Wainaina & another v Ekapel [2025] KEHC 4743 (KLR)

Wainaina & another v Ekapel (Civil Miscellaneous E1119 of 2024) [2025] KEHC 4743 (KLR) (Civ) (27 March 2025) (Ruling)

Neutral citation: [2025] KEHC 4743 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Miscellaneous E1119 of 2024

TW Cherere, J

March 27, 2025

Between

Simon Wainaina

1st Applicant

Joseph Kihiko

2nd Applicant

and

Vincent Okwara Ekapel

Respondent

Ruling

Introduction 1. By a ruling dated 30th January, 2025, the Applicants’ notice of motion dated 27th September, 2024, seeking stay of execution pending appeal was allowed and it was ordered that:1. The Applicants deposit the entire decretal sum with the court within thirty (30) days of the ruling; and2. The memorandum of appeal be deemed as filed.

2. The Applicants failed to comply with the condition requiring them to deposit the decretal sum within thirty (30) days.Consequently, they have moved this court through the notice of motion dated 28th February, 2025, brought under Order 50 Rule 5 of the Civil Procedure Rules and Sections 1A, 1B, 3A, and 63(e) of the Civil Procedure Act, seeking:1. Enlargement of a further thirty (30) days within which to deposit the entire decretal sum with the court;2. In the alternative, the Applicants be allowed to deposit KES. 400,000/- and the balance within thirty (30) days;3. That costs be provided for.

3. The application is supported by the affidavit of the 2nd Applicant, Joseph Kihiko, sworn on 28th February, 2025. He avers that:1. He only managed to raise KES. 400,000; 2. He has applied for a loan, as evidenced by an undated and loan application form, and is optimistic of securing the same within 30 days.

4. The Respondent opposed the application by way of a replying affidavit sworn on 18th March, 2025. The grounds of opposition include:1. The application is intended to deny the Respondent the fruits of his judgment;2. The time to comply with the ruling lapsed on 3rd March, 2025, and no compliance has been made;3. The Applicants have not demonstrated that any loan was approved or is likely to be approved.

Analysis and Determination 6. I have carefully considered the application, including the affidavits and annexures on record. The issue for determination is whether the Applicants have established sufficient cause to justify the court’s exercise of discretion in extending the time for compliance with the ruling dated 30th January, 2025.

7. Order 50 Rule 5 of the Civil Procedure Rules provides:“Where a limited time has been fixed for doing any act or taking any proceeding under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time, on such terms (if any) as the justice of the case may require…”

8. The court’s discretion to enlarge time must be exercised judiciously and only upon good and sufficient cause being shown. In Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR), the Supreme Court set out the following principles:i.Extension of time is not a right of a party;ii.It is a discretionary remedy;iii.The applicant must explain the delay to the satisfaction of the court;iv.Whether the application has been brought without undue delay;v.Whether there will be prejudice to the other party;vi.Whether the application has been made in good faith.

9. In Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999] 2 EA 231, the Court of Appeal held:“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary... the applicant must satisfy the court that the delay was not inordinate and that there is a plausible explanation for it.”

10. In the present case, the only explanation offered for non-compliance is a purported loan application. The court, however, notes that the loan application form relied upon is undated, unacknowledged, and unsupported by any evidence of submission to the alleged financier. In the circumstances, the court finds the 2nd Applicant’s claim that he applied for a loan to facilitate the deposit of the decretal sum, as directed by the court on 30th January 2025, to be lacking in credibility.

11. Furthermore, the Applicants have failed to demonstrate that any reasonable efforts were made within the 30-day period to raise the decretal sum. The proposal to deposit KES 400,000/- has been made after the lapse of the deadline, and it is presented without lawful justification or sufficient cause.

12. Therefore, there being no satisfactory explanation placed before me by the Applicants, I associate myself with the statement of Makhandia, JA in Mohamed Shally Sese (Shah Sese) v Fulson Company Ltd & another [2016] KECA 253 (KLR) that:“A litigant must be vigilant in the conduct of his affairs ………... After all, extension of time is essentially equitable … and equity aids the vigilant and not the indolent.”

13. As held by the Supreme Court in County Executive of Kisumu v County Government of Kisumu & 8 others [2017] KESC 16 (KLR), the entire period of delay must be declared and adequately explained. In the present case, the Applicants have failed to provide a satisfactory explanation for their non-compliance with the court order issued on 30th January 2025. Consequently, they have not laid a proper basis upon which the court can exercise its discretion to extend time.

14. Consequently, the Notice of Motion dated 28th February, 2025 is hereby dismissed with costs to the Respondent.

Orders accordingly

DELIVERED AT NAIROBI THIS 27TH DAY OF MARCH 2025WAMAE.T. W. CHEREREJUDGEAppearancesCourt Assistant - Mr. WandereFor Applicants - Mr. Njengo for J.M.Njengo & Co. AdvocatesFor Respondent-Ms. Lumumba for Mitullah, Shako & Associates Advocates