Mwangi v Njoroge (Civil Miscellaneous Application E027 of 2025) [2025] KEHC 14049 (KLR) (9 October 2025) (Ruling)

Key Facts

Issues

• The court considered whether the Applicant is entitled to leave to appeal out of time under section 79G of the Civil Procedure Act, given a 28-day delay after the judgment was delivered on 27/5/2025. The Applicant's explanation for the delay was deemed plausible, and the delay was found not inordinate.
• The court evaluated the Applicant's request for a stay of execution pending the appeal, requiring payment of half the decretal sums to the Respondent and depositing the remainder into a joint interest-earning account as security. The stay was granted to balance the interests of both parties.
• The court determined that the Applicant's appeal on the quantum of general damages (awarded at Kshs300,000/=) raises triable issues, warranting an opportunity to ventilate the matter. The liability was undisputed, but the amount of damages was contested.

Holdings

• The Applicant is granted leave to file and serve a Memorandum of Appeal within ten days from the date of the ruling. The court found the delay in filing the appeal (28 days after the statutory period) was not inordinate and the explanation provided by the Applicant was plausible.
• The costs of the application shall abide in the appeal. The court ruled the Applicant's application has merit and allowed it accordingly.
• An order of stay of execution of the judgment and decree in Ukwala PMCC E096 of 2023 is granted upon the Applicant paying half the decretal sums to the Respondent and depositing the balance into a joint interest-earning account within 30 days. Failure to comply will result in the stay lapsing.

Remedies

• 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 and depositing the balance into a joint interest earning account within 30 days, failing which the stay lapses.
• The costs of the application shall abide in the appeal.
• The Applicant is granted leave to file and serve a Memorandum of Appeal within ten days from the date of this ruling.

Monetary Damages

Legal Principles

• The court considered Order 42 Rule 6(2) of the Civil Procedure Rules for a stay of execution, requiring the applicant to pay half the decretal sums to the respondent and deposit the remainder into a joint interest-earning account as security. This balanced the respondent's right to the judgment and the applicant's right to appeal, ensuring no undue prejudice.
• The court applied section 79G of the Civil Procedure Act, allowing appeals out of time if the applicant demonstrates good and sufficient cause. It emphasized that the delay in filing the appeal (28 days post-statutory period) was not inordinate and that the applicant's explanation was plausible, aligning with the interest of justice under Article 48 of the Constitution.

Precedent Name

• Nicholas Kiptoo Arap Salat Vs IEBC & 7 Others
• Mwangi S Kimenyi Vs Attorney General & Another

Cited Statute

• Civil Procedure Act
• Civil Procedure Rules

Judge Name

Passage Text

• The Applicant has averred that she was dissatisfied by the judgement of the trial court and that she took some time to consult on its ramifications and later decided to appeal against it and that by that time the statutory period of thirty days had elapsed.
• I find that the Applicant ought to be given an opportunity access justice as guaranteed by the constitution vide article 48 thereof. It is my view that the Respondent is not likely to come empty handed after determination of the intended appeal...
• The Applicant is granted leave to file and serve a Memorandum of Appeal within ten days from the date hereof... upon the Applicant paying half the decretal sums to the Respondent... while the balance shall be deposited into a joint interest earning account...