the Applicant has, through its pleadings and submissions, effectively admitted indolence in failing to lodge the appeal within time. Counsel states that he fully relies on the contents of the Respondent’s replying affidavit and maintains that no satisfactory or tenable explanation has been offered to justify the delay in filing the appeal. 40.Counsel further submits that the Respondent holds a lawful decree in her favour and is entitled to enjoy the fruits of her judgement without undue interference. It is contended that the Respondent stands to suffer prejudice if the application is allowed, particularly in light of the prolonged and unexplained delay in moving the Court. 41.It is further submitted that taxation in the matter was undertaken on 17th June, 2025 and that the dispute has been in Court for a considerable period of time. Counsel emphasizes that no appeal was filed within the statutory timelines and that the present application does not meet the threshold under Order 42 Rules 6 and 7 of the Civil Procedure Rules. 42.Counsel submits that the grant of leave to appeal is a matter of judicial discretion, which must be exercised judiciously and upon sufficient cause being shown, which, in his view, the Applicant has failed to demonstrate. He further points out that a previous application by the Applicant had been dismissed and that the costs thereof remain unpaid. 43.In conclusion, Counsel urges the Court to dismiss the application with costs to the Respondent. F. Issues for Determination. 44.Having considered the application, the two affidavits, the submissions by both Counsel and the record in its entirety, the issues that arise for determination are as follows:a.Whether the Applicant has demonstrated sufficient cause to warrant the enlargement of time and grant of leave to file an appeal out of time in respect of the judgement delivered on 27th November, 2024 in Kisumu CMCC No. 322 of 2017.b.Whether the delay in filing the intended appeal is inordinate and/or whether it has been satisfactorily explained, taking into account the chronology of events relied upon by the Applicant and the Respondent’s contention that the delay is unjustified and indicative of indolence.c.Whether the intended appeal is arguable, with cognizable issues warranting the exercise of the Court’s discretion in favour of granting leave.d.Whether the Applicant has met the threshold for the grant of stay of execution pending appeal under Order 42 Rule 6(2) of the Civil Procedure Rules.e.What orders should issue as to costs. G. Analysis and Findings. 45.The first issue for me to address is whether leave and enlargement of time to appeal out of time should be granted. 46.The power of this Court to enlarge time is discretionary but must be exercised on sound judicial principles and not on whim. Section 79G of the Civil Procedure Act provides that appeals from subordinate courts must be filed within 30 days, although the Court retains discretion to admit an appeal out of time where sufficient cause is shown. 47.Similarly, Section 95 of the Civil Procedure Act and Order 50 Rule 5 of the Civil Procedure Rules empower the Court to extend time even after expiry, provided justice so demands. The jurisprudence on this issue is well settled in Mwangi v Kenya Airways Ltd [2003] KLR and Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR, where the courts emphasized that extension of time is not automatic but depends on a satisfactory explanation for delay and the overall interests of justice. 48.In the present case, the Applicant has explained that the delay in filing the intended appeal arose from a series of intervening proceedings both before the subordinate court and this Court, including pending applications, delayed rulings and administrative uncertainties regarding the status of court processes. While the Respondent has strongly disputed this explanation and characterized the delay as indolent and deliberate, the Court must assess whether the explanation, taken as a whole and in the context of the litigation history, discloses sufficient cause. 49.It is evident from the record that the matter has had a complex procedural trajectory, involving multiple applications seeking stay, extension of time and clarification of procedural status. The Court is not persuaded that the delay is wholly unexplained or entirely attributable to willful disregard of timelines. Rather, it appears to have been influenced, at least in part, by the pendency of related proceedings and uncertainty regarding rulings which, rightly or wrongly, the Applicant believed had a bearing on its appellate rights. 50.In exercising discretion under Article 159(2)(d) of the Constitution, this Court is enjoined to eschew undue regard to procedural technicalities where such would impede substantive justice. The overriding objective is to ensure that disputes are determined on their merits where possible, particularly where the right to appeal has not been extinguished by statute or conduct that is inexcusable. On balance, I am satisfied that sufficient cause has been shown to justify enlargement of time, albeit not without consequences in costs. 51.The second issue for this Court to determine is whether the intended appeal is arguable. 52.The threshold for establishing an arguable appeal is not high. It does not require demonstration of success, but merely the existence of at least one bona fide issue deserving consideration by the appellate court. This principle was articulated in Co-operative Bank of Kenya Ltd v Banking Insurance & Finance Union (Kenya) [2015] eKLR, where the Court held that an arguable appeal is one which raises a question that is not frivolous. 53.In the present matter, one of the central complaints raised in the draft memorandum of appeal is that the Applicant was allegedly condemned unheard in the proceedings culminating in the impugned judgement. This raises a constitutional question anchored in Article 50(1) of the Constitution, which guarantees the right to a fair hearing. This right is not merely procedural but foundational to the legitimacy of judicial determinations. 54.The essence of justice is that no person should be condemned without being heard. It is an indispensable requirement that both sides be afforded an opportunity to present their case. Similarly, in Republic v Kenya National Highways Authority & Another ex parte Szumbah Mwanaongoro [2016] eKLR, the Court reiterated that any decision made without affording a party a hearing is contrary to the rules of natural justice and cannot stand. 55.The constitutional dimension of the right to be heard is further underscored by Article 25(c) of the Constitution, which expressly provides that the right to a fair trial shall not be limited. In Bahola Mkalindi Rhigho & 9 Others v Michael Seth Kaseme & 4 Others [2021] eKLR, the Court held that a violation of the right to be heard renders proceedings fundamentally defective, regardless of the merits of the underlying dispute. 56.In light of the foregoing, I am satisfied that the intended appeal raises serious questions of both fact and law, particularly concerning procedural fairness and the integrity of the trial process. These issues are not frivolous and merit interrogation by an appellate court. 57.The third issue is whether the delay has been sufficiently explained by the Applicant. 58.The Respondent has taken the position that the Applicant has been indolent, engaged in forum shopping and has failed to act within the statutory timelines without justification. While such criticism is not without some foundation given the procedural history, the Court must avoid a mechanical application of delay principles and instead consider whether the explanation offered, viewed holistically, meets the threshold of sufficiency. 59.The explanation given points to ongoing interlocutory proceedings, contested timelines of delivery of rulings and institutional decision-making processes within the Applicant’s structure. While not entirely compelling in every respect, the explanation is not so implausible as to be disregarded outright. In the circumstances of this case, I am persuaded that the delay, though significant, has been reasonably explained. 60.The fourth issue for me to address and determine is whether stay of execution should be granted. 61.The principles governing stay of execution are codified under Order 42 Rule 6(2) of the Civil Procedure Rules, which requires demonstration of substantial loss, absence of unreasonable delay and provision of security. The Court of Appeal in Butt v Rent Restriction Tribunal [1982] KLR 417 stated that the guiding principle is that a stay should be granted where refusal would render an appeal nugatory, and that discretion should be exercised so as not to prevent a valid appeal from being heard. 62.In this case, the Applicant contends that execution would result in substantial loss as the decretal sum, once paid out, may not be recoverable should the intended appeal succeed. While the Respondent disputes this assertion, the Court is mindful that the purpose of stay is to preserve the substratum of the appeal and avoid rendering it an academic exercise. 63.Further, considering the nature of the decree herein, which is purely monetary, as well as the competing interests of the parties, the Court is of the view that the most appropriate and just approach is to grant a conditional stay of execution rather than an unconditional one. This is because, while the Applicant has demonstrated an arguable appeal and sufficient cause to warrant preservation of the subject matter pending appeal, the Respondent is equally entitled not to be kept out of the fruits of a judgement indefinitely without adequate safeguards. 64.A conditional stay therefore strikes a fair balance between the right of appeal and the right of a successful litigant to enjoy the fruits of judgment, and ensures that neither party suffers undue prejudice during the pendency of the intended appeal. H. Conclusion and Disposition. 65.Accordingly, and in the interests of justice, I make the following orders:a.The Applicant is hereby granted leave and extension of time to file an appeal out of time against the judgement delivered on 27th November, 2024 in Kisumu CMCC No. 322 of 2017.b.The Applicant shall file and serve its memorandum of appeal within seven (7) days from the date of this ruling, failing which the leave hereby granted shall automatically lapse and the application shall be deemed as having been dismissed with costs effective the date of this ruling.c.There shall be a stay of execution of the judgement and decree in Kisumu CMCC No. 322 of 2017 pending the hearing and determination of the intended appeal, which shall be conditional upon the Applicant depositing the entire decretal sum of Ksh.11,980,396/- in an interest-earning account to be opened in the joint names of the law firms on record for the parties in a reputable commercial bank within forty-five (45) days from the date hereof.d.In default of (c) above, the order for stay of execution shall automatically lapse and stand vacated without further reference to the Court, and the Respondent shall be at liberty to execute the decree.e.Costs of the application upon compliance with the above orders shall abide the outcome of the intended appeal. 66.This file is hereby closed. DELIVERED (VIRTUALLY), DATED & SIGNED THIS 28TH DAY OF MAY, 2026.JOE M. OMIDO.JUDGEFor Applicant: Ms. Cheloti.For Respondent: Mr. Lore.Court Assistants: Mr. Ngoge & Mr. Juma.