https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10306

Veronica v Musyoka & 2 others (Civil Miscellaneous Application E386 of 2025) [2026] KEHC 10306 (KLR) (16 June 2026) (Ruling) Neutral citation: [2026] KEHC 10306 (KLR) Republic of Kenya In the High Court at Machakos Civil Miscellaneous Application E386 of 2025 EO Bitta, J June 16, 2026 Between Titus K Veronica Applicant and Judith Muthina Musyoka 1st Respondent Thiba Tim Limited 2nd Respondent Alex Wambua Muthenya 3rd Respondent Ruling 1.The Applicant has moved the Court in a composite application dated the 17th day of December 2025, wherein she seeks the following orders from the Court. 2.Leave be granted to the firm of Samuel Gitonga & Associates to come on record for the Applicant/Intended Appellant. 3.The Court be pleased to grant the Applicant leave to appeal out of time against the judgment that was delivered by Hon. Charity Oluoch on 26th September 2025. 4.The Court be pleased to grant a stay of execution of the Judgment of the Trial Court delivered on 26th September 2025 by Hon. Charity Oluoch and the Decree of the Trial Court issued on 26th November 2025 pending the hearing and determination of the intended appeal. 5.The costs of the application be in the cause. 6.The motion is based on grounds that the 1st Respondent had instituted suit against the Applicant, his deceased spouse, and the 2nd and 3rd Respondents seeking general and special damages in relation to a road traffic accident. 7.The Hon. Charity Oluoch entered judgment in favour of the 1st Respondent against the Applicant on 26th September 2025. 8.The Court then granted a 30-day stay of execution of the judgment, which was to lapse on 26th October 2025. 9.The Applicant stated that the insurer handled the matter through the firm of Humphrey & Co Advocates LLP. 10.That, owing to bureaucratic processes at the Applicant’s insurance firm, the appeal was not filed within the prescribed time of 30 days. 11.That the Applicant is aggrieved by the decision of the Subordinate Court and intends to appeal the decision of the Court, 12.The Applicant is apprehensive that the 1st Respondent may imminently execute the judgment and decree of the subordinate court before the application is heard and determined 13.The Applicant will suffer substantial loss, injustice, and will be highly prejudiced if stay of execution orders are not granted 14.The appeal will be rendered nugatory if the judgment and decree of the trial court are executed 15.The Applicant’s intended appeal raises serious arguable issues with high chances of success, as shown by the draft memorandum of appeal annexed to the Applicant’s supporting affidavit 16.The Applicant is ready to make an undertaking on security and abide by the conditions which the court may set, subject to granting stay pending the hearing and determination of the intended appeal 17.The 1st Respondent may not be able to refund the decretal amount in the likely event that the intended appeal is unsuccessful 18.The 1st Respondent will not suffer any prejudice, injustice, or loss if the orders sought are granted. 19.The 1st Respondent is opposed to the application and responded by way of a replying affidavit sworn on 27th January 2026. 20.It is the Respondent’s position that the Applicant has not offered a reasonable explanation for the delay in appealing the case and that the application should be dismissed. 21.The 1st Respondent stated that the cause of action arose out of a road traffic accident on or about 26th April 2019, where she sustained severe and extensive injuries. 22.The 1st Respondent averred that the Applicant did not testify, and the intended appeal has no chance of success. 23.The 1st Respondent stated that execution had not yet ensued and that the application, if granted, would greatly prejudice the Respondent by denying her the fruits of her judgment. 24.The 1st Respondent averred that she was a woman of means, willing and able to refund the decretal sum in the unlikely event that the Appeal is successful. 25.The 1st Respondent disclosed that the Applicant has filed an application in the Chief Magistrate’s Court seeking review of the judgment subject of the present application and annexed a copy of the application, which also seeks a stay of the execution of the Judgment. 26.The 1st Respondent submitted that if the Application is allowed, the Court should grant conditional leave and release half of the decretal sum plus specials and costs of kshs 403, 773/= to her and deposit half in a joint interest-earning account in the names of both counsel on record. 27.Both parties filed written submissions elucidating their respective positions on the application. 28.The Applicant cited the provisions of section 79G of the Civil Procedure Act, which provides that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time. 29.The Applicant cites the decision of the Court of Appeal in Thuita Mwangi v Kenya Airways (2003) eKLR, Mutiso v Mwangi (1997) KLR 630, Joyce Njeri Kariuki v Joreth Limited & 3 others (2012) eKLR, where the court held that it has discretion to extend time, but that the discretion must be exercised judicially. 30.That the reason for the delay, the length of the delay, the degree of prejudice to be suffered by the Respondent and possible chances of the intended appeal succeeding are all relevant factors in the exercise of such discretion. 31.The Applicant submits that the subordinate court made its decision on 26th September 2025, and the Applicant filed the application seeking leave on 17th December 2025. The period for filing the memorandum of appeal lapsed on 26th October 2025. 32.The Applicant states that the reason for the delay is that the claim was being handled by her insurer in exercise of its subrogation rights under the contract of insurance. 33.The Applicant submitted that the delay in lodging the memorandum of appeal was caused by bureaucracy in the decision-making process by the Applicant’s insurer. 34.The Applicant states that this should not be held against her as it was beyond her control. 35.The Applicant relied on the decision of the court in Philip Kiptoo Chemwolo and another v Augustine Kubede (1986) eKLR where Justice of Appeal Apaloo stated that ‘blunders will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case determined on its merits’ Apaloo JA, further observed that the broad equity approach is that unless there is fraud or intention to overreach there is no error or default that cannot be put right by payment of costs. 36.The court is often said to exist for the purpose of deciding the rights of parties and not for the purpose of imposing discipline. 37.The Applicant urged the court to find that explanation as plausible and reasonable in the circumstances. 38.The Applicant referred to the draft memorandum of appeal to support submissions that it raises arguable issues worthy of consideration on appeal. 39.The Applicant submitted that her insurer is ready and willing to deposit the entire decretal sum in a joint escrow account managed by both counsel for the Applicant and 1st Respondent, awaiting the hearing and determination of the intended appeal, and that the amount involved is substantial and the 1st Respondent may not be financially able to refund the said sum if the intended appeal succeeds. 40.The Applicant therefore submits that there is no indication that the application will prejudice the 1st Respondent and that an award of costs would be adequate compensation. 41.Citing the provisions of Order 42 Rule 6 of the Civil Procedure Rules and its exposition in the case of Butt vs Rent Restriction Tribunal (1982) KLR, the applicant submitted that the rule gives discretion upon the court to grant a stay where substantial loss may result unless the orders sought are granted, where the application has been made without unreasonable delay, and upon furnishing of security. 42.The Applicant submitted that if the Respondent executes the decree in the absence of issuance of the orders sought, the Applicant will suffer substantial loss, that the Respondent is a person of unknown means, and the Applicant may never be able to recover the money if it is paid in the event of a successful appeal. 43.The Applicant submitted that there was no indolence in the filing of the appeal. 44.Finally, the Applicant submitted that the insurance is ready and willing to deposit the entire decretal amount in a joint escrow account managed by both counsel for the Applicant and the Respondent. 45.The 1st Respondent submitted that the suit arose out of a road traffic accident on 26/4/2019, occasioning the 1st Respondent severe life-threatening injuries, and that judgment was delivered on 26/09/2025, approximately 4 months before the application was brought before the court. 46.That the Applicants were given a 30-day stay of execution upon the delivery of judgment, after which the Applicant went into slumber and refused to satisfy the decretal sum. 47.The 1st Respondent cited decisions of courts in Naivasha ELC Misc No. E020 OF 2025 Hannah Wangari Njuguna vs Joseph Ngware, Michael Njoroge & Fredrick Kinuthia t/a Jofremic Investment, where similar applications were dismissed, and in Makueni Misc Application No. E054 of 2025 Beadan Ngugi Kimangika vs David Ndolo Kinyatti alia David Ndolo, which was also dismissed 48.The 1st Respondent submitted that the application was an afterthought and that the Applicant is not keen on offering an appeal. 49.The 1st Respondent submitted that nothing prevented the Applicant from filing the memorandum of appeal, as she was represented by a competent advocate. 50.The 1st Respondent stated that the four months before the filing of the application amounted to an inordinate delay. 51.The 1st Respondent submitted that the road traffic accident happened 7 years ago and that the Respondent stands to suffer great loss if the application is allowed, as it will deny her enjoyment of her lawfully and legally obtained judgment. 52.The 1st Respondent also submitted that the Applicant has not demonstrated what substantial loss she will suffer if the application is disallowed. 53.The 1st Respondent submitted that the Applicant has not demonstrated what security she intends to put up in the matter. 54.The 1st Respondent submitted that the application is an abuse of the process as the applicant has also filed an application for review of the judgment, the subject of the intended appeal. 55.The 1st Respondent submitted that the intended appeal has no chances of success, seeing that the applicant was never called as a witness at the trial, despite being afforded several chances to testify as such; the 1st Respondent’s evidence was uncontroverted. 56.The 1st Respondent submitted without prejudice to the foregoing that if the court is minded to allow the application, the Applicant be granted conditional leave and release half of the decretal sum and costs of kshs 390, 216/= to the 1st Respondent and deposit half in a joint interest-earning account in the names of both counsel on record. 57.I have considered the application, the affidavits filed both in support of and in reply to the application, and the rival written submissions. 58.The principles governing the extension of time under section 79G of the Civil Procedure Act are well settled. 59.In Mutiso v Mwangi [1997] KLR 630, Thuita Mwangi v Kenya Airways Ltd [2003] eKLR and Joyce Njeri Kariuki v Joreth Ltd & 3 Others [2012] eKLR, the Court held that the court's discretion is to be exercised judicially, taking into account the length of delay, the reason for the delay, the chances of success of the intended appeal, and the degree of prejudice likely to be suffered by the Respondent. 60.The Supreme Court in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR enunciated as follows on extension of time.…72.A party may, however, encounter some delay, and the time within which he was to perform an act lapses. At Common Law, equity developed in the courts of Chancery Division to check the excess of common law. If one showed that he had a bona fide cause of action and time had lapsed, but was constrained to pursue within time that cause, because of some compelling reasons, the courts of the Chancery Division could intervene and indulge such a person if established that he was not at fault.73.It is on this equitable underpinning that courts in Common Law jurisdictions in the exercise of their discretion, now grant orders extending time. Presently, extension of time has now been given statutory backing with various legislations providing courts with the power to extend time.74.Extension of time being a creature of equity, one can only enjoy it if he acts equitably: he who seeks equity must do equity. Hence, one has to lay a basis that he was not at fault to let time lapse. Extension of time is not a right of a litigant against a court, but a discretionary power of the courts which litigants have to lay a basis where they seek the courts to grant it.…The Court of Appeal in Leo Sila Mutiso -vs- Rose Hellen Wangari Mwangi - Civil Application No. Nai. 255 of 1997 (unreported), the Court expressed itself thus:-“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters which this court takes into account in deciding whether to grant an extension of time are: first, the length of the delay; secondly, the reason for the delay; thirdly (possibly), the chances of the appeal succeeding if the application is granted; and, fourthly, the degree of prejudice to the respondent if the application is granted.”…85.This being the first case in which this court is called upon to consider the principles for extension of time, we derive the following as the underlying principles that a court should consider in the exercise of such discretion: Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court; A party who seeks an extension of time has the burden of laying a basis to the satisfaction of the court. Whether the court should exercise the discretion to extend time is a consideration to be made on a case-by-case basis; Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court; Whether there will be any prejudice suffered by the respondents if the extension is granted; Whether the application has been brought without undue delay; and whether, in certain cases, like election petitions, public interest should be a consideration for extending time. 61.Judgment in this case was delivered on 26th September 2025, and the statutory period for lodging an appeal lapsed on 26th October 2025. 62.The present application was filed on 17th December 2025. The delay is therefore approximately one and a half months beyond the prescribed period. 63.While the explanation advanced that the matter was being handled by the Applicant's insurer and that internal bureaucratic processes delayed instructions to appeal is not entirely satisfactory, I am not persuaded that the delay was so inordinate as to warrant shutting the Applicant out from the appellate process. 64.As stated by Apaloo JA in Philip Kiptoo Chemwolo & Another v Augustine Kubende [1986] eKLR, courts exist to determine the rights of parties on the merits and, absent fraud or an intention to overreach, mistakes may be excused on appropriate terms. 65.I have also considered the draft memorandum of appeal, without making definitive findings, I am satisfied that it raises arguable issues deserving consideration by the appellate court, and prejudice to the 1st Respondent can be ameliorated by an appropriate order on security. 66.As regards stay of execution, the applicable principles are set out in Order 42 Rule 6 of the Civil Procedure Rules and were restated in Butt v Rent Restriction Tribunal [1982] KLR 417. 67.The relief of stay of execution pending appeal is governed by Order 42 Rule 6 of the Civil Procedure Rules. 68.The relief is discretionary, although, as it has been said often, the discretion must be exercised judicially, that is to say, judiciously and upon defined principles of law; not capriciously or whimsically. 69.Therefore, a stay of execution should only be granted where sufficient cause has been shown by the Applicant. And in determining whether sufficient cause has been shown, the court should be guided by the three prerequisites provided under Order 42 Rule 6 of the Civil Procedure Rules, that: 70.The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded, and the appeal, if successful, is not rendered nugatory. 71.However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. 72.The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs. 73.The Applicant has expressed apprehension that the decretal sum may not be recoverable if paid out and the appeal ultimately succeeds. 74.The 1st Respondent has disputed that and has deponed that she is a person of means with the ability to refund the decretal amount. 75.It is not enough for the Applicant to allege that the Respondent may not be able to refund in case the decretal sum is paid; the Applicant must adduce proof of the Respondent’s inability. 76.The burden of proof does not shift to the Respondent to prove means on the bare allegation of the Applicant. 77.I note that in the instant case, the application was brought before execution had taken place, and the Applicant has expressed willingness to furnish security. 78.Substantial loss is a relative term and more often than not can be assessed by the totality of the consequences which an applicant is likely to suffer if a stay of execution is not granted, and that applicant is therefore forced to pay the decretal sum. 79.The other condition for granting stay orders is the security to be offered. 80.The law is that a party seeking a stay must offer such security for the due performance of the orders as may ultimately be binding on the appellant. The Applicant in this case has offered to deposit the entire decretal sum as security. 81.Importantly, I also note that the 1st Respondent made a proposal that, in the event a stay of execution is granted, one-half of the decretal sum be paid to the 1st Respondent and the other half to be deposited in an interest-earning account in the joint names of the counsel for the parties. 82.Accordingly, there is room for a stay of execution given these sentiments by the parties as long as the parties’ rights are held in almost symmetrical bounds. 83.Balancing the Applicant's right of appeal against the 1st Respondent's right to enjoy the fruits of a lawful judgment, I am satisfied that the interests of justice would be served by granting leave and stay on terms.Accordingly, I make the following orders:I.Leave is hereby granted to the firm of Samuel Gitonga & Associates Advocates to come on record for the Applicant.II.Leave is hereby granted to the Applicant to file and serve an appeal out of time. The Memorandum of Appeal shall be filed and served within fourteen (14) days from the date hereof.III.There shall be a stay of execution of the judgment delivered on 26th September 2025 and the resultant decree pending the hearing and determination of the intended appeal, On Condition That:a.The Applicant shall pay to the 1st Respondent one-half (½) of the decretal sum within forty-five (45) days from the date of this ruling; andb.The remaining one-half (½) of the decretal sum shall be deposited within the same period in an interest-earning joint account in the names of counsel for the Applicant and the 1st Respondent.c.In default of compliance with any of the foregoing conditions within the stipulated period, the stay granted herein shall automatically lapse without further order of the Court.IV.Costs of the application shall abide by the outcome of the appeal. DELIVERED, DATED, AND SIGNED AT MOMBASA THIS 16TH DAY OF JUNE 2026.EMMANUEL BITTAJUDGE OF THE HIGH COURTIn the presence of;C/A NechesahGicharu for the RespondentOlunga for the Applicant