https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7807

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MACHAKOS** **HIGH COURT CIVIL APPEAL NO. 261 OF 2023** **THE STANDARD GROUP LIMITED……….…………….. APPELLANT** **VERSUS** **EVANS KEAGO HEZEKIAH………………..……………. RESPONDENT** CONSOLIDATED WITH **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MACHAKOS** **HIGH COURT CIVIL APPEAL NO. 281 OF 2023** **THE STANDARD GROUP LIMITED……. APPELLANT /APPICANT** **AND** **EVANS KEAGO HEZEKIAH…………………..…………. RESPONDENT** **RULING** 1. Before this Court for determination are two applications. The first is a Notice of Motion Application dated 30th July, 2025, filed by the Appellant/Applicant, seeking the following orders: - 1. ***Spent*** 2. ***The Honourable Court be pleased to grant the Applicant leave to file and serve the Notice of Appeal out of time against the judgment and decree of the High Court at Machakos (R. Rutto, J.) delivered on 19th June, 2025, in HCCA No. 261 and 281 of 2023 (Consolidated).*** 3. ***The draft Notice of Appeal annexed hereto be deemed as duly filed upon payment of the requisite court fees.*** 4. ***Spent*** 5. ***Pending the hearing and determination of the intended appeal, there be a stay of execution of the said judgment and decree.*** 6. ***This Honourable court be pleased to issue any other order it may deem fit to meet the end of justice.*** 7. ***The costs of this application be provided for.*** 2. The application is premised on the grounds set out on its face and the supporting affidavit sworn by Jesse Waigwa, the Legal Officer of the Applicant Company. The crux of the application is that judgment in Machakos HCCA No. 261 and 281 of 2023 (as consolidated) was delivered on 19th June, 2025, dismissing both appeals and thereafter affirming the award of the lower court of Kshs. 5, 000, 000/= in general and aggravated damages made by the subordinate court. 3. The dependent avers that, at the time of the delivery, the Learned Judge indicated that the full judgment would be uploaded on the Judiciary’s Case Tracking System (CTS). Following the Applicant’s advocates diligently monitored the CTS platform, however the judgment remained inaccessible. They subsequently wrote a letter dated 15th July, 2025, to the Deputy Registrar of Machakos High Court requesting certified copies of the judgment, decree and proceedings to enable them to determine whether to appeal. 4. It is further deposed that it only on 21st July, 2025, that the Applicant’s advocates came across the judgment published on Kenya law Reports (eKLR) platform, which reflected an uploaded date of 1st Julym 2025. The deponent states that since eKLR does not notify parties of such uploads, they were unaware of its availability until then. Upon discovering the judgment, the advocates promptly informed the Applicant. Around the same time, the Applicant also received the judgment and decree from the Respondent’s advocates. 5. Upon becoming fully aware of the judgment, the Applicant resolved to appeal. However, the decision required internal approvals, thereby necessitating additional time to complete the requisite authorizations. The deponent further states that on 30th July, 2025, upon being served with warrants of attachment issued by Millan Auctioneers on the instructions of the Respondent’s advocates, the Applicant formally instructed its advocates to file the present application seeking leave to file the Notice of Appeal out of time and to obtain a stay of execution. 6. The Applicant maintains that the delay in lodging the Notice of Appeal was neither deliberate nor inordinate but was occasioned by the manner and timing of the publication of the judgment. 7. In opposition, the Respondent filed a Replying Affidavit sworn on 26th November, 2025. He contends that the application is incompetent, misconceived and an abuse of the court process arguing that this Court lacks jurisdiction to grant the orders sought, particularly the prayer seeking extension of time to file a Notice of Appeal. 8. The Respondent avers that both appeals were dismissed by the Court on 19th June, 2025, thereby upholding the judgment of the subordinate court at Mavoko. He further contends that the Applicant had the opportunity to file a Notice of Appeal within the statutory period of fourteen (14) days from the date of judgment but failed to do so without sufficient explanation. According to him the timelines lapsed on 3rd July, 2025, and no plausible reason has been advanced to justify the failure. 9. The Respondent further deposes that the judgment date was taken in the presence of both counsel and that the Applicant’s advocate was present virtually at the delivered of judgment on 19th June, 2025. He adds that immediately after delivery of the judgment, counsel for the Applicant orally applied for stay of execution which was declined on the basis that the judgment constituted a negative order. This, he argues, demonstrates that the Applicant was fully aware of the judgment and cannot claim otherwise. 10. Additionally, the Respondent avers that the judgment was uploaded onto the Case Tracking System on 20th June, 2025, and was therefore accessible to the parties. He terms the Applicant’s claim that the judgment was inaccessible until 21st July, 2025, as misleading and dishonest. He further contends that, even if there had been delay in uploading the judgment, nothing prevented the Applicant from filing a Notice of Appeal within time to signify its intention to appeal. 11. The Respondent maintains that litigation must come to an end and asserts that the present application is intended to delay him from enjoying the fruits of the judgment. He further accuses the Applicant of frustrating settlement of the decretal sum and of allegedly concealing its assets from attachment. 12. The Respondent also urges that there is no competent appeal before the Court and that the Applicant has not demonstrated any concrete steps taken towards instituting one. He contends that the prayers for stay are untenable as the judgment delivered by this Court constituted a negative order incapable of execution. Further, he asserts that the issue of stay of execution is *res judicata*, having already been sought orally and determined at the time of delivery of judgment. 13. Finally, the Respondent contends that the Applicant has approached the wrong forum and that the application has been overtaken by events, rendering it frivolous, vexatious and an abuse of the court process. He therefore urges the Court to dismiss the application with costs. 14. The second application filed by the Applicant is the one dated 2nd October, 2025, and seeks the following orders; 1. ***Spent.*** 2. ***Spent.*** 3. ***There be an order of stay of execution of the judgment and decree in Mavoko MCCC No. 535 of 2022 pending the hearing and determination of the intended appeal.*** 4. ***Spent.*** 5. ***Spent.*** 15. The application is premised on the grounds set out on its face and the supporting affidavit sworn by Jesse Waigwa, the Legal Officer of the Applicant Company. The gist of the application is that, following the judgment delivered on 19th June, 2025, with which the Applicant was dissatisfied, it lodged an application dated 30th July, 2025, seeking *inter alia* leave to file a Memorandum of Appeal out of time and stay of execution. 16. It is deposed that on 5th August, 2025, the court granted interim stay of execution. However, the said order related to the High Court judgment and decree, which dismissed the appeals and therefore constituted a negative order incapable of execution. Consequently, the operative and enforceable decree remains that of the subordinate court in Mavoko MCCC No. 535 of 2022. The Applicants contends that this inadvertent procedural gap has left it exposed to execution. 17. The deponent further avers that the Respondent has since initiated a garnishee proceeding by way of an application dated 12th September, 2025, in Mavoko MCCC No. 535 of 2022 and obtained an ex parted Garnishee Order Nisi against the Applicant’s bank accounts. While conceding that the Respondent was technically entitled to proceed in the absence of an express stay of the subordinate court’s decree, the Applicant asserts that, unless the court intervenes the garnishee proceedings will culminate in attachment thereby rendering the intended appeal nugatory. 18. It is stated that the failure to specifically seek a stay of execution in respect of the subordinate court decree was inadvertent and purely procedural. The Applicant maintains that it has at all times acted in good faith and with diligence including promptly seeking leave to appeal out of time and a stay of execution. The present application (dated 2nd October, 2025) is therefore intended to regularize the position by expressly seeking stay of execution of the decree in Mavoko MCCC No. 535 of 2022 so as to align the orders of this court with the reality of ongoing execution proceedings and the intended appeal. 19. The Applicant filed his submissions dated 16th January, 2026, while the Respondent’s counsel indicated that they would rely solely on the replying affidavit. ***Applicant’s Submissions*** 1. The Applicant’s submissions begin with a brief introduction and factual background. It identifies five issues for determination, that is; whether this Court has jurisdiction to grant leave to appeal to the Court of Appeal; whether a sufficient basis has been laid for extension of time to file a Notice of Appeal; whether the intended appeal is arguable and raises serious points of law deserving appellate interrogation; whether the Court ought to grant consequential stay of execution and stay of proceedings; and whether the balance of justice and convenience tilts in favour of the Applicant. 2. On jurisdiction, the Applicant submits that although the High Court becomes *functus officio* in respect of the merits of a concluded appeal, it nonetheless retains residual and incidental jurisdiction to issue orders necessary to facilitate appellate justice. Reliance was placed on the decision in ***Gitau v Kenya Methodist University (Petition No. 5 of 2020) [2021] KEHC 322 (KLR),*** where the Court affirmed that the High Court retains jurisdiction to grant leave to appeal and stay proceedings even after delivery of judgment. The Applicant argues that granting such leave does not amount to re-litigation of merits but is an exercise of constitutional and inherent jurisdiction aimed at safeguarding access to justice and the right to a fair hearing under Articles 48 and 50 of the Constitution. 3. On extension of time, the Applicant relies on the principles enunciated in ***Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR.*** It is submitted that the delay had been satisfactorily explained by the failure to upload the judgment on CTS under the lead file as directed by the Court, coupled with the absence of notification mechanisms on eKLR. The Applicant contends that it acted promptly upon discovering the judgment and that any further delay was attributed to internal approval processes, which were reasonable in the circumstances. Counsel emphasized that the delay was neither inordinate nor deliberate and urges the Court to favour substantive justice over procedural technicalities. 4. On the arguability of the intended appeal, the Applicant submits that the intended appeal raises serious and arguable points of law relating to defamation jurisprudence. In particular, it questions whether a defamation claim can succeed in the absence of independent or third-party evidence of reputational injury; whether the High Court departed from the binding precedent on standard of proof in defamation claims; and whether aggravated or exemplary damages may be sustained absent proof of malice. Reliance was placed on ***Selina Patani v Dhiranji Patani [2019] eKLR*** for the proposition that reputation is proved through evidence of how one is regarded by others and not through self-assessment. The Applicant contends that these issues are neither frivolous but raises pure questions of law deserving consideration by the Court of Appeal. 5. On stay of execution and stay of proceedings, the Applicant acknowledged that the earlier application for stay related to a negative order of the High Court. However, it submits that the present application is anchored on the reality of ongoing execution proceedings in the subordinate court, particularly the garnishee process. Counsel urges that without the grant of stay, the intended appeal would be rendered nugatory. Reliance is placed on ***Butt v Rent Restriction Tribunal [1982] KLR 417,*** where it was held that the court’s discretion to grant stay should be exercised in a manner that preserves the substratum of the appeal. The Applicant further expressed willingness to comply with any reasonable conditions including the provision of security. 6. The Applicant submits that the balance of convenience and justice tilts in its favour. It argues that the Respondent stands to suffer no prejudice incapable of compensation by costs if leave and stay were granted. In contrast, the Applicant risks irreversible execution, loss of its right to appeal, and the perpetuation of a potentially erroneous judgment shielded from appellate review. Reliance was placed on ***Muringa Company Ltd v Archdiocese of Nairobi Registered Trustees [2020] eKLR****,* where the Court emphasized that the interests of justice generally favour preserving a litigant’s right to pursue an appeal. Accordingly, the Applicant urges the court to allow both applications as prayed. ***Analysis and Determination*** 1. I have carefully considered the two applications, the affidavits on record and the Applicant’s submissions. In my view, the following issues arise for determination; 1. **Whether this Court has jurisdiction to grant leave to file a Notice of Appeal out of time and to grant consequential orders of stay pending the intended appeal.** 2. **Whether the Applicant has established a sufficient basis for extension of time to lodge a Notice of Appeal out of time.** 3. **Whether the Applicant has satisfied the conditions for grant of stay of execution pending the intended appeal.** **Whether this Court has jurisdiction to grant leave to file a Notice of Appeal out of time and grant consequential orders of stay pending the intended appeal.** 1. The Respondent has challenged the jurisdiction of this Court to entertain the applications on the ground that the Court is *functus officio,* having already rendered judgment in the consolidated appeals. The doctrine of *functus officio* is now well settled in our jurisprudence. Once a court has performed its adjudicative function and rendered a final determination on the merits, it generally lacks jurisdiction to reopen the matter except as provided by law. 2. However, a court retains residual jurisdiction to address consequential, incidental and procedural matters arising from its judgment provided that such intervention does not amount to a reconsideration of the merits of the dispute. In this regard, I am not persuaded by the Respondent’s contention that this Court lacks jurisdiction to entertain the present applications. 3. In particular, the prayer for extension of time relates to facilitating access to the appellate process and doesn’t entail a reopening of the dispute. Similarly, under Order 42, rule 6 of the Civil Procedure Rules, this Court retains jurisdiction to grant stay of execution pending appeal even after delivery of judgment where circumstances warrant. Accordingly, I find and hold that this Court is properly seized of jurisdiction to determine both the application for extension of time and the application for stay of execution. **Whether the Applicant has made a sufficient case for extension of time to lodge a Notice of Appeal out of time.** 1. The principles governing extension of time are well settled. In ***Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR****,* the Supreme Court emphasized that extension of time is an equitable remedy, granted at the discretion of the court upon consideration of factors such as, the length of delay, the reason for the delay, the degree of prejudice to the respondent, whether the application has been brought without undue delay and whether public interest considerations arise. 2. In the present case, the judgment sought to be appealed against was delivered on 19th June, 2025. Under Rule 61 of the Court of Appeal Rules, the Notice of Appeal ought to have been lodged within fourteen (14) days, that is, by 3rd July, 2025. The present application was filed on 30th July, 2025, approximately twenty-seven (27) days after lapse of the prescribed timeline. 3. The Applicant attributes the delay to difficulties in accessing the judgment through the Case Tracking System (CTS) couples with the absence of notification upon upload to the eKLR platform. it is further contended that, upon eventually accessing the judgment on 21st July, 2025, the Applicant acted promptly but required, internal approvals before issuing instructions to appeal. 4. The Respondent, on the other hand maintains that the Applicant was fully aware of the delivery of the judgment and indeed participated in the proceedings at the stage, including making an oral application for stay. This, it argues undermines the explanation advanced for the delay. The Respondent further exhibited evidence allegedly showing that the judgment was uploaded on CTS on 20th June, 2025. 5. It is not in dispute that counsel for the Applicant was aware that judgment was delivered on 19th June, 2025, and even sought orders immediately thereafter. This clearly demonstrates knowledge of the existence and outcome of the judgment. However, I also take judicial notice of the practical challenges occasionally attendant to the Case Tracking System. 6. Nevertheless, even assuming that the judgment was not readily accessible on CTS, I agree with the Respondent that nothing prevented the Applicant from lodging a Notice of Appeal within the prescribed timelines. A Notice of Appeal merely signifies intention to appeal and does not require typed proceedings or a certified copy of the judgment. 7. That said, the delay herein, though not satisfactorily explained in its entirety, is not inordinate. The application was filed less than one month after lapse of the statutory period. More importantly, the Court must balance procedural compliance against the constitutional imperative to administer substantive justice under Article 159(2)(d) of the Constitution. The right of appeal though statutory, is an important component of access to justice. Courts have consistently leaned towards sustaining rather than terminating a litigant’s right of appeal unless the delay is prolonged, inexcusable or demonstrably prejudicial. 8. I am also not persuaded that the Respondent will suffer prejudice incapable of compensation by an award of costs if extension of time is granted. On the other hand, a refusal to extend time would completely shut out the Applicant from pursuing the appellate process. In the circumstances and in exercise of discretion I am inclined to allow the prayer for extension of time. **Whether the Applicant has satisfied the conditions for grant of stay of execution pending the intended appeal.** 1. The principles governing stay of execution are set out under Order 42, rule 6(2) of the Civil Procedure Rules which provides that no order for stay shall issue unless the Court is satisfied that: - **a.** **The application has been made without unreasonable delay;** **b. The Applicant stands to suffer substantial loss unless the order is made; and** **c. The Applicant is willing to furnish security for the due performance of the decree.** 1. The cornerstone for grant of stay is proof of substantial loss. In ***Kenya Shell Limited v Benjamin Karuga Kibiru & Another [1986] eKLR,*** the Court of Appeal held that substantial loss is the cornerstone of the jurisdiction for granting stay and without evidence of substantial loss it would be difficult to justify depriving a successful litigant of the fruits of judgment. The court stated that; *“****Substantial loss in its various forms, is the corner stone of both jurisdictions for granting a stay. That is what has to be prevented. Therefore, without this evidence it is difficult to see why the respondents should be kept out of their money.”*** 1. The Applicant has argued that unless stay is granted, the ongoing garnishee proceedings in Mavoko MCCC No. 535 of 2022 will culminate in attachment of its bank accounts thereby rendering the intended appeal nugatory. The Applicant has also contended that the omission in the earlier application, which sought stay of the High Court judgment rather than the subordinate court decree, was inadvertent. 2. In the present matter, the High Court judgment merely dismissed the consolidated appeals and therefore constituted a negative order incapable of execution. However, the operative and enforceable decree remains that of the subordinate court in Mavoko MCCC No. 535 of 2022. 3. The Applicant has now properly invoked the Court’s jurisdiction by seeking stay of execution of the decree in Mavoko MCCC No. 535 of 2022 which decree remains enforceable following dismissal of the appeals. The evidence on record demonstrates that execution is actively underway through garnishee proceedings. 4. In my view, the Applicant has demonstrated that execution proceedings are actively ongoing and that unless stay is granted, the intended appeal may be rendered nugatory. The decretal amount involved is substantial and attachment of the Applicant’s accounts. At the same time, I am mindful that the Respondent, is a successful litigant, who is entitled to enjoy the fruits of his judgment without unnecessary obstruction. The Court must therefore strike a balance between preserving the substratum of the intended appeal and safeguarding the Respondent’s legitimate interests. 1. In ***Butt v Rent Restriction Tribunal [1982] KLR 417****,* the Court of Appeal held that the discretion to grant stay should be exercised in a manner as to ensure that an appeal is not rendered nugatory while at the same time ensuring that a successful litigant is not unfairly deprived of the fruits of judgment. 2. The Applicant has expressed willingness to furnish security which is requirement under Order 42, rule 6(2)(b) of the Civil Procedure Rules. In the circumstances of this case, I am satisfied that an order of conditional stay would sufficiently balance the competing interests of both parties. 3. Consequently, I make the following orders: - 1. **The Applicant is granted leave to file and serve a Notice of Appeal out of time against the judgment delivered on 19th June, 2025.** 2. **The Notice of Appeal shall be filed and served within seven (7) days from the date hereof, failing which the leave granted herein shall automatically lapse.** 3. **There shall be a stay of execution of the decree in Mavoko MCCC No. 535 of 2022 pending the hearing and determination of the intended appeal on condition that the Applicant deposits the sum of Kshs. 3,000,000/= in a joint interest earning account in the names of counsel for the parties within forty five (45) days from the date hereof.** 4. **In default of compliance with order (c) above, the stay granted herein shall automatically lapse.** 5. **The costs of the applications shall abide the outcome of the intended appeal.** 4. Orders accordingly. ***Delivered, Dated and Signed virtually this 4th day of June, 2026*** **RHODA RUTTO** **JUDGE** **In the presence of;** **Court Assistant: Wabwire** **Mr. Ayora for the Respondent** **Mr. Chebou for the Appellant** **Ms. Achieng for Standard Group**