Automated Summary
Key Facts
The case involves Margaret Nyambura Mwangi (Applicant) seeking leave to appeal out of time and a stay of execution in Civil Misc. No. E026 of 2025. The Applicant's appeal against Regina Wanjiru Njoroge (Respondent) was filed 28 days after the 30-day statutory period following a 27/5/2025 judgment in the Respondent's favor (100% liability, Kshs300,000 general damages, Kshs6,000 special damages). The court found the delay excusable, noted triable issues in the appeal (specifically regarding general damages), and granted the stay of execution contingent on the Applicant paying half the decretal sums to the Respondent and depositing the remaining half into a joint interest-earning account within 30 days.
Issues
- The court evaluated the Applicant's request to stay the execution of the trial court's judgment (100% liability, Kshs300,000 general damages, and Kshs6,000 special damages) pending appeal. The Applicant demonstrated the delay was not inordinate, potential substantial loss if the stay was denied, and willingness to pay half the decretal sums to the Respondent while depositing the remainder as security in a joint interest account. The Respondent argued this would prejudice her rights to the judgment's fruits.
- The court considered whether the Applicant should be granted leave to file an appeal out of time under section 79G of the Civil Procedure Act. The Applicant argued the 28-day delay was excusable as she consulted on her next course of action, and the appeal raises triable issues regarding the award of general damages. The Respondent claimed the application was frivolous and that the Applicant failed to meet the prerequisites for an extension.
Holdings
- An order of stay of execution of the judgment and decree in Ukwala PMCC No. E096 of 2023 is granted upon the Applicant paying half the decretal sums to the Respondent through her counsel while the balance is deposited into a joint interest earning account in the names of both Advocates for the parties within thirty (30) days from the date hereof, failing which the stay shall lapse.
- The Applicant is granted leave to file and serve a Memorandum of Appeal within ten days from the date hereof.
- The costs of the application shall abide in the appeal.
Remedies
- The Applicant is granted leave to file and serve a Memorandum of Appeal within ten days from the date hereof.
- An order of stay of execution of the judgment and decree in Ukwala PMCC No. E096 of 2023 is granted upon the Applicant paying half the decretal sums to the Respondent through counsel and depositing the balance into a joint interest-earning account within 30 days, failing which the stay shall lapse.
- The costs of the application shall abide in the appeal.
Monetary Damages
306000.00
Legal Principles
The court applied equitable principles to assess the Applicant's request for leave to appeal out of time under section 79G of the Civil Procedure Act. Key considerations included the plausibility of the Applicant's explanation for delay (28 days after the statutory 30-day period), the absence of prejudice to the Respondent, and the Applicant's readiness to offer security via partial payment and a joint interest-bearing account. The ruling emphasized the constitutional right to access justice (Article 48) and referenced principles from the case Nicholas Kiptoo Arap Salat Vs IEBC [2014] EkIr, including the discretionary nature of extensions, the need for a reasonable explanation for delay, and the requirement to meet conditions under Order 42 Rule 6(2).
Precedent Name
- Nicholas Kiptoo Arap Salat Vs IEBC & 7 Others
- Mwangi S Kimenyi Vs Attorney General & Another
Cited Statute
- Civil Procedure Act
- Constitution of Kenya
Judge Name
D. Kemei
Passage Text
- An order of stay of execution of the judgement and decree in Ukwala PMCC No. E096 of 2023 is hereby granted upon the Applicant paying half the decretal sums to the Respondent through her counsel while the balance shall be deposited into a joint interest earning account in the names of both Advocates for the parties within thirty (30) days from the date hereof failing which the stay shall lapse.
- The Applicant is granted leave to file and serve a Memorandum of Appeal within ten days from the date hereof.
- The Applicant's explanation that she was still consulting on her next course of action whether to satisfy the judgement or appeal against is plausible... The delay is not inordinate and thus the same is excusable.