https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9941

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT VIHIGA** **CIVIL MISCELLANEOUS APPLICATION NO E054 OF 2025** **WESTERN KENYA SUGAR COMPANY LIMITED..APPLICANT/APPELLANT** **VERSUS** **JACKTON OMULA………………………………………………..…RESPONDENT** **Coram: Before: Hon. R. Nyakundi** **Omaya Advocate for Appellant** **Mr Arati for the Respondent** **Opiyo – Court Assistant** **RULING** **INTRODUCTION** 1. In its Notice of Motion application dated and filed on 29th April 2026, brought under Order 42 Rule 6, Order 51 Rule 1 of the Civil Procedure Rules, Section 3A of the Civil Procedure Act and all other enabling provisions of the law, the Applicant herein sought for the order that time be enlarged within which it should fully comply with the orders of the court issued on 17th March 2026. 2. Edinah K. Masanya, swore an affidavit on 29th April 2026 in support of the said application. She averred that she had the conduct of this matter hence competent to swear the affidavit herein. 3. She stated that on 17th March 2026, this court granted an order of stay of execution in the above matter on condition that the Applicant pays half the decretal sum plus costs to the Respondent’s Advocates within thirty (30) days and deposit the remaining half in a joint interest earning account within forty-five (45) days. 4. She asserted that although there was a short delay, the Applicant, through its insurers (Britam General Insurance Company (K) Ltd and Kenindia Assurance Co Ltd) paid the sum of Kshs 710,000/= To Arati & Co Advocates, each at Kshs 355,000/= on 21st and 24th April 2026 respectively. 5. She argued that despite the said payments and constant reminders, the Respondent’s Advocates had refused and/or failed to open the joint interest-earning as ordered by this court. 6. She asserted that on 23rd April 2026, the Respondent obtained a Warrant of Attachment in *Vihiga* *CMCC No E075 of 2023* for Kshs 1,247,275/= which was physically served upon the Applicant on 24th April 2026 directing Intercounty Auctioneers to attach and sell the Applicant’s movable property after seven (7) days’ proclamation. 7. She further contended that the Applicant had a strong appeal with high chances of success particularly on the excessive award of general damages and future medical expenses which were neither pleaded nor proved as special damages. She added that unless this court grants a stay of execution urgently, the Applicant would suffer substantial loss as its movable assets would be attached and auctioned thereby rendering the pending appeal nugatory. 8. She was categorical that this application had been made without undue delay upon becoming aware of the active execution. 9. As at the writing of the Ruling herein, none of the parties had filed their written submissions. The Ruling herein was, therefore, based on the Applicant’s affidavit evidence only. **LEGAL ANALYSIS AND DETERMINATION** 1. Notably, on 17th March 2026, the Appellant’s Notice of Motion Application dated 18th September 2025 and filed on even date and the Respondent’s Notice of Motion application dated and filed on 28th November 2025 were compromised in the following terms:- 2. *THAT pending the hearing and determination of the appeal, a stay of execution be and is hereby granted on condition that:-* 3. *That the Appellant shall pay the Respondent’s Advocate a sum equivalent to half the decretal sum plus costs within thirty (30) days from the date hereof.* 4. *That the Appellant shall deposit the remaining half of the decretal sum in a joint interest earning account in the names of the Advocates of the parties within fourty five (45) days from the date hereof.* 5. *THAT in default of the stipulated timelines, the stay of execution shall automatically lapse without any further order of the court.* 6. *THAT for the avoidance of doubt, default of (1) herein above execution to issue forthwith without any further order of the court.* 7. *THAT the Appellant be and is hereby granted leave to file an appeal out of time.* 8. *THAT the Appellant to file and serve a Memorandum of Appeal within seven (7) days from the date hereof.* 9. The said Consent was adopted as an order of court. The Applicant explained that although there was a short delay, it had paid the half sum of the decretal amount as order by the court and that before it could adhere to the rest of the terms of the consent a warrant of attachment was served upon it. 10. Going further, the Applicant had also noted that the Respondent had failed to open a joint earning account as ordered by the court. 11. Notably, no reason was advanced to explain the delay in adhering to the consent as agreed. This was inexcusable. 12. Be that as it may, every party has a right to access any court or tribunal to have its dispute heard and determined in accordance with Article 50(1) of the Constitution of Kenya, 2010. Even where a party delays in doing an act, there is always a provision that would give it reprieve to seek justice. 13. Notably, Order 50 Rule 6 of Civil Procedure Rules, 2010 empowers the court to enlarge the time to do a particular act. The said Order 50 Rule 6 of Civil Procedure Rules stipulates as follows:- *“Where a limited time has been fixed for doing any act or taking any proceedings under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed:* *Provided that the costs of any application to extend such time and of any order made thereon shall be borne by the parties making such application, unless the court orders otherwise”.* 1. Going further, while considering whether or not to grant an order for extension to do any act, apart from reasonable delay the court was also required to consider if the opposing side would suffer any prejudice if extension of time was granted. This court did not see any prejudice that the Respondent would suffer or was likely to suffer if the Applicant herein is granted extension of time to comply with the consent order of this court of 17th March 2026. If there was any prejudice, then he did not demonstrate the same. 2. Taking all the factors hereinabove into account, it was the considered view of this court that that it was *in the interests of justice* (emphasis court) that the Applicant be given an opportunity to comply with the said consent order as it would suffer prejudice if it was denied an opportunity to fully present its Appeal to be heard on merit. 3. Indeed, the power to grant orders *in the interest of justice and/or for the ends of justice* (emphasis court) is well captured in Section 3A of the Civil Procedure Act that states that: - *“Nothing in the Act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice (emphasis court) or to prevent abuse of the process of the court.”* **DISPOSITION** 1. For the foregoing reasons, the upshot of this decision was that the Applicant’s Notice of Motion application dated and filed on 29th April 2026 be and is hereby allowed in terms of prayer No 2 in the following terms:- 2. *THAT the compliance of the consent order dated 17th March 2026 which was adopted as an order of this court be and is hereby extended for the next forty-five (45) days from the date of the Ruling herein.* 3. *THAT, there be FURTHER stay of execution of the decree in Vihiga CMCC No E075 of 2023 for the sum of Kshs 1,247,275/= pending the Applicant’s compliance within the given forty-five (45) days period.* 4. *That in default of the stipulated timelines, the stay of execution shall automatically lapse without any further order of the court.* 5. Orders accordingly. **DATED AND DELIVERED AT VIHIGA VIA CTS, WHATSAPP AND EMAIL THIS 7TH DAY OF JULY 2026** **………………………………** **R. NYAKUNDI** **JUDGE**