https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12755

Maridany v Ng'ang'a (Civil Appeal E308 of 2025) [2026] KEHC 12755 (KLR) (Civ) (30 July 2026) (Ruling) Neutral citation: [2026] KEHC 12755 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E308 of 2025 WA Okwany, J July 30, 2026 Between Richard Kipkorir Maridany Applicant and Margaret Wambui Ng'Ang'A Respondent Ruling 1.This ruling is in respect to two applications by the Applicant. The first is the Notice of Motion dated 15th October 2025 seeking leave to lodge an appeal out of time against the judgment of the Small Claims Court delivered on 21st August 2025. The second is the Notice of Motion dated 7th November 2025 seeking stay of execution of the said judgment pending the hearing and determination of the intended appeal. Both applications arise from the same judgment and were canvassed together by way of written submissions. 2.The Applicant attributes the delay in filing the appeal to ill health, contending that he was hospitalized between 18th September and 23rd September 2025, thereby rendering him incapable of issuing instructions to his advocates. He further contends that the intended appeal is arguable and that unless stay is granted, execution of the decree for Kshs.324,338 will render the appeal nugatory. 3.The Respondent opposes both applications, arguing that the delay has not been satisfactorily explained as the Applicant was represented by counsel throughout and that there is presently no competent appeal before the Court capable of sustaining an order of stay. She further states that the Applicant has failed to satisfy the requirements of Order 42 Rule 6 of the Civil Procedure Rules. 4.In support of the application for extension of time, the Applicant relied on Nicholas Kiptoo Arap Korir Salat vs. Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR, where the Supreme Court set out the principles governing the exercise of discretion in applications for extension of time; Leo Sila Mutiso vs. Rose Hellen Wangari Mwangi [1999] eKLR, which identified the factors of the length of delay, reasons for the delay, prospects of success and prejudice; and Shikunzi vs. Imbongo & Another [2025] KEHC 1814 (KLR), where the Court reiterated that the discretion under Section 79G must be exercised judiciously after considering the explanation for the delay and whether the intended appeal is arguable. 5.On the application for stay of execution, the Applicant relied on the principles under Order 42 Rule 6 of the Civil Procedure Rules and submitted that the Court should preserve the subject matter pending appeal. 6.The Respondent, on the other hand, relied on Karingi vs. Nyaga (Civil Appeal No. 43 of 2019) [2025] KEHC 1418 (KLR) for the proposition that stay of execution presupposes the existence of a competent appeal and that where leave is required, it must first be obtained before an appeal can be deemed valid. The Respondent also cited Hamisi Juma Mbaya vs. Asman Amakecho Mbaya [2018] eKLR on the mandatory conditions for grant of stay under Order 42 Rule 6, James Wangalwa & Another vs. Agnes Naliaka Cheseto [2012] eKLR for the principle that execution does not by itself amount to substantial loss, and Rotich vs. Loibun (Civil Appeal E059 of 2024) [2025] KEHC 8354 (KLR) on the need for strict compliance with the statutory threshold for grant of stay pending appeal. 7.Having considered the applications, affidavits, submissions and authorities cited, I find that the first issue is whether the Applicant has established sufficient cause for extension of time under Section 79G of the Civil Procedure Act. 8.The principles governing enlargement of time are settled in Nicholas Kiptoo Arap Korir Salat vs. IEBC & 7 Others [2014] eKLR, Leo Sila Mutiso vs. Rose Hellen Wangari Mwangi [1999] eKLR, and Shikunzi vs. Imbongo & Another [2025] KEHC 1814 (KLR). The principle emerging from the cited cases is that in an application for enlargement of time, the Court is required to consider the length of delay, the explanation given for the delay, the arguability of the intended appeal and the prejudice likely to be suffered by the Respondent. 9.In the instant case, I note that the impugned judgment was delivered on 21st August 2025 and the statutory period for appeal expired on 21st September 2025. The application for leave was filed shortly thereafter. The Applicant has annexed evidence showing that he was hospitalized during the period immediately preceding the lapse of the statutory timeline. 10.My finding is that even though the Respondent contends that counsel had knowledge of the judgment, the explanation offered by the Applicant is plausible and has not been displaced by contrary evidence. I also note that the delay is not inordinate, and that the draft memorandum of appeal raises arguable questions on liability and quantum which ought to be ventilated on appeal. 11.In the circumstances of this case, I am satisfied that sufficient cause has been shown to warrant the exercise of the Court's discretion under Section 79G of the Civil Procedure Act. 12.Having granted leave to appeal out of time, the application for stay of execution falls for consideration under Order 42 Rule 6 of the Civil Procedure Rules. The Applicant for stay must demonstrate substantial loss, that the application was made without unreasonable delay and willingness to furnish security. The principles enunciated in Butt vs. Rent Restriction Tribunal [1982] KLR 417, James Wangalwa & Another vs. Agnes Naliaka Cheseto [2012] eKLR and Hamisi Juma Mbaya vs. Asman Amakecho Mbaya [2018] eKLR remain applicable. 13.I find that the application for stay was filed promptly after the application for extension of time. The decretal sum is monetary in nature and there is no evidence regarding the Respondent's financial ability to refund it should the appeal succeed. 14.In the interests of preserving the subject matter while safeguarding the Respondent's right to enjoy the fruits of her judgment, I find that this is an appropriate case for conditional stay. The concern raised by the Respondent that no competent appeal existed is cured by the grant of leave in this ruling. My further finding is that the decision in Karingi vs. Nyaga (supra) is therefore distinguishable, as the Applicant now has leave to institute the appeal. 15.Accordingly, the Court makes the following orders:a.The Notice of Motion dated 15th October 2025 is allowed.b.The Applicant is granted leave to file and serve the Memorandum of Appeal out of time within fourteen (14) days from the date hereof, upon payment of the requisite court fees.c.The Notice of Motion dated 7th November 2025 is allowed on condition that the Applicant deposits the entire decretal sum of Kshs.324,338 in a joint interest earning account in the names of the parties' advocates, or in Court, within thirty (30) days from the date of this ruling.d.In default of compliance with Order (3), the stay issued herein shall automatically lapse.e.Costs of both applications shall abide the outcome of the appeal.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 30TH DAY OF JULY 2026HON W A OKWANYJUDGE