Paul & another v Mutua & 2 others (Suing as the personal representatives of the Estate Of Fidelis Mutua Kimeu) (Miscellaneous Application E151 of 2025) [2025] KEHC 17879 (KLR) (27 November 2025) (Ruling)
Neutral citation:
[2025] KEHC 17879 (KLR)
Republic of Kenya
Miscellaneous Application E151 of 2025
EN Maina, J
November 27, 2025
Between
Pauline Katanu Paul
1st Applicant
Gabriel Muthiani
2nd Applicant
and
Stella Mukulu Mutua
1st Respondent
Mathew Kimeu Mutua
2nd Respondent
Rosalia Ndinda Matei
3rd Respondent
Suing as the personal representatives of the Estate Of Fidelis Mutua Kimeu
Ruling
1.This ruling relates to the Applicant’s Notice of Motion dated 8/05/2025 seeking the following orders;
2.The application is opposed by the Replying affidavit of the 1st Rosalia Ndinda Matei who stated that 30 days stay of execution was granted on 28/3/2025 and that they did not file any appeal or take any action towards filing one neither did they give the reason why they did not consult the insurer. Therefore, the delay was for 30 days and not 10 days as alleged by the Applicant. The court was urged to dismiss the application as it was brought in bad faith, is an abuse of the court process and is an attempt to deny and/or frustrate the ends of justice.
3.The application was to be canvassed by way of written submissions as per the order dated 24/06/2025 however there were no submissions on the CTS or in the physical file as at the time of writing the ruling.
Analysis and determination.
4.The issues for determination are;i.Whether the Applicant should be granted leave to file the Memorandum of Appeal out of time and whether the memorandum filed should be deemed as properly filed.ii.Whether stay of execution of the Judgment/Decree should be granted.
5.Leave to file an appeal out of time is governed by Section 79G of the Civil Procedure Act which states:
6.This court is also guided by the conditions set out by the Supreme Court in the case of Nicholas Kiptoo Korir Arap Salat vs IEBC and 7 Others, SC Application NO 16 of 2014[ 2014] eKLR where it was stated;
7.In this case, judgment was delivered on 28th March 2025 and the current application is dated on 8th May 2025, which is about 40 days from the date the judgment was delivered. Given that an appeal should be filed within thirty days there was a delay of only ten days which in my considered view is not inordinate. Leave to extend the period for filing the appeal is therefore granted.
8.On the prayer for stay of execution, such a stay can only issue where there is an appeal as the order is granted pending hearing and determination of the appeal. In this case there is no appeal as yet as it is trite, that an appeal filed out of time without leave is irregular- see the case of County Executive of Kisumu v County Government of Kisumu& 8 others, SC Civil Appeal NO 3 0F 2016; [2017] eKLR and hence the memo of appeal herein is for striking out as it was filed before leave was granted. Consequently, as there is no appeal, a stay of execution cannot issue and that limb of the application is accordingly dismissed.
9.This application therefore succeeds only to the extent that leave to file an appeal out of time is granted. The appeal shall be filed within thirty days of this ruling failing which the leave shall lapse.
10.The applicant shall bear the costs of the application.Orders accordingly.
RULING SIGNED, DATED AND DELIVERED VIRTUALLY ON THIS 27TH DAY OF NOVEMBER 2025.E. N. MAINAJUDGEIn Presence Of:Ms Odero for the Applicant.Ms Mwangangi for the Respondent.Geoffrey Court Assistant.