https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7051

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MAKUENI** **CIVIL MISC.APPLICATION NO. E012 OF 2026** JOYCE MUMO MUINDU & FAITH NDINDA MUINDU (Suing as the legal Representatives of the estate of the late James Muindu Ndunda- Deceased)……………………………………………………………….. APPLICANT VERSUS ROBERT MULI MATOLO ……………………………………………RESPONDENT **RULING** 1. Via a Notice of Motion dated 27-1-2026 brought pursuant to **Section 95,1 A,** **,1 B** and **3A** of the **Civil Procedure Act** and **Order 42 rule 6** and **Order 50 rule 1** of the **Civil Procedure Rules**, the applicant is seeking; stay of execution orders of the judgment delivered on 19-9-2025 in Makueni CMCC No. E082 of 2023 pending hearing and determination of the application herein; the Applicant be granted leave to appeal out of time and; stay of execution pending hearing and determination of the appeal. 2. The application is supported by the grounds stated on the face of it and the content contained in the affidavit in support sworn by Faith Ndunda who averred that pursuant to a Traffic Road Accident which occurred on 1-5-21, their father the deceased herein met his death. That as a result, they filed Makueni CMCC No. E082 of 2023 but the same was dismissed vide the judgment delivered on 19.9.2025. 3. She further deposed that the communication of the said judgment by their counsel on record did not reach them via the E-mail given as it was misplaced. That they came to discover of the delivery of the said judgment when they visited their advocate’s office. She averred that the delay in filing the intended appeal was not deliberate and that the intended appeal has high chances of success. A draft memorandum of appeal was attached as proof that they have an arguable appeal. 4. It was deposed that they were ready and willing to deposit security for costs and that there will be no prejudice occasioned on the respondent in the event the application is allowed. 5. Despite service of the application, the respondent did not file any response. During the hearing, counsel for the applicant urged the court to allow the application as prayed since it was not opposed. 6. I have considered the application herein together with the affidavit in support. 7. **Section 79G** of the **Civil Procedure Act** provides that: **“Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order:** **Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.”** 1. My understanding of the above *proviso* is that an intended appeal should be in place or be filed together with the Application seeking leave for extension of time to file it. My view is buttressed by the case of **Mugo & Others –vs- Wanjiru & Anor [1970] EA 482** where the court stated as follows: - **“Clearly, as a general rule the filing and service of the notice of appeal ought to be regularized before or at least at the same time as an application is made to extend the time for filing the record and the fact that this has not been done might be a reason for refusing the application or only allowing one on terms as to costs. But it does not mean that such an application must be refused.”** 1. In the instant case, the Applicant has filed this miscellaneous Application together with a draft Memorandum of Appeal which, in my view, qualifies as an intended Appeal for purposes of guiding the court on whether to grant the orders sought. 2. It is now well settled that extension of time or its denial is an exercise of discretion by the court. In **Leo Sila Mutiso** –**vs- Rose Hellen Wangari Mwangi*,* (Civil Application No. Nai. 255 of 1997) (unreported)*;*** the Court of Appeal stated as follows; **“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters which this court takes into account in deciding whether to grant an extension of time are: first, the length of the delay: secondly, the reason for the delay: thirdly (possibly), the chances of the appeal succeeding if the application is granted: and, fourthly, the degree of prejudice to the respondent if the application is granted”.** 1. The applicants have attempted to justify the reason for the delay of about four months. They blame the cause of delay as communication breakdown between them and their advocates. This ground was not challenged. On a benefit of doubt, am persuaded to believe that the applicant’s failure to file the appeal within reasonable time was not deliberate. In the circumstances, the prayer for leave to appeal out of time is allowed. 2. As regards stay of execution, the order sought to be appealed against is not a positive order. A court cannot stay an order for dismissal of a suit since it is a negative order which is not executable. For that reason, that prayer fails. 3. Accordingly, the application for leave to appeal out of time is allowed and the applicants allowed to file a substantive Memorandum of Appeal within 14 days commencing today in default the order for leave shall cease to operate. 4. For purposes of security of costs, the applicants shall deposit in court a sum of Kshs. 300,000/=. The same shall be deposited within 14 days after lodging the said Memorandum of Appeal. Costs of this application are awarded to the respondents. Consequently, this file is marked as closed. Dated, signed and delivered virtually this **19th** day of **May 2026** …………………………. J.N. ONYIEGO **JUDGE**