Oketch & another v Maeta (Civil Miscellaneous E298 of 2025) [2026] KEHC 13072 (KLR) (12 August 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAKURU** **HCCCMISC. NO. E298 OF 2025** **OMBASU OKETCH…………………...……………………….1ST APPLICANT** **KEMUNTO OMBASA………………………………………....2ND APPLICANT** **VERSUS** **PAMELA NYANCHAMA MAETA…………………..………..RESPONDENT** **RULING** 1. By way of Notice of Motion dated 15th October, 2025 brought under **Article 159 (2) (d)** of the **Constitution**, **Sections 1A, 1B, 3A, 79G** and **95** of the **Civil Procedure Act, Order 42 Rule 6 (1) (2)** & **(7),** **Order 50** **Rule 6** and **Order 51** **Rule 1** of the **Civil Procedure Rules** seeking the following orders. That 2. ***Spent.*** 3. ***This Honourable Court be pleased to grant the Applicants leave to appeal out of time in respect to the judgment/decree delivered in MOLO CMCC 224 OF 2023- PAMELA NYANCHAMA MAETA VS OMBASU OKETCH & GLADYS KEMUNTO OMBAВА*** 4. ***This Honourable Court be pleased to grant a temporary order of stay of execution of the judgment and/or the decree delivered on 14th July, 2025 and all consequential orders arising therefrom pending the hearing and determination of this application inter-parties.*** 5. ***This Honourable Court be pleased to grant an order of stay of execution of the judgment and/or the decree delivered on or about 14th July, 2025 and all consequential orders arising therefrom pending the hearing and determination of the intended Appeal herein.*** 6. ***This Honourable Court be pleased to issue an order that the entire decretal sum awarded by the trial court of Kshs.306,600/= plus costs and interest only be deposited in a joint interest-earning account in the names of both advocates as security pending hearing and determination of the intended Appeal herein.*** 7. ***This Honourable Court be pleased to issue any other order as it may deem just, appropriate and expedient in the interest of justice.*** 8. ***Costs of this application be provided for.*** 9. The Application is premised on the grounds on the face of it and the **Supporting Affidavit** sworn by **Ombasu Oketch** of even date. He states that judgment in **Molo CMCC No. E224 of 2023** was delivered on 14th July, 2025 in favour of the Respondent as against the Applicants in the following terms: Liability 100% against the Applicants, General Damages Kshs. 300,000/=, Special damages Kshs.6,600/= plus costs of the suit & interest at court rate together with a stay of execution for 30 days. 10. It is the Applicants' case that their advocates informed their insurer, Directline Assurance Ltd, of the terms of the judgment for further instructions or forwarding of the payment to the Respondent. It is stated that the claims officer who received the terms left the employment of M/S Directline Assurance Ltd before issuing further instructions. 11. The deponent stated that his advocates followed up on payment of the claim with their instructing client who was dissatisfied with the judgment and instructed them to file an appeal, but by the time they received instructions to appeal, the 30 days set by law for lodging an appeal had since lapsed. 12. It is contended that at the time of delivery of judgment, the firm of Kimondo Gachoka Advocates & Co. had been appointed by their insurer to act on their behalf. That vide a consent dated 15th October 2025 signed by the firm of Kimondo Gachoka Advocates & Co. and KRK Advocates LLP, the latter took over instructions to act on behalf of the Applicants. 13. It is deponed that the Appeal herein raises numerous triable issues and points of law and has very high chances of success. The stay of execution granted when judgment was delivered has since lapsed, and the Respondent has commenced execution proceedings by issuing warrants of attachment and further has proclaimed the motor vehicle **KCZ 835R** Toyota Matatu and other household items. 14. He is now exposed and could incur substantial loss and inconvenience to his business operations if his motor vehicle and other household items are attached and sold by way of auction as per warrants of attachment. 15. He states that he stands to suffer irreparable loss and damage if this application is not allowed and if the Respondent executes against the impugned judgment, the intended Appeal will be rendered nugatory. 16. He deposes that from the proceedings before the subordinate Court, the Respondent's means of income remains unknown, insufficient, and/or undisclosed; hence there is a high propensity that she may not be able to refund the decretal sum herein in the likely event the intended Appeal succeeds. 17. He states that he is ready and willing to deposit the entire decretal sum awarded by the Trial Court in a joint interest-earning account pending the hearing and determination of the intended Appeal. Further that the Application is made with utmost good faith and without any undue delay. 18. In response, the Respondent filed a **Replying Affidavit** sworn on 30th October, 2025 and opposed the Application, terming it an abuse of the court process, frivolous, and ambiguous. She urged that it be dismissed with costs. 19. She deposed that the Applicants have been aware of this judgement since 14th July 2025 when the judgement was read in the presence of their Advocate Ms Mwira and they were granted 30 days stay of execution; therefore, they had ample time and opportunity to file an appeal if indeed they were aggrieved by the Judgement of the trial Magistrate. 20. The Respondent deposed that the execution process commenced on 3rd October 2025; therefore, the Applicants waited for over three (3) months to come up with an application seeking leave to file an appeal out of time, with no sufficient reason given to Court as to why they waited for all that period. 21. It is stated that though it is true that the firm of Kimondo Gachoka & Co. Advocates was on record when the judgment was read, the firm that has filed the application herein only changed the names. The Advocates appearing in court are the same as those who appeared for Kimondo Gachoka & Co. Advocates; therefore, the Applicants cannot claim that the former Advocates failed to file an Appeal. 22. It is further stated that the Applicant's application is an afterthought and a tactic of staying execution of a just judgment, the reason being that the accident which led to the filing of the suit occurred on 10th May 2023. Having waited for over 2 years to obtain the judgment, the Respondent terms it unfair to grant the Applicants time to appeal, which will take an unknown period of time. 23. Further, that the Auctioneers had already served the proclamation notice and incurred costs and is likely to pass his bill of costs to her. It is her case that the Applicant's insurer is using delay tactics by seeking a stay of execution granted by the trial court. Hence it would be in the interest of justice and equity that the applicants be compelled to pay the entire decretal amount. 24. It is prayed that if this Court is inclined to allow the application, then the applicants be ordered to pay the Auctioneer's costs in full, pay half of the decretal sum to her and deposit the other half in Court pending the hearing and determination of the intended appeal. 25. None of the parties filed submissions, and therefore, they relied on the Affidavits. **Analysis and determination** 1. The Court has considered the Application before it, together with the Supporting and opposing Affidavits. To start with, **Section 79G** of the **Civil Procedure Act** stipulates that:- **“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 to the appellant 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 a good and sufficient cause for not filing the appeal in time.”** 1. Further, **Section 95** of the **Civil Procedure Act** provides that:- ***“Where any period is fixed or granted by the court for the doing of any act prescribed or allowed by this Act, the court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired.”*** 1. From the above provisions of the law, it is clear that the authority to extend or enlarge time lies within the discretion of this Court. However, that discretion is not exercised automatically. The Applicant must first demonstrate to the Court that there exists a good and sufficient reason to justify the delay in lodging the appeal. 2. The guiding principles on the exercise of discretion to extend time were articulated in **Nicholas Kiptoo Korir arap Salat v Independent Electoral and Boundaries Commission & 7 Others *[2014] KESC 12 (KLR****)* where the Supreme Court held:- ***“ This being the first case in which this Court is called upon to consider the principles for extension of time, we derive the following as the under-lying principles that a Court should consider in exercise of such discretion:*** 1. ***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;*** 2. ***A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court*** 3. ***Whether the court should exercise the discretion to extend time, is a consideration to be made on a case-to-case basis;*** 4. ***Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;*** 5. ***Whether there will be any prejudice suffered by the respondents if the extension is granted*** 6. ***Whether the application has been brought without undue delay; and*** 7. ***Whether in certain cases, like election petitions, public interest should be a consideration for extending time."*** 8. In the present case, the trial Court’s judgment was delivered on 14th July, 2025. The instant Application was filed on 17th October, 2025, which was about ninety-five (95) days after delivery of the judgment and sixty (65) days after lapse of the statutory period. It therefore follows that the delay is inordinate. 9. The Applicants attribute the delay in lodging their appeal to transition within their insurer’s office, which allegedly resulted in late instructions. However, beyond this explanation, they have not disclosed what steps, if any, were taken during the intervening three months to safeguard their right of appeal. Consequently, there is no satisfactory account of the period of inaction. 10. Regarding the Applicants laying blame on their Advocates for procedural lapses, that should not be visited even on the Respondent who has nothing to do with such lapses. Indeed, while citing the Court of Appeal decision by P.N.Waki JA in ***Bi-Mach Engineers Limited v James Kahoro Mwangi [2011] KECA 242 (KLR),*** F. Ochieng JA held in ***Moiyo v Kuto* *[2024] KECA 1509 (KLR)***:- ***“[25] This Court has made it clear that a case does not belong to the advocate who was representing a party. The case remains the property of the party, at all times.*** ***[26]. Therefore, the onus is upon a party to follow up with his or her advocate, to ascertain the status of the case. In this case, the applicant failed to provide material from which the court could verify that he had been pursuing his advocate, to keep abreast of the developments in his case. It is thus my considered opinion that the applicant must shoulder the consequences of his inordinate and unexplained inaction.”*** 1. In this regard, where the Applicants were minded to appeal, diligence required that they actively engage their insurer or advocates to ascertain the progress of either the appeal or the settlement. The Applicants, however, have placed nothing before this Court to demonstrate any effort made to follow up during the period of delay. It is not enough to shift responsibility to the insurer or counsel. 1. The Applicants remained inactive and only moved the Court after execution had commenced. The explanation offered does not amount to an excusable mistake, and in the circumstances herein, this Court declines to allow the Applicants leave to file the intended appeal. Leave having been denied, the prayer for stay of execution cannot be granted. 2. Consequently, the Application dated 15th October, 2025 lacks merit and is therefore dismissed in its entirety with costs to the Respondent. **Dated and signed at Nairobi this 10th Day of August, 2026.** **PATRICIA GICHOH** **JUDGE** **Delivered at Nakuru this 12th Day of August, 2026.** **………………………** **DR. JOSEPH SERGON** **JUDGE**