https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8232

Seamus Trading Company v Gachie t/a Blaze (Civil Appeal E128 of 2024) [2026] KEHC 8232 (KLR) (11 June 2026) (Ruling) Neutral citation: [2026] KEHC 8232 (KLR) Republic of Kenya In the High Court at Murang'a Civil Appeal E128 of 2024 TW Ouya, J June 11, 2026 Between Seamus Trading Company Applicant and Chege Gachie t/a Blaze Respondent (Being an application for leave to appeal out of time and for stay of execution of the judgment in Murang’a Civil Case No. 122 of 2019 delivered on 26th March 2024) Ruling 1.The application before this Court is brought under Section 79G of the Civil Procedure Act and Order 22 Rule 22(1) of the Civil Procedure Rules. The Applicant seeks leave to appeal out of time against the judgment in Murang’a Civil Case No. 122 of 2019 and delivered on 26th March 2024 and a stay of execution of that decision. The application is premised on the ground that the delay in filing the appeal was occasioned by the court’s delay in typing and supplying certified copies of the judgment and proceedings, for which the Applicant should not be blamed. 2.In support of the application, the Applicant swore an affidavit stating that the judgment of the lower court was delivered on 26th March 2024. On 10th April 2024, his advocate applied for certified copies of the proceedings and judgment, which were only supplied on 12th September 2024, by which time the statutory period for filing an appeal had lapsed. He avers that he has a good appeal, annexes a draft memorandum of appeal, and contends that unless stay of execution is granted, the Respondent will proceed with execution and render the appeal nugatory. 3.The Respondent opposes the application through a replying affidavit. He argues that the Applicant had thirty days from the date of judgment to lodge an appeal but failed to do so. He contends that the delay of six months is inordinate, that no sufficient explanation has been offered, and that the Applicant has not demonstrated an arguable appeal. He further states that allowing the application would prejudice him by denying him the fruits of his judgment. He therefore urges the Court to exercise its discretion against the Applicant and dismiss the application. 4.The applicant submitted that the delay in lodging the appeal was not of his own making but was occasioned by the court, which took five months to prepare and supply certified copies of the judgment and proceedings. He emphasizes that he applied for the copies on 10th April 2024, received them only on 12th September 2024, and promptly filed the present application on 17th September 2024. He argues that this demonstrates his clear intention to appeal immediately after judgment and that he acted without undue delay once the documents were supplied. 5.The Applicant further submits that he stands to suffer irreparable loss if the application is not allowed, while the Respondent will not suffer prejudice. He contends that the intended appeal raises valid grounds with high chances of success, as shown in the annexed draft memorandum of appeal 6.He maintains that the Respondent’s Replying Affidavit contains mere allegations without substantive evidence and does not demonstrate any legal basis to oppose the application. In his view, the interests of justice demand that he be granted leave to appeal out of time and that execution of the lower court 7.The Respondent submits that under Section 79G of the Civil Procedure Act, an appeal from a subordinate court must be filed within thirty days, unless the court certifies time taken to prepare and deliver copies of the decree or order. He argues that the Applicant has not shown good and sufficient cause for failing to file the appeal in time, as the only reason advanced is delay in typing proceedings, without attaching a certificate of delay or correspondence to prove follow‑up. 8.He relies on the Supreme Court decision in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR, which held that extension of time is discretionary and requires a satisfactory explanation for delay, absence of undue delay, and consideration of prejudice. He also cites County Executive of Kisumu v County Government of Kisumu & 8 Others [2017] KESC 16 (KLR), which emphasized that delay in obtaining typed proceedings is not automatically sufficient cause, and 9.Further, he refers to Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] eKLR and Kamau v Macharia & 5 Others [2022] KECA 969 (KLR), where the Court of Appeal stressed that a plausible and satisfactory explanation for delay is the key to unlocking the court’s discretion. He contends that the Applicant has not provided such an explanation, and the application appears to be an afterthought. 10.The Respondent submits that granting the application would cause undue prejudice by denying him the fruits of his judgment, and reiterates the principle that litigation must come to an end. He therefore prays that the application be dismissed with costs. 11.I have carefully considered the application together with the parties’ pleadings and submissions through their Counsel and identified the following issues for determination:i.Whether the Applicant has established sufficient cause to warrant leave to appeal out of time under Section 79G of the Civil Procedure Act.ii.Whether the Applicant has satisfied the conditions for grant of stay of execution.iii.What orders should issue. 12.Section 79G of the Civil Procedure Act vests this Court with discretion to admit an appeal out of time upon demonstration of good and sufficient cause. 13.In Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR, the Supreme Court stated:“Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party... the whole period of delay should be declared and explained satisfactorily.” 14.Similarly, in Mutiso v Mwangi [1997] eKLR, the Court of Appeal where the court held that the decision whether or not to extend time is essentially discretionary and that the court considers the length of delay, reason for delay, chances of appeal succeeding, and degree of prejudice. 15.The evidence in the instant case shows that judgment was delivered on 26th March 2024 and proceedings were requested promptly but supplied 5 months later on 12th September 2024. The delay is therefore attributable to the court. Once availed, the Applicant acted without undue delay. 16.In Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] eKLR, the Court reiterated that a plausible and satisfactory explanation for delay is the key that unlocks the court’s discretion. 17.Based on the above, I am satisfied that the delay has been satisfactorily explained. 18.On stay of execution Order 42 Rule 6 of the Civil Procedure Rules sets out the conditions for stay of execution: substantial loss, absence of unreasonable delay, and provision of security. However, the Applicant has not demonstrated what substantial loss he personally stands to suffer beyond the ordinary process of execution. In Butt v Rent Restriction Tribunal [1982] KLR 417, the Court held:“The power to grant stay is discretionary and should be exercised in such a way as not to render an appeal nugatory.” 19.In Kenya Shell Ltd v Kibiru [1986] KLR 410, it was held:“Substantial loss is the cornerstone of the jurisdiction for granting stay.” 20.Further, in Mukuma v Abuoga [1988] KLR 645, the Court stated:“Substantial loss is not established merely because execution has been put in motion.” 21.Based on the above authorities, the evidence before the court shows that the Applicant has not strictly demonstrated substantial loss. However, the Court must balance the right of appeal with the Respondent’s right to enjoy the fruits of judgment. 22.The Applicant argues that unless stay is granted, the Respondent will execute and render the appeal nugatory. It therefore behooves this court to consider whether the appeal would be rendered nugatory if no stay is granted. It is trite that the power to grant stay of execution is discretionary under Order 42 Rule 6 of the Civil Procedure Rules, and the Court may impose conditions to balance the rights of both parties. The Court of Appeal in Butt v Rent Restriction Tribunal [1982] KLR 417 held that appellate court will not interfere with the exercise of discretion of a lower court unless it is satisfied that the decision was based on a misdirection in law, misapprehension of facts, consideration of irrelevant factors, failure to consider relevant factors, or that the decision is plainly wrong. 23.Further, under Section 3A of the Civil Procedure Act and Article 159(2)(d) of the Constitution, this Court retains inherent jurisdiction to make orders necessary for the ends of justice. Thus, even where a party has not fully satisfied the requirements for stay, the Court may, suo moto, grant conditional stay to preserve the subject matter and ensure that the right of appeal is not rendered illusory. 24.In the instant case, while the Applicant has not demonstrated substantial loss in the strict sense, the grant of leave to appeal out of time would be defeated if execution proceeds unchecked. To balance the Respondent’s right to enjoy the fruits of judgment with the Applicant’s right of appeal, I find it just to grant a conditional stay and order that the applicant deposits Kshs. 500,000 in court within fourteen (14) days of this ruling as security for the due performance of the decree. 25.On the issue of prejudice to be suffered by the Respondent, I find that he is entitled to enjoy the fruits of his judgment. However, that entitlement must be balanced against the Applicant’s constitutional right of appeal. Given that the delay in lodging the appeal was occasioned by the court, it would be unjust to shut out the Applicant from the appellate process. The prejudice to the Respondent can be mitigated by requiring the Applicant to provide security for the due performance of the decree. The ratio decidendi is therefore that conditional stay is warranted to preserve the appeal while safeguarding the Respondent’s rights. 26.In the result, I find that the Applicant has demonstrated sufficient cause to warrant leave to appeal out of time. However, the conditions for stay of execution have not been fully satisfied. This court is therefore inclined to issue a conditional stay of execution of the judgment in Murang’a Civil Case No. 122 of 2019 is hereby granted pending the hearing and determination of the intended appeal. This stay is granted suo moto under the Court’s discretionary and inherent powers pursuant to Order 42 Rule 6 of the Civil Procedure Rules, Section 3A of the Civil Procedure Act, and Article 159(2)(d) of the Constitution, to ensure that the appeal is not rendered nugatory. 27.Accordingly, I make the following orders:i.Leave is hereby granted to the Applicant to file an appeal out of time against the judgment in Murang’a Civil Case No. 122 of 2019. The memorandum of appeal shall be filed within fourteen (30) days from the date hereof.ii.The stay is conditional upon the Applicant depositing Kshs. 500,000 in Court as security for the due performance of the decree within fourteen (60) days.iii.In default of compliance with ii. above, the stay shall automatically lapse.iv.Costs of this application shall abide the outcome of the appeal. DATED, SIGNED AND DELIVERED VIRTUALLY ON THIS 11TH DAY OF JUNE, 2026.HON. T. W. OUYA, OGWJUDGEIn the presence of:Ms. Kirimi for RespondentKaruga Wandai for ApplicantNyabuto – Court Assistant