https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8692

Kilonzo v Munyoki (Miscellaneous Application E155 of 2025) [2026] KEHC 8692 (KLR) (19 June 2026) (Ruling) Neutral citation: [2026] KEHC 8692 (KLR) Republic of Kenya In the High Court at Machakos Miscellaneous Application E155 of 2025 BM Musyoki, J June 19, 2026 Between Patrick Mutava Kilonzo Applicant and Thomas Muema Munyoki Respondent Ruling 1.The applicant approached this court through a notice of motion dated 8th May 2025 which is supported by his affidavit sworn on the same date. The application prayed for the following orders;1.That this application be certified urgent, service thereof be dispensed with and it be heard ex-parte at the first instance.2.That this Honourable Court be pleased to grant interim stay of execution of the judgment and/or decree issued by Honourable P. Wechuli, Principal Magistrate in Kithimani MCCC 193 of 2022 pending the hearing and determination of this application.3.That this Honourable Court be pleased to order the release of the applicant's attached property pending the determination of the application and subsequent intended appeal herein.4.That this Honourable Court be pleased to extend time and grant leave to the applicant/intended appellant to lodge his memorandum of appeal out of time against the judgment entered against him by the Honourable P. Wechuli, Principal Magistrate in Kithimani MCCC 193 of 2022.5.That this Honourable Court be pleased to grant stay of execution of the judgment and/or decree issued by Honourable P. Wechuli, Principal Magistrate in Kithimani MCCC 193 of 2022 pending the full hearing and determination of the intended appeal herein.6.That the application be heard inter partes on such date and time as this Honourable Court may direct.7.That this Honourable Court be pleased to give favourable terms as to the depositing of security for the appeal while considering the financial status of the applicant.8.That the costs of this application abide the outcome of the intended appeal.9.That this Honourable Court be pleased to issue any other order and/or direction it deems fit to grant in the circumstances. 2.The applicant depones in his affidavit in support of the application that the judgment he intends to appeal was delivered on 18-07-2024. In the judgment, the respondent was awarded Kshs 1,000,000.00 for general damages and Kshs 9,590.00 for special damages. He has added that the respondent has commenced execution by obtaining warrants of attachment dated 28-04-2025 and issuing proclamation notice dated 2-05-2025. 3.The applicant swears that the delay in filing the appeal was occasioned by his insurer’s predicaments which were caused by disturbance in its operations including freezing of its bank accounts, a system outage that led to loss of its files and vandalism of their offices. In support of this allegation, he has exhibited a court order dated 6th June 2024 issued in Milimani Commercial Courts miscellaneous civil application number E470 of 2024 and some undated media statement from the acting Principal Officer of Directline Assurance Company. He claims that for this reason, the insurer was unable to follow up on statements of the claims or issuance of further instructions to the advocates who were handling the matter. 4.In his further plea, the applicant states that the decretal sum is substantial and if the same is paid to the respondent, he will be unable to recover in the event the intended appeal is unsuccessful since the respondent has not disclosed his financial liquidity and this will render the appeal nugatory. 5.The respondent opposed the application through his replying affidavit sworn on 25th July 2025 in which he depones that the application does not meet the threshold for orders of stay of execution and extension of time. He adds that he is a successful businessman in Sofia market and renown minister of the Gospel Outreach Church Matuu and in the event the appeal succeeds, he will be able to refund any sums required of him. 6.The respondent urges that in the event this court grants the application, the same should be on condition that he be paid half of the decretal sum and the balance be deposited in a joint interest earning account in the names of both advocates for the parties. He concludes by stating that the application and the intended appeal are an afterthought and asks that the application be dismissed. 7.The applicant does not seem to be keen in prosecuting this application. After he was granted interim orders on 12-05-2025, the applicant has not filed any submissions despite the court’s repeated directions on the same. On 19-09-2025, his advocate told Honourable Lady Justice Rhoda Rutto that he had been unwell and for that reason he had not filed his submissions and the court granted him more time and extended the interim orders. Come 25-11-2025, the applicant had not filed submissions and the court went on to vacate the interim orders and gave more directions on filing of submissions. The applicant did not appear for mention on 2-02-2026 and on 27-02-2026 when I reserved this matter for ruling. I have gone through the case tracking system and the only submissions therein are by the respondents dated 26-01-2026. 8.I will start with the prayers for leave to file the appeal out of time. The conditions an applicant must satisfy as the court considers while dealing with an application for extension of time is whether there are justifiable reasons for the delay in filing the appeal, whether the appeal is arguable and whether there would be prejudice on the respondent which cannot be compensated by an award of costs. It was held in Dilpack Kenya Limited v William Muthama Kitonyi [2018] KEHC 4858 (KLR), it was held that;“As to the principles to be considered in exercising the discretion whether or not to enlarge time in First American Bank of Kenya Ltd vs. Gulab P Shah & 2 Others Nairobi (Milimani) HCCC NO. 2255 of 2000 [2002] 1 EA 65 the Court set out the factors to be considered in deciding whether or not to grant such an application and these are (i). the explanation if any for the delay; (ii). the merits of the contemplated action, whether the matter is arguable one deserving a day in court or whether it is a frivolous one which would only result in the delay of the course of justice; (iii). Whether or not the Respondent can adequately be compensated in costs for any prejudice that he may suffer as a result of a favourable exercise of discretion in favour of the applicant." 9.The decision whether or not to grant leave to file appeal out of time is discretionary. The court should consider peculiar circumstances surrounding each application that comes before it. In my view, to deserve a discretionary order which for all intends and purposes is an equitable relief, the applicant must exhibit sincerity and transparency in giving their reason for the delay. The Court of Appeal held in Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] KECA 701 (KLR) that;“The law does not set out any minimum or maximum period of delay. All it states is that any delay should be satisfactorily explained. A plausible and satisfactory explanation for delay is the key that unlocks the court’s flow of discretionary favour. There has to be valid and clear reasons, upon which discretion can be favourably exercisable.’ 10.I have considered the reasons given by the applicant for the delay and in my view, they do not manifest of sincerity. First there is nothing to show that the applicant’s motor vehicle which caused the accident in question was insured by Directline Assurance Company Limited. Assuming that was the position, the applicant has not exhibited any communication between its advocates and the insurer after the judgement was delivered. 11.The applicant’s annexure ‘PMK1’ which is the trial court’s judgment shows that his advocate who was present during delivery of the judgment asked for a stay of execution for thirty days which was granted. Within that period, the applicant’s advocates would be expected to communicate with the insurer for further instructions. In my analysis, there is no genuine reason given and the applicant’s advocate’s silence only to emerge after the applicant’s assets were proclaimed in April 2025 is an indication that the application was conceived as an afterthought. 12.The applicant has given freezing of its accounts, system outage and vandalism of his insurer’s office as reasons for the delay. The court order he has exhibited is dated 6th June 2024. The order does not tell us what specific orders were issued and one cannot assume that they were in the nature of freezing the insurer’s accounts. The orders were to last until 18-06-2024 which was a month before the judgment was delivered and there is no evidence that they were extended. Further, there is no demonstration of how the court orders affected the operations of the insurer if at all. 13.The applicant purports that the evidence of vandalism is the undated media release. The media statement talks of vandalism having been on 10th September 2024 which was about two months after the judgement. Further, the statement states that the vandalisms would not paralyse the operations of the company. In this regard, this document goes against the applicant’s argument that the alleged vandalism was one of the reasons for failure to file the appeal in time. 14.It is my position that, a party who comes to court and gives unplausible reasons in an effort to get a discretionary order does not deserve the court’s favour. The applicant should be open and sincere and where the reasons given appear to the court to be afterthoughts or craftiness meant to mislead the court, it would amount to approaching equity with unclean hands. It is trite that he who comes to equity must come with clean hands. Tainted hands would not attract favour from the court. The Court of Appeal held in John Njue Nyaga v Nicholas Njiru Nyaga & another [2013] KECA 235 (KLR) that;“It is our considered view that one who comes to equity must come with clean hands and equity frowns upon secrecy and underhand dealings." 15.Following the above, I find and hold that the applicant has failed to convince this court that the explanation for delay in filing the appeal is excusable. The prayer for leave to file appeal out of court is hereby denied. 16.Having dismissed the prayers for leave, the prayers for stay of execution must fall by the roadside. There would be no legs for the stay orders to stand on. The same are also denied. The consequence is that the entire application is not merited and it is hereby dismissed with costs to the respondent. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 19TH DAY OF JUNE 2026.B.M. MUSYOKIJUDGE OF THE HIGH COURT.Ruling delivered in presence of Miss Kiroko for the applicant and Miss Sirma holding brief for Mr. Mwihia for the respondent.