https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8694

Simba Coach SACCO v Kioko (Suing as the Personal Representative of the Estate of Faith Mutheu Mutua - Deceased) (Miscellaneous Application E012 of 2025) [2026] KEHC 8694 (KLR) (19 June 2026) (Ruling) Neutral citation: [2026] KEHC 8694 (KLR) Republic of Kenya In the High Court at Machakos Miscellaneous Application E012 of 2025 BM Musyoki, J June 19, 2026 Between Simba Coach Sacco Applicant and Ezekiel Mutua Kioko (Suing as the Personal Representative of the Estate of Faith Mutheu Mutua - Deceased) Respondent Ruling 1.The applicant’s notice of motion dated 20th January 2025 which is supported by affidavit sworn on the same date by one John O. Omutimba sought the following orders;1.Spent.2.Spent.3.That leave be granted to the applicant herein to lodge an appeal against the entire judgment and decree in Mavoko CMCC No. E279 of 2023 out of time.4.That this Honorable Court be pleased to stay execution of the decree in Mavoko CMCC No. E279 of 2023 pending hearing and determination of the intended appeal.5.That this Honourable Court allow the applicant to furnish the Court with security in the form of a Bank Guarantee from the Family Bank.6.Spent.7.That the costs of this application abide the outcome of the intended appeal.8.That this Honourable Court be pleased to issue any other order and/or direction it deems fit to grant in the circumstances. 2.The deponent of the supporting affidavit states that he is the insured of motor vehicle registration number KCU 528A which was in question in the lower court matter. This averment looks to me to be misplaced as the applicant is a company and the deponent has not disclosed his position or capacity in the said company. 3.The deponent goes on to claim that the lower court judgment that was delivered on 2nd July 2024 held the respondent 100 per cent liable and awarded Kshs 1,440,000.00 in general damages and Kshs 90,550.00 in special damages. 4.The applicant swears that the delay in filing the appeal was occasioned by the fact that the applicant was not aware that the judgement had been delivered since the same was to come on 18-06-2024 but the court informed the parties that it will be delivered on notice which notice was never given to the applicant. He adds that the applicant was not served with a judgement notice and the judgement was not available for the applicant to make informed decision on it. He claims further that the applicant has an arguable appeal and if the application is not allowed, it stands to suffer substantial loss and prejudice. He concludes by stating that the applicant is willing to provide security in form of a banak guarantee from Family Bank. 5.The respondent filed replying affidavit dated 11th September 2025 sworn by his advocate, one Evans M. Mochama in which he swears that the applicant was notified of the judgment through letter dated 3rd July 2024 which they received on 10th July 2024. Paragraph 4 of the affidavit purports to annex the letter as an exhibit but nothing has actually been annexed. He adds that the applicant’s hands are soiled and does not deserve discretionary orders for the laches of more than 14 months. He states further that the applicant had not met the threshold for securing orders of stay of execution and that the application is an attempt to circumvent the integrity and discretion of the court. He concludes by proposing that if the court was to grant the application, it should order that the applicant releases half of the decretal sum to his advocates and the balance be deposited in an interest earning account within 30 days. 6.In my analysis, the applicant seems not to be keen in prosecuting its application. After filing the application, the sequence of attendances shows lack of seriousness and commitment on the part of the applicant. Perhaps it hoped to get interim orders and stretch the execution of the decree the furthest. The applicant did not attend the first mention of 6-03-2025 on which date the court fixed the application for mention on 17-06-2026. The applicant never filed any submissions despite directions to that effect having been given on 28-10-2025. It stopped attending court and actually its the respondent who would serve them with mention notices. Even on 27-02-2026 when the matter was placed before me for a ruling date, the applicant was absent and not represented. 7.I will start with the prayer for leave to file the appeal out of time because that is the anchor of the whole application considering that if the same is denied, the other prayers will automatically collapse. I have considered the application and the respondent’s undated submissions filed on 9-02-2026. In order to secure leave to file an appeal out of time, the applicant must convince the court that it had excusable and plausible reasons for the delay or failure to file the appeal, their appeal is arguable and granting of the application would not cause prejudice to the respondent that cannot be compensated by an award of costs. 8.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.Orders for leave to file appeal out of time are discretionary. In exercising this discretion, the court considers circumstances and merits of each case. A party that approaches the court for discretionary orders must understand that the same are equitable reliefs and as such the applicant must be sincere, open and genuine in giving their reasons. Where a party appears to be misleading and lethargic in the manner they approach the court, it must be treated as a person who comes to equity with unclean hands. 10.Honourable Justice J. Mativo held in Sombesha v Attorney General & 2 others [2026] KECA 575 (KLR) that;“An applicant must provide a full, genuine, and reasonable explanation for the entire period of the delay. The applicant bears the burden of showing "good cause." The explanation must cover "every period of the delay". Gaps in the timeline where no explanation is provided often lead to the refusal of condonation. A reasonable explanation is a threshold requirement. If the explanation is non-existent or clearly insufficient, the court may refuse condonation without even looking at the "prospects of success" on the merits of the appeal. The reason must be one that a "reasonable person" in the applicant's position would find excusable." 11.In my analysis, the reasons given by the applicant for the delay are not sincere and genuine. It claims that judgement was to be delivered on 18-06-2024 but was adjourned to a date whose notice was to be given. The applicant has not exhibited any evidence to that effect. It was its application and it had the duty to prove the allegations it had made in its supporting affidavit. Judgement in question was delivered on 2-07-2024 yet this application was brought on 28-01-2025. No explanation for the six months’ delay has been offered. The applicant does not disclose when it became aware of the judgment and this court cannot venture into speculations. 12.In view of the above, it is my finding that the applicant has failed to convince me that the explanation for delay in filing the appeal is excusable. The application is an afterthought and, in my view, meant to frustrate the cause of justice. In the premises the prayer for leave to file appeal out of court is hereby denied. 13.As observed earlier in this ruling, the other prayers in the application must automatically collapse. The consequence is that this application has no merits 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 absence of the counsel for the parties and in presence of the respondent in person.3| Page