https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10636

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KERUGOYA** **MISCELLANEOUS CIVIL APPLICATION NO. E012 OF 2026** **JOHNSON MAINA NJINJU..……….………………………………..…………APPLICANT** **VERSUS** **FELISTER NYAMBURA MAINA…………………...…………………….… RESPONDENT** **RULING** ***Introduction*** 1. This is a ruling on an application by Notice of Motion dated 13/2/2026 by the appellant for leave to file an appeal out of time and for stay of execution of judgment of the trial court delivered on 29/7/2025 in specific terms as follows: ***“FOR ORDERS:*** ***I. That this matter be certified urgent.*** ***2. That this Honourable court do order for a stay of execution of the judgment delivered on the 29th July 2025 and all the consequential orders therefrom be granted pending the hearing and determination of this application inter-parties.*** ***3. That the Applicant be granted leave to appeal out of time against the whole judgment of HON M.W. MUTUKU (Ms.) (CM), delivered on the 29th July 2025.*** ***4. That the memorandum of appeal annexed hereto be deemed as duly filed upon payment of the requisite fees.*** ***5. That costs of this application be provided for.”*** 1. The Notice of Motion is based on grounds set out in the application as follows: ***Grounds:*** *a) That the Applicant has since requested for typed copies of the proceedings.* *b) The judgment was delivered on the 29th July 2025.* *c) The Applicant was dissatisfied with the whole of the judgment delivered on the 29th July 2025.* *d) Unfortunately, the details of the judgment were not disclosed by the Advocate to the Applicant.* *e) It was not until the recent application W<lS filed that the applicant got to know that the Respondent was awarded half of what was declared matrimonial property.* *f) That the application has been brought without any unreasonable delay.* *g) That it is in the interest of justice that this application be allowed.”* 1. The Application is supported by facts set out in the Supporting Affidavit of the Applicant sworn on 13/2/2026 as follows: *“SUPPORTING AFFIDAVIT* *I, JOHNSON MAINA NJINJU of P.O Box 288, KERUGOYA do hereby solemnly make oath and state as follows:* *1. That I am the Applicant herein thus competent to swear this affidavit.* *2. That the judgment in Kerugoya CM Divorcee Cause No. E009 of 2024 was delivered on the 29th July 2025. (Annexed and marked as JMN/1 is a copy of the judgment).* *3. That I was not in attendance when the judgment was delivered and neither was my advocate.* *4. That recently, I was served with an application where the Respondent had requested for a half of the rent collected from what was declared as the matrimonial property.* *5. That I was surprised to know that the judgment delivered declared my property, Plot NO.13418/21/19 old Airport Road Embakasi and LR.NO.KIINE/GACHARO/6359 are matrimonial property.* *6. That the ruling arising from the application directed that the Respondent is entitled to half of the rent collected from the Plot. (Annexed and marked as JMN/2 is a copy of the ruling delivered on the 13th January 2026.)* *7. That I took the initiative to request typed proceedings and judgment for purposes of the appeal. (Annexed and marked as JMN/3 is a copy of the letter dated the 2nd February 2026).* *8. That the reason for delay was lack of prior knowledge of when the judgment was delivered as the limited finances.* *9· That, after the matter came to my attention in November 2025, I have been gathering finances to hire an advocate and file the appeal.* *10. That I have an appeal with high chances of success. (Annexed and marked as JMN/4 is a copy of the memorandum of appeal)* *11. That the Respondent will not suffer any prejudice should the application be allowed.”* ***The response*** 1. The Respondent has by Replying Affidavit sworn on 27/2/2026 opposed the application on primarily grounds that the appellant has no reasonable excuse for the delay in filing his appeal having been at the delivery of the judgment in the trial court and the appeal is only intended to delay her enjoyment of the fruits of the judgment, as follows: *“****REPLYING AFFIDAVIT*** *I, FELISTER NYAMBURA MAINA, of P.O. BOX 212, SAGANA within the Republic of Kenya do hereby solemnly swear and state as follows:-* *I. THAT I am the Respondent herein and therefore competent to swear this affidavit.* *2. THAT 1 have read the application before Court dated 13th February, 2026 and I understand its contents in response to which I swear this affidavit.* *3. THAT the Application dated 13th February, 2026 is incompetent, afterthought and an abuse of the Court process.* *4. THAT in response to paragraphs (a) – (e) of the grounds set out in the Application are purely false calculated to win sympathy where none is deserved and I avert that I am a stranger to those averments and state that the applicant had an duty to take all reasonable steps necessary if indeed he had an interest in following lip with matter after judgment and to file the appeal within the statutory timelines under the law and the Applicant is put to strictest proof thereof.* *5. THAT in response to paragraphs 2 - 4 or the Supporting Affidavit, I aver that the Applicant is being economical with the truth and his affidavit is full of falsehoods for the following reasons:* *a) The applicant herein claims to have learnt of the matter herein after the Ruling dated 13th January 2026 whereas he was present when the Ruling was being delivered and still understood the orders issued by the Honourable Court for him to start paying me half rent collected from* ***Plot No. 13418/21/19 Old Airport.*** *b) That a perusal or the annexed pleadings re cab that he always represented himself and was fully aware of the proceedings of the matter herein since he sued me.* *c) That it is clear that the Applicant is out to mislead the Honourable Court in an effort to seek leave to appeal out of time sine 29th July 2025 and it is worth noting that I have not proceeded with the execution of the Judgment herein.* *6. THAT it is therefore clear that the averments in the affidavit in support of the application are untrue, purely false and calculated to win sympathy where none is deserved.* *7. THAT in response to paragraph 5 of the Supporting Affidavit, the averments therein are untrue, baseless and unconvincing and I aver that I am a stranger to those averments and state that the applicant had the prerogative to take all necessary steps to have this appeal herein be filed on time and be heard and determined within stipulated timelines and the Applicant is put to strictest proof thereof.* *8. THAT in response to paragraph 6 of Supporting Affidavit are baseless, unfounded and purely false, sensational calculated to win sympathy where none is deserved and I state that the Applicant has not demonstrated the steps he undertook toward' keeping himself abreast with the proceedings of that matter therein. The Applicant cannot then come here and seek leave to file the appeal out of time after 5 good months of his inaction since the matter was heard and determined. The same should not be entertained by this Honourable Court as* ***"equity aids the vigilant not the indolent."*** *9. THAT in response to paragraph 7 of the Supporting Affidavit, I state that I am a stranger to those averments and no reason has been offered to explain the delay in filing the application seeking leave to the appeal out of time and therefore the application for leave to appeal out of time has no merit due to inexcusable and inordinate delay, In the instant application the applicant concedes that the application seeking leave to appeal is premature and incompetent for having been filed out of time and the Applicants are put to strictest proof thereof.* *10.* ***THAT*** *in response to paragraph 8 of the Supporting Affidavit, I state the Applicant has not demonstrated the steps he undertook towards keeping himself abreast with the proceedings of that matter therein and take necessary steps under the law to file the appeal within the stipulated statutory timelines and the Applicant is put to strictest proof thereof.* *11.* ***THAT*** *in response to* ***paragraph 9*** *of the Supporting Affidavit, I state that I am a stranger to those averments and no sufficient, tangible reason has been offered to explain the delay in filing the application seeking leave to the appeal out of time and therefore the application for leave to appeal out of time has no merit due to inexcusable and inordinate delay and the Applicant is put to strictest proof thereof.* *12.* ***THAT*** *in further response to* ***paragraph 9*** *of the Supporting Affidavit, I aver that the Applicant has not offered any reasonable security to* ***the*** *satisfaction* ***of this Honourable Court*** *as required under* ***Order 42 Rule 6*** *of Civil Procedure Rules 2010 and therefore the application is incompetent and bad in law. If the Applicant was acting in good faith, he would have offered to deposit the whole rent amount* ***collected from July 2025 to date*** *in an interest earning bank account in the joint names of his counsel and myself and puts the Applicant to strictest proof thereof.* *13.* ***THAT*** *in response to* ***paragraph 10*** *of the Supporting Affidavit, I aver that the proposed appeal does have a Memorandum of Appeal annexed to the application dated* ***13th February, 2026*** *which does not disclose an arguable appeal which raise any serious triable issues and cannot seek leave to appeal out of time and so the applicant had a legal duty to take all reasonable steps necessary if indeed he had an interest in following up with matter* ***throughout*** *even after judgment to file the appeal within the stipulated statutory timelines and the Applicant is put to strictest proof thereof.* *14. THAT in further response to paragraph 10 of the Supporting Affidavit. I aver that the applicant has conceded that he has resources to pay me. It is therefore clear that he would not suffer irreparable loss, damage and prejudice should the Judgement be executed. I am a farmer and so the applicant has failed to prove the substantial loss he would suffer as required under Order 42 Rule 6 and puts the Applicant to strictest proof thereof.* *15. THAT in response to paragraph 11 of the Supporting Affidavit, I aver that I stand to suffer irreparable loss, damage and as this is a very old matter having been filed 3 good years ago and the aim of Applicant is to delay my enjoyment of the fruits of Judgement entered on 29111 July 2025 and it is in the interest of justice that the application is dismissed with costs because the Applicant has not even offered any reasonable and credible reasons and documentary evidence to this Honourable Court seeking for leave to appeal out of time and litigation has to come to an end and puts the Applicant to strictest proof thereof.* *16. THAT in further response to paragraphs 8 and 11 of Supporting Affidavit are untrue, purely false, sensational calculated to steal a match where none is deserved and I state that the applicant's application has been filed after 5 good months which is an afterthought to appeal the Ruling entered on 13th January 2026 and no actions had been offered to explain the delay in coking leave to file the appeal out of time. The delay is inordinate and I pray that the application herein be dismissed with costs a. it lacks merit and for wasting this Honourable Court's precious time and resources and the Applicant put to strictest proof thereof.* *17. THAT I should be allowed to enjoy the fruits of the litigation within the shortest time possible.* *18. THAT the interim orders granted herein which had they been revealed would have swayed the Court in favour of the Respondent.* *19. THAT as is evident from the said application. it is based on a misapprehension of the facts as well as concealment or material facts to the Honourable Court for his personal gain and to the detriment or the interest of the Respondent to enjoy the fruits of the Judgement herein.* *20. THAT in light of the foregoing. it is only fair, jut and in the interest of equity that this Honourable Court dismiss the Applicant’s application dated 13th February, 2026 with costs to the Respondent for being incompetent, frivolous, vexatious, and an outright abuse of Court process and valuable lime.”* 1. The appellant did not file any supplementary affidavit. ***Judgment and Ruling of the Trial Court*** 1. In its judgment of 29/7/2025, the Court while dismissing the divorce suit proceeded to allow a cross-petition for declarations as to some named property being matrimonial property of the parties as follows: *“In upshot, I find and hold that the respondent has proved that she made a substantial contribution towards the acquisition and development of the matrimonial property.* ***She has demonstrated that she is entitled to the 50% share in both properties.*** ***4) Who should bear the cost of this petition?*** *This being a family matter, each party shall bear their own costs.* *In the upshot, I find that –* 1. *The marriage between the petitioner and the respondent is not irretrievably broken down and the prayer for dissolution is dismissed.* 2. *The court makes a declaration that plot no. 13418/21/19 Old Airport Road Embakasi and L.R. Kiine/Gacharo/6359 are matrimonial property, and the respondent is entitled to 50% in respect each property.* 3. *Each party shall bear its own cost.* *JUDGMENT DATED, SIGNED & DELIVERED IN OPEN COURT ON THIS 29TH DAY OF JULY, 2025* *Hon. Mutuku -Chief Magistrate* *In the presence of: -* *Mr. McDoweIl - Court Assistant.* ***Advocate for the Petitioner -N/A..*** *Respondent - present in person.* *GIVEN under my hand and Seal of this Court on 2025·07·30 16:15:49* *SIGNED BY; HON. M. W. MUTUKU (MS) C.M (ADMINISTER JUDGEMENTS)”* 1. By a subsequent application dated 13/11/2025 for injunction against interference with her passion of an alleged family farm and for a share of rent of a Nairobi property, the trial Court by a Ruling of 13/1/2026 awarded as follows: *“****15. In the upshot, the respondent/applicant’s application succeeds in terms of the prayer the that the rent collected from plot no. 13418/21/19 Old Airport Road Embakasi be shared equally between the petitioner and the respondent.*** *This being a family matter, each party shall bear its own cost.* ***RULING DATED, SIGNED & DELIVERED IN OPEN COURT ON THIS 13th JANUARY, 2026.*** *Hon. Mutuku - Chief Magistrate* *In the presence of:-* *Mr. McDoweIl - Court Assistant.* ***Respondent /Applicant- present in person.*** ***Petitioner/Respondent- present in person.*** *SIGNED BY:* *HON. M. W. MUTUKU (MS) C.M”* 1. The Notice of Motion herein dated 13/2/2026, sought that ***“an order for a stay of execution of the judgment delivered on 29th July 2025 and all the consequential la orders thereform be granted pending and determination of this application inter-parties.”*** The hearing inter-partes having already been done, the Court will take this prayer as sought to last, in its obvious intendment, to the hearing and determination of the appeal. ***Submissions*** 1. The parties made respective oral submissions before the Court on 4/3/2026 as follows: ***“Mr. Mugo for the Applicant*** *I refer to Paragraph 5(a) of the Respondent’s Replying Affidavit which indicates that she plans to recover half the rent on the basis of the Ruling of the trial court. %months delay in application for stay of execution and extension is explained in that he was not aware the trial court had declared the suit property as matrimonial property.* *Judgment was delivered but it was in his attention that the property had been declared matrimonial property. The rent has not been established in the Replying Affidavit. There is no substantial loss to be suffered. The applicant should be allowed to appeal out of time.* *Applicant indicates that there is no malice or afterthought in brining the application for extension of time. [Rental established from the applicant is 35,000/- per month.]* ***Mrs. Nyambura Maina Respondent*** *I am claiming the half rent as we done everything together since we got married. I claim the half of Ksh.35,000/- rent of property at Nairobi.* *There is another rental property made up of 4 shops and 7 single rooms with rent of 8,000/- per month for the shops and 10,500/- for the single rooms at Gacharo village.* ***I pray that I get my share as I am suffering as we have done this together.*** ***The applicant was present at the delivery of the ruling.*** ***My total claim is 17,500/-*** *as I receive Ksh.10500/- from seven (7) rental single rooms at Gacharo and the applicant receives 8,000/- from the shops.****”*** 1. Upon hearing the submissions and noting the family nature of the matter, and the fact of the dismissed divorce suit, the Court advised the parties to seek a family reconciliation and settlement out of court. 2. The family negotiations did not materialize and the Court was asked to proceed to make its decision on the matter. **Determination** 1. The High Court has discretion to allow extension of time for filing an appeal and generally taking other steps prescribed for in the Civil procedure Rules by Order 50 Rule 6 of the Civil Procedure Rules as follows: ***“6. Power to enlarge time [Order 50, rule 6]*** *Where a limited time has been fixed for doing any act or taking any proceedings under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed:* *Provided that the costs of any application to extend such time and of any order made thereon shall be borne by the parties making such application, unless the court orders otherwise.”* 1. The principles for the grant of application for extension of time are settled in the Supreme Court’s ***Nick Salat*** case where the Court set the guiding principles for the grant of extension of time as follows: **“[E]*xtension 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 for 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; and whether in certain cases, like election petitions, public interest should be a consideration for extending time.*”** ***Stay of execution pending appeal*** 1. As regards stay of execution pending appeal, Order 42 Rule 6 (1) and (2) of the Civil Procedure Rules require proof of substantial loss if stay is not granted and provision of security for the due performance of the decree together with a demonstration that the application is made without undue delay as follows: *“****6. Stay in case of appeal [Order 42, rule 6]*** *(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 order set aside.* *(2)* ***No order for stay of execution shall be made under subrule (1) unless****— (a) the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and* *(b) 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.”* ***On the merit of the applications for extension of time and stay of execution*** 1. In the present case, there is an obvious question of jurisdiction of the trial court in view of section 7 of the Matrimonial Property Act 2013. The draft **Memorandum of Appeal** attached to the application for leave to appeal isolated two principal issues of law and fact as follows: *“****MEMORANDUM OF APPEAL*** *The Appellant being dissatisfied by the whole judgment and order of Hon M.W. Mutuku (Ms.) CM Kerugoya CM DIVORCE Cause No. E028 of 2023 delivered on the 29th July 2025 wishes to appeal against the same on the following grounds:* *1) The Learned Magistrate erred in both law and fact by failing to appreciate that the marriage between the Petitioner and the Respondent was not irretrievably broken against the weight of the evidence presented in court.* *2) The Learned Magistrate erred both in law and fact by making a declaration that LR.NO.KIINE/GACHARO/6359 and Plot No. 134/21/19 Old Airport Road Embakasi are matrimonial properties.* *3) The Learned Magistrate erred both in law and fact by arriving at erroneously decision.* ***It is proposed to request the Honourable court for an order*** *that the decision of the lower court be vacated and set-aside with orders for costs to the Appellant.”* 1. For instance, whether the trial court was entitled in the circumstance of the case to make the declaration that the named parcels of land are matrimonial properties is a question of law and fact which is governed by the statutory provisions of the Matrimonial Property Act, 2013 which by its section 7 appears to require a dissolution of the marriage or divorce as a basis of jurisdiction, as follows: ***“7. Ownership of matrimonial property*** *Subject to section 6(3), ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition, and* ***shall be divided between the spouses if they divorce or their marriage is otherwise dissolved.”*** 1. Without the divorce, the Petition for which the trial court dismissed, it would appear the Court had not jurisdiction to entertain the matrimonial property suit. That is a substantial question for determination by the appellate court. So that even assuming the trial court was right in the determination as to the irretrievability of the marriage and therefore its finding on the petition for divorce, there lingers the question of jurisdiction of the Court then to proceed with the property suit. 2. Although the trial court did refer to the authority of section 7 of the matrimonial Property Act in as requiring consideration of the respective contribution of the spouses to the acquisition of the particular property, it did not consider whether there was jurisdiction if there was **no** divorce or their marriage is otherwise dissolved. The trial Court in its judgment said: *“****3) Whether the respondent made any contribution to the acquisition and/or further developments on the said property and to what extent*** *Section 7 of the same Act stipulates that ownership of matrimonial property depends on each spouses’ contribution to wit:-* *“Subject to section 6(3), ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition, and shall be divided between the spouses if they divorce or their marriage is otherwise dissolved.* *The principle behind this is that division of matrimonial property between spouses is based on their respective contribution ot the acquisition. Contribution is defined under section 2 of the Act to be monetary and non-monetary.”* 1. Needless to state a question of jurisdiction may be raised by the court itself and at any stage of the proceedings. See Supreme Court in ***Megvel Cartons Limited v Diesel Care Limited & 2 others*** [2023] KESC 24 (KLR)adverting to ***“the well-known principle that the question of jurisdiction can be raised at any point in the proceedings, on appeal and even suo moto.”*** 2. The Court finds that the appellant has demonstrated by his draft Memorandum of Appeal, a serious question for presentation to the appellate court, that there has not been unexplained inordinate delay and as regards substantial loss, it is qualitatively prejudicial that the appellant is deprived of protection of law if the judgment of the trial court is implemented despite the question of lack of jurisdiction of the trial court. 3. As to the amount of loss, while the property subject of the suit are not valued, landed property has both monetary and emotional value in Kenyan societies and the Cour tis prepared to accept that the prospective loss of a portion of dispute land is substantial loss. ***Delay*** 1. On both counts for the application for extension of time and for application of stay of execution pending appeal, the appeal and application for stay should have been filed within 30 days of the Judgment of 29/7/2025, making five months delayed when this application was filed on 13/2/2026. 2. The period of five months outside the 30 day period allowed for appeal under section 79G of the Civil procedure Act is not inordinate. The explanation given by Counsel for the Applicant is reasonable even if it were accepted that as urged by the respondent, the applicant was in court when the judgment was delivered. The Court has seen the record of the trial court’s appearances on the day of delivery of judgment and is able to confirm the correct position. If the appellant was not in court and he was not aware that the court had declared the suit property a matrimonial property, as urged by his Counsel, he may understandably not have been sought the appellate court’s intervention. 3. While the record on delivery of the Ruling on application for injunction and division of rent on **13/1/2026**, shows that the appellant was present in person, as asserted by the respondent, the record of the delivery of the Judgment on **29/7/2025**, which is the crucial day with regard to the application for leave to appeal from the Judgment, is clear that neither Petitioner/appellant herein nor his advocate were present in Court, as the record shows. The Court accepts that the appellant was not present in person or by counsel at the delivery of the judgment which declared the suit property matrimonial properties. 4. The Supreme Court has accepted, with qualification, the principle of mistake of counsel should not be visited upon a litigant as held in *George* ***Kang’ethe Waruhiu vs. Munene & another***(Civil Application 18 of 2020) [2021] KESC 42 (KLR); and ***Karinga Gaciani & 11 others vs. Kimanga & another*** (Application E004 of 2023) [2023] KESC 23 (KLR) ***(Karinga Gaciani Case)*** and there must be cogent and credible evidence that the applicant made concerted efforts or due diligence, to follow up with the advocates to pursue his rights. To her credit, the respondent has based her objection to the application for leave to appeal on a submission of absence of such evidence of follow-up on the part of the appellant throughout the pendency of the case and even after judgment. 5. The Court is, however, not able to visit on the appellant the consequences of his late application because the Counsel is not shown to have been present at the delivery of the Judgment on 29/7/2025 and the Court is willing to accept the appellant’s statement that he got to know about the Judgment in November 2025, (when the respondent herein filed her application for injunction against removal from the some suit property and for half share rent in others, which was the subject of the ruling of the trial court of 13/1/2026. 6. As held in ***Karinga Gaciani Case,*** there is in this case evidence that the appellant showed interest in and followed up on his case with Counsel, to no avail, after the order for sharing rent on the suit properties that he wrote to court seeking certified copies of proceedings. 7. In this case, the appellant concedes he got to know about the judgment in November 2025. Yet he did not file an application for leave to appeal earlier than 13/2/2026 after the order for recovery of half the rent from the suit properties. The Court finds the delay although not inordinate has only been ***partially*** explained for the period prior the filing of the Respondent’s application of 13/11/2025, and the Court will in terms of the **Order 50 Rule 6 Proviso** punish the applicant in costs. ***Security*** 1. The Court will consequently make orders for the presentation of the suit property in the meantime pending appeal leave for which is granted in view of the serious jurisdictional question to be presented to the Court on appeal. 2. When quantifying the rent claimed from the appellant, the respondent said as sum of Ksh.17,500 per month in rental from the Nairobi house. This would be her interest in the property for the period before distribution if the judgment of the trial court were upheld. Such security for rent in the sum of Ksh.210,000/ (rounded off to Ksh.250,000/-) for a period of one (1) year during the hearing and determination of the appeal would be reasonable in the circumstances. 3. In balancing the interest of the parties respectively to preservation of the suit property and to the fruits of judgment, the Court will order an injunction against any disposal of the suit property to be registered on the land registers for the relevant parcels of land and a deposit with the Court of Bank Guarantee or Cash for the amount of Ksh.250,000/- within the next thirty (30) days. 4. In the event that the judgment of the trial court is upheld on appeal and the appellant has upon account to pay for the rent/mesne profits equivalent to half share in the properties for the period between the judgment and the determination of the appeal may be paid from the deposit and the sharing of the property shall be possible as the property will have been preserved by the order of injunction against disposal in the meantime. **ORDERS** 1. Accordingly, for the reasons et out above, the Court finds merit in the application and makes the following orders: * + 1. **The appellant is granted leave to file an appeal out of time for the judgment of the trial court of 29/7/2025.** 2. **There shall be a stay of execution of the Judgment of 29/7/2025 and all consequential order of the trial court pending the hearing and determination of the appeal.** 3. **As a condition for the grant of stay of execution pending appeal the applicant shall deposit with the Court of Bank Guarantee or Cash for the amount of Ksh.250,000/- within the next thirty (30) days.** 4. **The Memorandum of Appeal shall be filed with seven (7) days and the Record of Appeal shall be filed within forty-five (45) days.** 5. **Directions as to the hearing of the appeal shall be taken on 7/7/2026.** 2. There shall be no orders as to costs. *Orders accordingly.* **DATED AND DELIVERED THIS 14TH DAY OF MAY 2026.** **EDWARD M. MURIITHI** **JUDGE** **APPEARANCES:** Mr. Mugo for the Appellant. Mrs. Felister Nyambura Maina, Respondent.