https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11718

Patel & another v Maingi t/a Skyward Tutors (Civil Appeal E280 of 2025) [2026] KEHC 11718 (KLR) (Civ) (28 July 2026) (Ruling) Neutral citation: [2026] KEHC 11718 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Civil Civil Appeal E280 of 2025 LP Kassan, J July 28, 2026 Between Kush Rajnikant Patel 1st Appellant Christa Patel 2nd Appellant and Zakayo Maingi t/a Skyward Tutors Respondent Ruling 1.Before this Court is the Notice of Motion dated 6th October 2025 seeking principally an order of stay of execution pending the hearing and determination of the appeal against the Judgment of Hon. T.K. Nambisia (Adjudicator) delivered on 28th August 2025 in Milimani SCCCOMM E7732 OF 2024. 2.The application is brought under Order 42 Rule 6, Order 51 Rule 1 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act, Article 159 (2) (d) of the constitution and all other enabling provisions of the law. 3.The Applicant contends that the intended appeal is arguable because the learned Adjudicator allegedly delivered judgment outside the statutory sixty-day period prescribed under the Small Claims Court Act and further failed to consider the evidence tendered in support of the counterclaim. They filed submissions dated 3rd December 2025. 4.The Respondent opposed the application via a Replying affidavit dated 21/10/25 sworn by one Zakayo Maingi and filed submissions dated 29th January 2026. He asserts that time is still running, no substantial loss has been proven and the Applicant has not shown any willingness to furnish security. 5.Having considered the Motion, the affidavits and submissions filed by both counsels, the issues arising are:1.Whether there exists a competent appeal before this Court.2.Whether the Applicant has satisfied the requirements for stay pending appeal. Whether there is a competent appeal 6.The impugned judgment was delivered on 28th August 2025.The Memorandum of Appeal was filed on 6th October 2025. Counsel argued that the same was uploaded on the portal on 27th September 2025. Time started running when it was delivered and not when it was uploaded. 7.Section 79G of the Civil Procedure Act provides:“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..." 8.The proviso empowers the Court to admit an appeal out of time only after the appellant satisfies the Court that there was good and sufficient cause for not filing the appeal in time. The Applicant has not sought enlargement of time. The only reason given was that it was uploaded on 27th September. More importantly, no prayer exists asking this Court to validate the appeal filed outside time.The legal position is now settled by the Supreme Court. 9.In Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others, SC Application No.16 of 2014; [2014] eKLR, the Supreme Court held that extension of time is not a right but an equitable remedy available only to a deserving party who lays a proper basis before the Court. The Court further held that filing an appeal first and thereafter asking the Court to regularize the illegality is impermissible. 10.Earlier, the Court of Appeal in Nicholas Kiptoo Arap Korir Salat v IEBC & 6 Others [2013] eKLR emphasized that statutory timelines are neither cosmetic nor optional and must be complied with unless properly enlarged by the Court. This Court is bound by those decisions pursuant to Article 163(7) of the Constitution. 11.Accordingly, the Memorandum of Appeal filed on 6th October 2025, without leave, remains incompetent. There is therefore no competent appeal capable of anchoring the present application. Whether stay can issue where there is no competent appeal 12.The jurisdiction donated by Order 42 Rule 6 presupposes the existence of a valid appeal. 13.Stay pending appeal is intended to preserve the subject matter pending determination of an appeal that is properly before the appellate court. Where no competent appeal exists, there is nothing upon which the discretionary jurisdiction under Order 42 Rule 6 may attach. The Court cannot exercise discretion in aid of proceedings that are themselves incompetent. To do so would amount to validating a process commenced contrary to statute. Whether the Applicant has satisfied Order 42 Rule 6 14.Even assuming, for purposes only, that the appeal was competent, the Applicant would still be required to satisfy the conditions under Order 42 Rule 6(2), namely— The application was made without unreasonable delay; Substantial loss may result unless stay is granted; and Security for the due performance of the decree has been furnished. These requirements are cumulative. 15.The Court of Appeal in Halai & Another v Thornton & Turpin (1963) Ltd [1990] KLR 365 held that all the conditions under Order 42 Rule 6 must be satisfied before stay can issue. 16.Similarly, in Butt v Rent Restriction Tribunal [1982] KLR 417, the Court of Appeal held that although the jurisdiction to grant stay is discretionary, that discretion must be exercised judicially and upon settled principles. The Applicant has not demonstrated substantial loss. The supporting affidavit merely states that the appeal is arguable. 17.An arguable appeal, however strong, is not itself evidence of substantial loss. Further, execution has not commenced. The trial court itself granted a 30-day stay of execution in the judgment. 18.There is no evidence that warrants of attachment have issued, that proclamation has been undertaken, or that the Respondent has commenced execution. The apprehension expressed by the Applicant therefore remains speculative and not founded on any actual risk. Most significantly, no security whatsoever has been offered. Security is a mandatory statutory requirement and not an optional consideration. 19.The Court of Appeal in Focin Motorcycle Co. Limited v Ann Wambui Wangui & Another [2018] eKLR reiterated that security is intended to guarantee due performance of the decree and forms one of the indispensable conditions for grant of stay. The Applicants have only submitted that they are willing to comply with directions on security as maybe made. However, they urge the court to determine the amount since the entire decretal sum would paralyze them, is disproportionate and will bar the appeal. This demonstrates reluctance to comply with any conditions to deposit the decretal sum. Accordingly, even if the appeal were properly before Court, the application would still fail. On the intended grounds of appeal 20.The Applicant argues that the intended appeal raises the issue that the Adjudicator delivered judgment outside the statutory sixty-day period and further failed to consider evidence relating to the counterclaim. 21.This Court deliberately refrains from making definitive findings on those complaints because doing so would amount to determining the merits of an appeal whose competence is itself in issue. It suffices to observe that however arguable those grounds may ultimately prove to be, they cannot confer jurisdiction where none exists. 22.Jurisdiction cannot be founded upon the perceived strength of an appeal but upon compliance with the law governing institution of appeals. Disposition 23.The Court finds; -a)The Judgment appealed from was delivered on 28th August 2025.b)The Memorandum of Appeal was lodged on 6th October 2025, outside the statutory period prescribed under Section 79G of the Civil Procedure Act.c)No application for leave to appeal out of time has been filed.d)Consequently, no competent appeal exists before this Court.e)In any event, the Applicant has failed to demonstrate substantial loss, has furnished no security, and there is no evidence that execution has commenced. 24.The Notice of Motion dated 6th October 2025 is therefore devoid of merit.It is hereby dismissed with costs to the Respondent. 25.It is so ordered. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 28TH DAY OF JULY, 2026.HON. L.P KASSANJUDGE