https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8102

Quick Shuttle/Kwich Shuttle Services v Mutola & another (Suing as Legal Representatives of the Estate of Patrick Mavere Tela - Deceased) (Civil Appeal E046 of 2025) [2026] KEHC 8102 (KLR) (4 June 2026) (Ruling) Neutral citation: [2026] KEHC 8102 (KLR) Republic of Kenya In the High Court at Kakamega Civil Appeal E046 of 2025 S Mbungi, J June 4, 2026 Between Quick Shuttle/Kwich Shuttle Services Appellant and Mary Mutola 1st Respondent Job Fuchingo Muchiti 2nd Respondent Suing as Legal Representatives of the Estate of Patrick Mavere Tela - Deceased Ruling 1.Before this Court is the Notice of Motion dated 18th September 2025 brought under Order 22 Rule 22 and Order 42 Rule 6 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act, Articles 50 and 159(2) of the Constitution and all other enabling provisions of the law. 2.The Applicant seeks orders of stay of execution of the judgment and decree issued in Butali PMCC No. 159 of 2022 pending the hearing and determination of this appeal. The Applicant also seeks extension of time to comply with the conditions imposed by this Court in Kakamega HCCCMISC No. E001 of 2025 and Kakamega HCCCMISC No. E002 of 2025. 3.The application is supported by the affidavit of Benjamin Otwane 4.The Applicant depones that judgment was entered against it in Butali PMCC No. 159 of 2022 on 4th December 2024 for Kshs. 3,449,724/= together with costs and interest. 5.It is contended that although leave to appeal out of time was granted by this Court on 4th April 2025 subject to certain conditions, compliance was not achieved within the stipulated period due to circumstances beyond the Applicant’s control. 6.The Applicant attributes the delay to changes in legal representation by its insurer, Directline Assurance Company Limited, internal management disputes affecting the insurer, freezing of accounts and operational disruptions which allegedly affected the processing of court payments and compliance with the Court’s directives. 7.The Applicant further contends that execution is imminent and that warrants of attachment have already been sought against its motor vehicle. It argues that unless stay is granted, the appeal will be rendered nugatory. 8.The Applicant further avers that the Respondents may not be able to refund the decretal sum should the appeal ultimately succeed. 9.The Applicant expresses willingness to furnish security by depositing one-half of the decretal sum. 10.The application is opposed. The Respondents filed written submissions contending that the Applicant had previously been granted conditional stay by this Court on 4th April 2025 but failed to comply with the conditions imposed. They argue that the present application was only prompted by imminent execution and is therefore an afterthought. 11.The Respondents further submit that the Applicant has not demonstrated sufficient cause for non-compliance with the earlier orders and that disputes involving Directline Assurance Company Limited cannot excuse the Applicant from obeying court orders. They also challenge the competence of the application on the basis of Order 9 Rule 9 of the Civil Procedure Rules. 12.I have considered the application, the supporting affidavit, the rival submissions and the material placed before the Court. Issues for Determination 13.The issues arising for determination are:a.Whether the application is competent in view of Order 9 Rule 9 of the Civil Procedure Rules;b.Whether the Applicant has established sufficient cause for extension of time to comply with the orders issued on 4th April 2025;c.Whether the Applicant has satisfied the conditions for grant of stay of execution pending appeal;d.What orders should issue as to costs. Analysis and Determination a. Whether the application is competent in view of Order 9 Rule 9 of the Civil Procedure Rules 14.The Respondents contend that the firm of M/s KRK Advocates LLP is improperly on record having come on record after judgment without complying with Order 9 Rule 9 of the Civil Procedure Rules. 15.Order 9 Rule 9 provides that where there is a change of advocate after judgment, such change shall not be effected without leave of the court or upon a consent filed between the outgoing advocate and the incoming advocate. 16.The rationale behind the provision was explained in S. K. Tarwadi v Veronica Muehlmann [2019] eKLR, where the Court observed that the rule was intended to protect advocates from clients who may seek to avoid obligations owed to them after judgment. 17.I have perused the record and note that documents relating to the transition of representation were filed. More importantly, no prejudice has been demonstrated by the Respondents arising from the change of advocates. 18.Guided by Article 159(2)(d) of the Constitution and the overriding objective under Sections 1A and 1B of the Civil Procedure Act, I am not persuaded that the application ought to be struck out on this ground. 19.I therefore find that the application is properly before the Court. b. Whether the Applicant has established sufficient cause for extension of time to comply with the orders issued on 4th April 2025 20.The Respondents correctly point out that by a ruling delivered on 4th April 2025 in Kakamega HCCCMISC No. E001 of 2025 and HCCCMISC No. E002 of 2025, this Court granted leave to appeal out of time and conditional stay of execution upon the Applicant depositing one-half of the decretal sum within the period specified by the Court.It is not disputed that the Applicant failed to comply with those conditions. 21.The explanation advanced is that there were multiple changes of advocates, management disputes affecting Directline Assurance Company Limited, freezing of accounts and operational disruptions which affected the processing of instructions and payments. 22.The Respondents submit that Directline Assurance Company Limited is not a party to these proceedings and that its internal disputes cannot justify non-compliance with court orders. 23.Litigation belongs to the litigant and not the insurer. Ordinarily, disputes affecting an insurer cannot excuse a litigant from complying with court orders. 24.Nevertheless, the Applicant has annexed material demonstrating the existence of disputes affecting the insurer that was handling the matter on its behalf. The Court cannot ignore those circumstances altogether. 25.The principles governing extension of time were settled by the Supreme Court in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR, where the Court held that extension of time is an equitable remedy available at the discretion of the Court upon sufficient cause being shown. 26.While the explanation offered does not portray diligence on the part of the Applicant, I am satisfied that sufficient cause has been shown to justify a limited enlargement of time. 27.The Court must balance the right of a successful litigant to enjoy the fruits of judgment against the right of an appellant to have an appeal heard on its merits. c. Whether the Applicant has satisfied the conditions for grant of stay of execution pending appeal 29.The principles governing stay of execution are set out under Order 42 Rule 6(2) of the Civil Procedure Rules. 30.An applicant must demonstrate substantial loss, absence of unreasonable delay and willingness to furnish security for the due performance of the decree. 31.In Kenya Shell Limited v Benjamin Karuga Kibiru & Another [1986] KLR 410, the Court of Appeal held that substantial loss is the cornerstone of an application for stay. 32.The Applicant contends that execution is imminent and that warrants of attachment have already been issued against its property. 33.The Respondents submit that the Applicant ignored the earlier orders of this Court and only moved the Court after execution proceedings commenced. 34.That submission is not without merit. The Applicant was accorded an opportunity to comply with the orders issued on 4th April 2025 but failed to do so. The Court therefore approaches the present application with caution. 35.Nevertheless, the decretal sum exceeds Kshs. 3,400,000/-million and is substantial. The Applicant has expressed apprehension that the Respondents may not be able to refund the decretal sum should the appeal succeed. 36.In National Industrial Credit Bank Ltd v Aquinas Francis Wasike & Another [2006] eKLR, the Court of Appeal held that once an applicant raises a reasonable apprehension regarding the respondent’s ability to refund, the evidential burden shifts to the respondent. 37.No evidence has been placed before the Court demonstrating the Respondents’ ability to refund the decretal amount should the appeal succeed. 38.I am therefore persuaded that substantial loss has been established. 39.On security, the Applicant has expressed willingness to deposit one-half of the decretal sum. 40.Security serves to balance the competing interests of the parties by safeguarding the Respondents’ decree while preserving the Applicant’s right of appeal. 41.Given the Applicant’s previous failure to comply with similar conditions, any stay granted must be conditional and subject to strict timelines. 42.I am satisfied that the interests of justice would be served by granting the Applicant a final opportunity to comply with the security requirements while preserving the Respondents’ right to execute in default. Conclusion 43.Consequently, the Notice of Motion dated 18th September 2025 is allowed on the following terms:i.Time for compliance with the conditions imposed in the ruling delivered on 4th April 2025 in Kakamega HCCCMISC No. E001 of 2025 and HCCCMISC No. E002 of 2025 is hereby enlarged.ii.There shall be a stay of execution of the judgment and decree in Butali PMCC No. 159 of 2022 pending the hearing and determination of this appeal.iii.The stay granted herein is conditional upon the Applicant depositing one-half (½) of the decretal sum in an interest-earning joint account in the names of the advocates for the parties within thirty (30) days from the date of this ruling.iv.In default of compliance with order (iii) above, the stay granted herein shall automatically lapse without further reference to the Court and the Respondents shall be at liberty to proceed with execution.v.Costs of the application shall abide the outcome of the appeal. 43.It is so ordered. 44.Right of Appeal 30 days. 45.Mention for directions on the main Appeal on 23.7.2026. DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 4TH DAY OF JUNE, 2026.S.N. MBUNGIJUDGEIn the presence of:-CA: Zilda/VelmaParties absent though aware of the ruling date , the Court Assistant to upload the ruling on the CTS forthwith.