https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6990

Moiz Motors Ltd v Oluoch & 2 others (Civil Appeal E095 of 2025) [2026] KEHC 6990 (KLR) (22 May 2026) (Judgment) Neutral citation: [2026] KEHC 6990 (KLR) Republic of Kenya In the High Court at Siaya Civil Appeal E095 of 2025 DK Kemei, J May 22, 2026 Between Moiz Motors Limited Appellant and Hellen Auma Oluoch 1st Respondent Fredrick Omondi Oduor (Suing as Administrators of the Estate of Boniface Okoth Okello (Deceased) 2nd Respondent Leah Atieno Ogolla 3rd Respondent (Being an Appeal against the Judgement of Hon. Limo B. Benjamin delivered on the 12th day of March 2025 in Siaya Case No. MCCC No. E034 OF 2022) Judgment 1.The Appellant filed the present application dated 11/11/2025 seeking the following orders; -i.Spent.ii.That this Honourable Court be pleased to enlarge the time within which the Appellant may appeal against the Judgement entered on the 12th day of March 2025.iii.That this Honourable Court do grant leave to the Appellant to file and prosecute the intended appeal out of time.iv.That this Honourable Court be pleased to order for stay of execution of the Judgment entered on the 12th day of March 2025 against the Appellant pending the hearing and determination of the appeal.v.That pending the hearing and determination of this application for stay, an interim order of stay of execution of the Orders made on the 12th day of March 2025 against the Appellant be and is hereby granted.vi.That costs of this application be provided for. 2.The application is supported by the grounds set out thereunder and by the supporting affidavit of the Appellant’s sales manager sworn on even date. The Appellant’s gravamen is inter alia; that the Appellant/Applicant is aggrieved by the entire Judgement of the Chief Magistrates Court at Siaya by Hon. Limo B. Benjamin dated 12th March 2025 in MCCC E34 OF 2022, and appeals against it; that this Application is urgent and needs to be heard immediately as the 1st and 2nd Respondents might execute the Judgement herein; that the 1st and 2nd Respondents conduct is indicative of their intentions to execute the judgment herein; that the Appellant has reasonable cause to believe that the auctioneers intend on selling the subject motor vehicle in the course of next week; that the auctioneers have issued the Appellant with Warrants of Attachment of movable property, Warrants of Sale of property in execution for decree for money, and Proclamation of Attachment of Movable Property; that the Appellant has an arguable Appeal with good prospects of success; that the Appellant’s failure to comply with the trial court’s earlier directions was not deliberate or intended to obstruct the course of justice, but arose from circumstances beyond its control as it was notified of the same by Soni & Associates Advocates LLP; that the failure arose from the inadvertence of the Appellant’s previous counsel and the mistakes of counsel should not be visited upon the litigant, particularly where no deliberate disregard of court orders is demonstrated; that the Appellant is ready and willing to deposit half the decretal sum as security; that the Judgement subject matter herein being substantial, should execution proceed, the Appellant stands to suffer irreparable loss and prejudice; that the Appellant sold Motor Vehicle Registration Number KDE 776H to one LEAH ATIENO OGOLLA, the 3rd Respondent herein, vide a Sale Agreement made on the 2nd day of November 2021 for the purchase price of Kshs. 1,150,000/-; that the 3rd Respondent had paid a deposit of Kshs. 360,000/- upon execution of the Sale Agreement dated 2nd November 2021 and took possession of Motor Vehicle Registration Number KDE 776H; that under the afore-mentioned agreement, LEAH ATIENO OGOLLA was to pay the balance of Kshs. 790,000/- in monthly installments of Kshs. 43,889/- for eighteen (18) months; that as at the time of the accident in question, the 3rd Respondent, LEAH ATIENO OGOLLA, was still paying the monthly installments and was in actual possession of Motor Vehicle Registration Number KDE 776H; that as per Clause 8 Sale Agreement dated 2nd November 2021, in event of any liability or claim, arising during the subsistence of that agreement in respect of the motor vehicle in question, the hirer shall be 100% accountable and did guarantee the owners that condition shall be faithfully complied with in the event of any eventuality. Additionally, that covenant was to be pleaded as defense to any claim the owners may be required to answer; that the Appellant held the original log book as security to ensure full payment of the purchase price, therefore, the only reason the Appellant was still the registered owner of the subject motor vehicle was to ensure the full payment of the purchase price; that the Appellant has filed this Application without delay pending the filing of the Record of Appeal; that the 1st and 2nd Respondents will not suffer any prejudice if stay of execution is granted; that it is fair and just that the Appellant be granted stay pending the hearing and determination of the Appeal. 3.The 1st Respondent herein swore a replying affidavit dated 14/11/2025 wherein she averred inter alia that the Appellant has already cleared the decretal sums as per the judgement dated 12/3/2025 hence the matter is fully settled and execution spent and hence the latest application is in bad faith and intended to delay the closure of the matter as the respective parties have been discharged from obligations under the decree and thus there is nothing to stay. Miss Achieng Yvonne, learned counsel for the 1st and 2nd Respondents filed a replying affidavit sworn on 14/11/2025 in response to the Appellant’s application aforesaid wherein she averred inter alia; that the Appellant’s conduct in this matter is the clearest example of abuse of court process, material non-disclosure and deliberate deception to obtain undeserved court orders; that the Appellant has already moved the trial court by way of an application seeking to set aside the impugned judgment and to be granted leave to defend the suit; that while that application is still pending, the appellant has again simultaneously approached this Honourable court seeking stay of execution and leave to appeal out of time; that the two applications seek entirely different and mutually exclusive reliefs, one premised on the setting aside of the judgment, and the other on the assumption that the same judgment stands and is now the subject of an intended appeal; that such conduct amounts to forum shopping and an abuse of the court process, as the applicant is attempting to pursue parallel remedies in two different fora arising from the same judgment; that a party cannot be permitted to litigate the same matter in multiple courts in the hope of securing a favourable outcome; that once the Appellant elected to seek the setting aside of the judgment before the trial court, he is bound by that choice and cannot, at the same time, invoke the appellate jurisdiction of this Court over the same decree; that judgment was duly entered in Siaya MCCC. No. E034 of 2022 on 12th March 2025 in favour of the 1st and 2nd Respondents, following full hearing and compliance with all procedural requirements and that a decree was extracted thereof; that the Appellant had been duly represented by J. K. Mwarandu & Co. Advocates, who was on record for the entirety of the proceedings and was receiving proper service of all court processes upto and including the judgment and assessment of costs; that upon delivery of the judgment and after pursuing the requisite post-judgment processes, the Appellant issued to us one current cheque and three post-dated cheques covering the decretal amount and taxed costs, acknowledging the judgment as final and binding; that the current cheque cleared, and the post-dated cheques are due for presentation on 08/12/2025, 07/01/2026 and 06/02/2026 to fully extinguish the judgment debt; that on 7th November 2025, the firm of Osoro Juma & Co. Advocates purported to file a Notice of Change of Advocates and an application in the trial court seeking to set aside the judgment of 12th March 2025 and be granted leave to defend the suit; that the Honourable Court declined to certify the matter as urgent and directed that the application be served upon the Respondents and that the same is coming up for mention to confirm filing of submissions on the 11th of December 2025 as can be seen from copies of the Application dated 3rd November 2025 and Court Order issued on 8th November 2025; that upon failing to obtain favourable directions in the trial court, the Appellant resorted to approach this Court by filing an application dated 7th November 2025 which this Honourable Court declined to certify as urgent and directed to be served upon the Respondents for directions on the 20th of November 2025 as can be seen from the annexed copies of the application dated 7th November 2025 and the Court Order issued on 10th November 2025; that on 11th November 2025, the Appellant filed a notice of withdrawal of the application dated 7th November 2025 without serving the 1st and 2nd Respondents and almost immediately thereafter filed a new, substantially similar application before this same court; that the Appellant has also sought leave to appeal out of time against the judgment delivered on 12th March 2025; that the issue of leave to appeal out of time has been overtaken by events, as the decretal sum and costs have already been fully satisfied by the Appellant and there is therefore no live dispute remaining to sustain such an appeal; that furthermore, the Appellant’s delay in seeking leave, coupled with their failure to fully defend the matter in the trial court despite being given several chances and their non-disclosure of payment, demonstrates a lack of clean hands and works against the grant of leave out of time; that it has been eight straight months since the judgment was delivered making the delay very inordinate in every sense of the word and no plausible explanation has been offered for it; that the timing, sequence and similarity of these two applications is suspect and demonstrates deliberate forum shopping and manipulation of the court process for the Appellant’s advantage, at the expense of the 1st and 2nd Respondents and the administration of justice in generally; that the said conduct constitutes blatant forum shopping and manipulation of the judicial process, done with the sole intent of evading the previous judicial findings that the earlier application, together with the one filed in the trial court, were not urgent; that in obtaining the said ex parte orders, the Appellant and its advocate deliberately failed to disclose to this Honourable Court that:i.The judgment had already been fully satisfied by payment;ii.There was an earlier identical application that had been declined for urgency; andiii.They had made an application before the trial court seeking to have the matter re-opened and the Appellant allowed to defend the matter, application which is pending hearing and determination.that the said concealment was calculated to mislead this Honourable Court into granting ex parte stay orders that would never have been issued had the true facts been disclosed; that the Appellants shifting legal representation from Soni & Associates, to J. K. Mwarandu & Co. Advocates and now Osoro Juma & Co. Advocates, and filing multiple similar applications is clear evidence of bad faith and intent to obstruct execution of a lawful decree; that having voluntarily issued cheques in full satisfaction of the decree, the Appellant cannot now turn around to challenge the same judgment on grounds of "mistake of counsel" or "want of knowledge."; that equity aids the vigilant, not the indolent and the Appellant’s attempt to reopen a settled matter is a cynical afterthought undeserving of the court’s discretion; that further, having already satisfied the decree, the present application has been overtaken by events and the stay order now in force serves no purpose other than to frustrate the Respondents’ enjoyment of a judgment lawfully obtained; that the right to appeal cannot be used to trounce upon the Respondents’ right of enjoying their judgment, especially when it is evident that the Respondents followed all laid down procedures in obtaining the judgment; that the Respondents are entitled to equal treatment before the law and should therefore be given the opportunity to enjoy the fruits of the judgment; that granting the orders sought will cause the Respondent to suffer irreparable harm as it will just be another avenue of delaying the enjoyment of the fruits of the Respondents’ judgment in a matter that has been in court for 4 years; that she verily believe that this Honourable Court has been deliberately misled and the ex parte stay orders issued on 11th November 2025 ought to be vacated forthwith; that she further prays that the application dated 11th November 2025 be dismissed with costs to the 1st and 2nd Respondents for being incompetent, an abuse of the court process and for having been overtaken by events. 3.Appellant filed a further affidavit dated 24th November, 2025 sworn and filed by the sales manager herein Nicholus Ngoli Inyangala wherein he averred inter alia; that the learned counsel for the 1st and 2nd Respondent did not avail evidence of authority to depose on the issue from her clients; that the allegations of forum shopping are false; that the Appellant seeks to cross-examine the deponent of the replying affidavit; that the 1st and 2nd Respondents did not take out letters of grant of the estate of Bonface Okoth Okello; that the decision of the trial court does not impede this court from granting orders sought; that the 1st and 2nd Respondents have all along known that the owner of the accident vehicle is the 3rd Respondent and not the Appellant; that the 1st and 2nd Respondents are fearful that the impugned judgement might after all be overturned to their prejudice and hence the stiff opposition to the application; that the Appellant had sold the suit vehicle to the 3rd Respondent on 2/11/2021. 4.The 1st and 2nd Respondents filed Preliminary Objection dated 23/11/2025 wherein they raised the following grounds; -i.That the present proceedings are incompetent and fatally defective, the Appellant having improperly invoked appellate jurisdiction, the same having been filed within an appeal that is itself out of time and therefore a nullity ab initio.ii.That the Appellant, having failed to file an appeal within the statutory period prescribed under section 79G of the Civil Procedure Act, could only seek extension of time by way of a stand-alone miscellaneous application, not within an appeal that has not been admitted in law.iii.That there can be no competent application for stay of execution under Order 42 rule 6 of the Civil Procedure Rules in the absence of a competent, valid appeal. The foundation upon which the application is predicated is therefore non-existent.iv.Consequently, this Honourable Court lacks jurisdiction to entertain an application seeking extension of time inside an appeal that is already incompetent as jurisdiction being everything, cannot be conferred by a pleading that is in itself void. Without jurisdiction the court must down its tools.v.That the application is therefore incompetent ab initio, fatally defective and an abuse of the court process and should be struck out with costs to the 1st and 2nd Respondents.REASONS WHEREFORE, the 1st and 2nd Respondents pray that the Appellant’s application dated 11th November 2025 be struck out with costs. 5.The application and preliminary objection was canvassed by written submission. 6.Learned counsel for the Appellant/Applicant raised two issues for determination namely, whether this Honourable Court has jurisdiction to entertain an application for enlargement of time to appeal where the appeal was filed out of time and whether the Appellant’s application is incompetent in law for seeking enlargement of time and stay of execution within the same motion. 7.As regards the first issue, it was submitted that the 1st and 2nd Respondents’ contention that this Honourable Court lacks jurisdiction because the appeal was filed out of time is legally untenable in that they have framed their Preliminary Objection as a jurisdictional challenge, arguing that the filing of an appeal out of time renders the entire proceedings a nullity and deprives this Honourable Court of jurisdiction. That the settled principle in Owners of the Motor Vessel “Lilian S” v Caltex Oil (Kenya) Ltd, where the Court held that jurisdiction is everything, and that without it a court must down its tools. The court held that:-“A question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter was then obliged to decide the issue right away on thematerial before it. Jurisdiction was everything. Without it, a court had no power to make one more step. Where a court had no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downed tools in respect of the matter before it the moment it held the opinion that it was without jurisdiction."It was submitted that in the present case, jurisdiction is expressly conferred upon this Honourable Court by Section 79G of the Civil Procedure Act which provides for the extension of time within which a party may file an appeal, subject to the court being satisfied that there is good cause for the delay. Section 79G of the Civil Procedure Act, 2010 provides that:-"...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."Further, Order 50 Rule 6 of the Civil Procedure Rules, which empowers the Court to enlarge time even after the prescribed period has expired. The 1st and 2nd Respondents’ argument ignores the plain wording and purpose of this provision. Order 50 Rule 6 of the Civil Procedure Rules, 2010 states:-"Where a limited time has been fixed for doing any act or taking any proceedings under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed."It was submitted that the power to enlarge time exists precisely to address situations where a party has defaulted in time, and it would be legally untenable to argue that the Court loses jurisdiction merely because time has lapsed. Lateness does not oust jurisdiction; it actually invokes the Court's discretion.Further, in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others, the Supreme Court affirmed that extension of time is an equitable remedy, and that courts must consider factors such as the explanation for delay, the arguability of the appeal, and the interests of justice. These are matters that can only be considered once jurisdiction is established, which it clearly is in this case. The Supreme Court held that:-"Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court; A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis; Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court; Whether there will be any prejudice suffered by the respondents if the extension is granted; Whether the application has been brought without undue delay."It was submitted that in the present case, the delay has been candidly and sufficiently explained as having been occasioned by the inadvertence and procedural missteps of previous counsel, matters which were beyond the Appellant’s personal control and were not deliberate or intended to obstruct the course of justice. Crucially, the Appellant acted with promptitude immediately upon discovering the default, demonstrating diligence rather than indolence. Further, courts have held that mistakes by counsel can and do occur, and should not, without more, be visited upon an innocent litigant. No prejudice has been demonstrated by the 1st and 2nd Respondents. In the circumstances, the explanation tendered meets the threshold set by the Supreme Court, and this is a proper case for the Court to exercise its equitable discretion in favour of extending time in the interests of substantive justice.The court went further to state that:-"No appeal can be filed out of time without leave of the court. Such a filing renders the ‘document’ so filed a nullity and of no legal consequence. Consequently, this court will not accept a document filed out of time without leave of the court.....Where one intends to file an appeal out of time and seeks extension of time, the much he can do is to annex the draft intended petition of appeal for the court’s perusal when making his application for extension of time; and not to file an appeal and seek to legalize it."It was also submitted that the 1st and 2nd Respondents’ assertion that the Appellant’s proceedings are a nullity on account of having “filed an appeal out of time” misconstrues the facts and the law. That the Appellant has not filed an appeal out of time, but has correctly approached this Honourable Court by filing an application seeking enlargement of time to appeal, which is precisely the recognized legal mechanism to obtain leave for filing an out-of-time appeal under Order 50 Rule 6 of the Civil Procedure Rules. That the application, supported by affidavit evidence, clearly sets out the reasons for delay, the arguable grounds of appeal, and the prayers for leave and stay, in full compliance with procedural requirements. That annexing a draft of the intended appeal is a proper practice to assist the Court in assessing whether the intended appeal is arguable and does not, in law, convert the application into an invalid or incompetent appeal. Accordingly, the application constitutes the seeking of leave itself and cannot be impugned as a nullity. That to strike out the application on the basis suggested by the Respondents would amount to elevating technical form over substantive justice and would unjustly deny the Appellant the opportunity to have the merits of the appeal considered. Article 159 (2)(d) of the Constitution clearly states that in administering justice one of the principles that shall guide the courts is that justice shall be administered without undue regard to procedural technicalities.In conclusion, this Honourable Court clearly has jurisdiction to entertain the Appellant's application for enlargement of time. The application is properly brought under Order 50 Rule 6, which empowers the Court to extend time even after the prescribed period has lapsed, and is supported by evidence demonstrating the reasons for delay and the arguable nature of the intended appeal. That the Appellant has acted promptly and in good faith, and no prejudice arises to the Respondents. Consistent with the principles in the above discussed cases, the Court’s jurisdiction is properly invoked and must be exercised in the interests of justice. That the Preliminary Objection dated 23rd November 2025, on this ground is therefore wholly without merit and ought to be dismissed. 8.As regards the second issue, it was submitted that Order 42, rule 6 of the Civil Procedure Rules provides:-(1)No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.In the case of RWW v EKW KEHC 6523 (KLR), where there was an application seeking the following orders:-(i)That this Court be pleased to extend the time for leave to appeal to 28 days from the date of Supply of Proceedings by the Court.(ii)That this Court be pleased to grant Stay of Execution of the Judgment delivered on 15.12.2019 pending the hearing and determination of the Respondent/Applicant’s intended Appeal;the Court observed, in paragraph 8 thereon that the purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs.That court, in paragraph 12, further observed:-It is not in dispute that the distribution of the assets the subject of the decision in the High Court was contested. The Applicant has demonstrated an intent to challenge that decision. In my view the Applicant will suffer substantial loss if he is forced to distribute the property 50:50 or sell them pending the intended appeal.The court in paragraph 14 was of the view that substantial loss would be occasioned if the Judgment was executed at that stage and accordingly allowed the Respondent/Applicant an opportunity to pursue the appeal.The following was the court’s determination:-The Application dated 25.2.2019 is allowed on the following terms;‘’(i)That the time for leave to appeal be extended to 28 days from the date of supply of proceedings.(ii)That Stay of Execution be and is hereby granted pending the Appeal.’’It was submitted that nothing bars this honourable court from granting a stay at this stage. Indeed, in the current case, substantial loss will be occasioned upon the Applicant as its property will be sold in execution of the decree herein when it had nothing to do with the accident in question for reason that it had sold the same to the 3rd Respondent as at the time of the accident in question. Considering that the Constitution protects the Appellant from arbitrary deprivation of property by dint of Article 40 thereon, to allow the sale of its properties in execution of the decree herein would be a travesty of justice, and this court will have been used by the 1st and 2nd Respondents to execute jungle rules which is frowned upon by courts.In Gusii Mwalimu Investment Co Ltd vs Mwalimu Hotel Kisii Ltd, eKLR the Court of Appeal while addressing the right of a landlord to re-entry had this to say: -"To obtain possession by carrying out illegal distress is per se wrong, if what the landlord did in the case is allowed to happen, we will reach a situation where the landlord will simply walk into the demised premises exercising his right of re-entry and obtaining possession extrajudicially.A court of law cannot allow such state of affairs whereby the law of the jungle takes over. It is a trite law that unless a tenant consents or agrees to give possessions, the landlord has to obtain all orders from a competent court or statutory tribunal (as appreciate) to obtain an order for possession"It was submitted that in the foregoing case, the landlord despite having a right of re-entry, had to go about it in accordance with the law. Let us not go into the issues of the pending appeal. However, learned counsel urged the court to take caution of the fact that one believes they have a right does not mean infringing on other peoples’ rights. That one cannot go attaching the properties of every passerby just because they have a case.It was also submitted that as to whether the Appellant’s application is incompetent in law for seeking enlargement of time and stay of execution within the same motion, the 1st and 2nd Respondents argue that the Appellant’s application is incompetent because it seeks both enlargement of time and stay of execution in the same motion and that an appeal cannot be filed out of time without leave, rendering any document filed beyond time a nullity. With respect, this contention is misplaced in law and fact.It was contended by the Appellant that it has not filed an appeal out of time but has filed a proper application seeking enlargement of time to appeal. An application for extension of time is the recognized and lawful mechanism for seeking leave to appeal out of time, as repeatedly applied by Kenyan courts. In Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others, the Supreme Court underscored that extension of time is an equitable remedy, not a right, and that a party seeking it must lay a basis that satisfies the Court that the reasons for delay are reasonable, that the application is made without undue delay, and that the respondents will not be prejudiced. The court held that:-"Extension of time being a creature of equity, one could only enjoy it if he acted equitably: he who seeks equity must do equity. Hence, one had to lay a basis that he was not at fault so as to let time to lapse. Extension of time was not a right of a litigant against a court, but a discretionary power of the courts for which litigants had to lay a basis where they sought to invoke the courts’ discretion to grant it."Furthermore, Kenyan Courts have repeatedly entertained applications for extension of time where the delay arose from oversight or error by counsel and where the intended appeal raises substantive issues meriting consideration. In Sokoro Savings and Credit Co-operative Society Ltd v Mwamburi KECA 381 (KLR) the court accepted that reliance on communication from counsel which resulted in oversight could be a basis for extension, provided the intended appeal was arguable and no prejudice would result. The court went ahead and stated that:-"The applicant herein moved within reasonable time to follow up on the matter and instructed counsel to file the instant application without unreasonable delay. The delay cannot therefore be said to be inordinate in the circumstances...Additionally, I note that the delay occasioned was as a fault of the advocate in the conduct of the matter and the applicant cannot be blamed for the delay. Without evidence to the contrary, I am unable to find carelessness in the actions of the applicant hence the explanation offered for the delay is sufficient."It was therefore submitted that is no statutory or procedural provision that forbids an applicant from combining prayers for enlargement of time and stay of execution in the same application. On the contrary, Order 50 Rule 6 Civil Procedure Rules and Order 42 Rule 6 of the Civil Procedure Rules, jointly empower the Court to exercise discretion to enlarge time and to grant stay of execution, as justice requires. What matters is that the reliefs are clearly pleaded and supported by affidavit evidence, both of which are present here. The purpose of annexing a draft of the intended appeal with the application is to enable the Court to assess the arguable nature of the appeal, which is a legitimate part of the inquiry on extension.Order 50 rule 6 of the Civil Procedure Rules, 2010 states that:-"Where a limited time has been fixed for doing any act or taking any proceedings under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed."Order 42 rule 6 of the Civil Procedure Rules, 2010 provides that: -"No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside."Additionally, courts have consistently held that procedural delays and technical shortcomings should not be allowed to override substantive justice where the applicant has acted promptly upon discovering the delay. This approach harmonizes with the constitutional directive that justice be administered without undue regard to procedural technicalities under Article 159(2)(d), Constitution of Kenya 2010, and with judicial pronouncements that mistakes by counsel should not be visited upon the litigant in the absence of clear prejudice.It was also submitted that the Appellant has explained, on oath, that the delay was occasioned by the inadvertence of previous counsel. The law is settled that such mistakes, where not deliberate, the mistakes should not be visited upon an innocent litigant.In Philip Chemwolo & Another v Augustine Kubende [1986) eKLR, Apaloo JA held:"Blunders will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case determined on its merits."Similarly, in Belinda Murai & 9 Others v Amos Wainaina eKLR, Madan JA held:"A mistake is a mistake. It is no less a mistake because it is an unfortunate slip. It is no less pardonable because it is committed by senior counsel... The door of justice is not closed because a mistake has been made by a lawyer of experience who ought to have known better."This Honourable court is being called upon to allow the Applicant an opportunity to exercise its right of appeal. To hold otherwise would be to deny the Applicant the right to be heard.Further, it has been held that to deny a litigant an opportunity to be heard should be the Court’s last resort. The Court in the case of Douglas Wambua Mutula v Kenya Ports Authority eKLR held that if it were to grant the Claimant his wish, the Court would effectively lock out the Respondent from those proceedings. The Court observed as follows:-In Sabei District Administration v Gasyali & others (1968) E.A 300 it was affirmed that to deny a party the opportunity to be heard should be an action of last resort.The right to be heard, this Court observed, therefore ranks high up. This was well captured in Mbaki & others v Macharia & another (2005) EA 2006 where it was held:-"The right to be heard is a valued right. It would offend all notions of justice if the rights of a party were to be prejudiced or affected without the party being offered an opportunity to be heard."It was finally submitted that the Applicant’s application dated 11th November 2025 is competent in law and form. That seeking enlargement of time and a stay of execution within the same motion does not render the application invalid, particularly where the Appellant acted appropriately by seeking leave before an appeal can be filed and has provided sufficient grounds in support. The 1st and 2nd Respondents’ objections on this ground therefore, are accordingly without merit and should be dismissed with costs. It was thus urged that the Application dated 11th November 2025 be allowed. Respondent’s submissions 9.It was submitted that the Appellant’s application dated 11/11/2025. These submissions oppose the Appellant’s application dated 11th November 2025 is fatally defective, incompetent and an abuse of the court process. That the Appellant has approached this Court with unclean hands, having already satisfied the decree through voluntary payment and having engaged in multiple parallel proceedings in different courts seeking contradictory orders. Learned counsel raised four issues for determination namely, whether the Appellant’s affidavits are competent, having been sworn without any authority of a limited liability company, whether an affidavit sworn by counsel on procedural or non-contentious matters is defective or fatal, whether the Appellant has met the conditions for extension of time to appeal under section 79G of the Civil Procedure Act, and finally, whether the Appellant has satisfied the legal threshold for stay of execution under Order 42 Rule 6 of the Civil Procedure Rules. a. Whether the Appellant’s affidavits are competent, having been sworn without any authority of a limited liability company. 10.As regards the first issue, it was submitted that the impugned supporting affidavit and further affidavit sworn by the sales manager is fundamentally flawed and should be struck out because the deponent lacks the requisite locus standi to represent the appellant who is a limited liability company in legal proceedings. That a company, as a distinct legal entity, must act through a formal resolution of its Board of Directors to initiate or respond to litigation. The absence of a board resolution or power of attorney explicitly authorizing the sales manager to depone on behalf of the company renders the affidavits a nullity in law. To accept an affidavit filed by an individual whose functional role is limited to sales, without formal authorization, is to undermine fundamental principles of corporate governance and the legal personality of the Limited Liability Company.Furthermore, the deponent’s lack of personal knowledge regarding key facts of the case, such as prior legal representation and the issuance of payment cheques in satisfaction of the judgment, fatally compromises the affidavit’s evidential value. That an affidavit should contain facts the deponent can prove from their own knowledge or information they believe to be true and that the sales manager is clearly not privy to the core financial and legal decisions of the company’s management, making their averments unsubstantiated hearsay. That the court has a duty to uphold procedural propriety and prevent the abuse of court process by relying on evidence from an unauthorized and uninformed deponent. That the court is urged to exercise its discretion to strike out the affidavit in its entirety. That individuals who can swear an affidavit on behalf of a company are its directors, secretary, principal officer or any other senior officer authorized in writing to represent the company and hence, the determination of the deponent’s capacity to swear an affidavit on behalf of a company hinges on the attachment of supporting evidence to the same affidavit. The affidavit should not only specify the capacity in which the deponent is making the statement but must also include proof of such capacity and authority. That the absence of evidence validating the capacity under which the sales manager swore the affidavits on behalf of the Appellant, a limited liability company, renders the affidavit incompetent and fatally defective and that the same ought to be struck out.Reliance was placed on the Ugandan case of Black Markets Records Ltd vs Malinga Sulaiman & 3 others, Uganda Misc. Application No 2788 of 2023 where the court, in striking out an affidavit sworn by an unauthorized deponent, had this to say:“Since the Applicant is a record label company, the persons authorized to swear an affidavit on its behalf would be its director, secretary or principal officer or any other senior officer authorized in writing to represent the company. Furthermore, Counsel for the Applicant did not provide any information in the written submissions regarding the capacity of the officer nor did he attach any form of an identification document to show that Mr. Cedric Singleton is an officer of the Applicant company. Determination of the deponent’s capacity to swear an affidavit on behalf of a company usually depends on attachment of proof to the same affidavit.In the matter at hand, the deponent did not attach any evidence to prove the capacity under which he swore an affidavit on behalf of the Applicant.In the case of MHK Engineering Services (U) Ltd Vs Macdowell Ltd (supra), Court after holding that indeed there was no proof attached to the affidavit to show that the deponent had capacity to depone such an affidavit on behalf of the company, went on to hold that an affidavit sworn by a person without the requisite capacity is incompetent, fatally defective and cannot be cured by any stretch of the application of the principles of substantive justice.In the circumstances therefore, since the deponent of the affidavit insupport of application did not attach any evidence to prove his capacity to swear an affidavit on behalf of the Applicant, the said affidavit is incompetent and fatally defective. It is also trite that an application has to be supported by affidavit evidence.Where there is one affidavit in support of an application and the affidavit is found to be invalid, Courts have observed that in such a case, the application is not supported by an affidavit and such an application cannot stand and it ought to be dismissed. (See: Ssali Samuel Vs Glady K. Rwamwamba, HCMA.No.514 of 2014).Further, in the case of Isingoma Michael Vs Law Development Centre HCMA No. 234 of 2019, Hon. Justice Bashaija K. Andrew held that a fatally defective affidavit cannot support an application.In the premises, for the reasons stated above, the first preliminary point of law raised by Counsel for the 4th Respondent succeeds. It is a matter of law that an application is supported by evidence by way of affidavit. In the absence of such evidence, the application is unsupported. I will therefore not delve into addressing the second point of law raised by Counsel for the 4th Respondent or the merits of the application.Accordingly, I find the Applicant’s affidavit in support of this application fatally defective and since the application is not supported by any other affidavit, it cannot stand. This application is therefore dismissed with costs to the 4th Respondent…”That the deponent even claims ignorance of the cheques voluntarily issued by the same company, the representation of the company by advocates on record, court proceedings that took place over two years. This ignorance, coupled with lack of attached proof of authority to act on behalf of the Appellant, confirms that he is not a proper, informed or authorized deponent.It was therefore urged that the said affidavits be struck out for being fatally defective and by extension, the application be dismissed entirely. 11.As regards the second issue, it was submitted that the Appellant invokes Rule 9 of the Advocates (Practice) Rules and argues that counsel should not swear affidavits. That this argument is misguided, dishonest and legally untenable. That Rule 9 only prohibits advocates from swearing affidavits on contentious matters. It expressly allows affidavits on formal or non-contentious matters of fact, including court proceedings, filing dates, representation history, procedural conduct of parties, service and execution process. That the Counsel did not depone on behalf of the clients since the 1st Respondent herself swore an affidavit dated 14th November 2025 on the factual matters within her knowledge and that Counsel, on the other hand, swore the replying affidavit and further replying affidavit as counsel on record, on matters exclusively within counsel’s knowledge, which is both lawful and proper.Reliance was placed on Civil Case No. 101 of 2011, Wachira Karani Versus Bildad Wachira (2016) where Justice Mativo, in making a determination on this issue, had this to say:“Counsel for the Respondent argues that Mr.Kingori has sworn the affidavit instead of his client. I am fully aware of circumstances where an advocate cannot put himself in the position of a party by deposing on matters which should be sworn by the parties. But a close look at the contents of the affidavit reveals that the matters contained in the affidavit are matters within the knowledge of the advocate and not the applicant. Specifically, the matters deposed to relate to the alleged service. These are matters the applicant cannot swear. I find that Mr. Kingori Advocate properly swore the affidavit.”Thus, the Appellant’s attack on counsel is legally unsound and merely a distraction to hide the substantive defects of its application. 12.As regards the third issue, the Appellant has terribly failed to meet the conditions for extension of time to appeal as envisaged under section 79G of the Civil Procedure Act. That the inordinate and unexplained delay vitiates this court’s discretion to extend time. That the power to extend time for filing an appeal is discretionary but must be exercised judiciously, based on “good and sufficient cause”. That an eight months delay from the date of judgment is inordinate by all standards and requires a compelling and satisfactory explanation, which the appellant has failed to provide. That the Appellant’s narrative of transferring files between different advocates (from Soni Advocates to Osoro Juma) is contradicted by the record, which shows that J.K Mwarandu & Co. Advocates were on record until after the delivery of judgment. That this excuse is also unsupported by evidence.That the burden is on the Appellant to explain the entire period of delay to the court’s satisfaction and not just offer a general excuse. That the court has held that if an Appellant has a good case on the merits but is out of time with no valid excuse, the court must not be swayed by sympathy. That Appellant’s inaction for eight months post-judgment demonstrates a lack of diligence and bona fides. The Appellant and all its counsels on record are guilty of laxity and slept on their rights and should not be allowed to now interfere with the rights of the 1st and 2nd Respondents who have always been keen on finalizing this matter. That the excuse given for the delay is not tenable in law, this kind of mistake does not fall within the purview of “mistake by counsel should not be visited upon the litigant.”In Civil Miscellaneous Application No. E005 Of 2025 Abraham Marangu Ncunge -Vs- Gitonga Njagi Henrey, Justice Mwongo said this while dismissing an appeal on this ground:“The grounds for extension of time of appeal are set out in section 79G of the Civil Procedure Act as follows:“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.”The reliefs sought may be granted based on the court’s discretion and pursuant to the guiding laws. The first factor to consider is whether the application was brought without delay. As at the time of filing this application, it is more than 2 years since the impugned judgment was delivered, and one month after a similar application as dismissed by the trial court on account of delay. The applicant has not made any efforts to pay the decretal amount since judgment was entered against him, neither did he make any efforts to file an appeal on time.His reason for the delay is that the judgment was read during December festivities and he could not obtain a copy until much later. This excuse is not tenable in law because the festivities did not last for over 1-year up to the time he filed a similar application before the trial court. The trial court was correct in determining that there was an unreasonable delay, a finding that this court readily agrees with and would abide by.”Further reliance was placed in the case of Dilpack Kenya Limited Versus William Muthama Kitonyi, Civil Appeal No. 142 Of 2013 where Justice Odunga dismissed two applications seeking orders of stay of execution and extension of time to appeal on grounds that the inordinate delay on the part of the Appellant had not been satisfactorily explained.Further, the Appellant’s actions demonstrate a clear intention to comply with and satisfy the judgment, thereby waiving their right to appeal. That the issuance of payment cheques for the full decretal sum and awarded costs, with one cheque already cleared, constitutes performance and acceptance of the court’s decree. That the law dictates that litigation must come to an end and parties should not be allowed to approbate and reprobate, accepting the benefits of a process while simultaneously challenging its validity. Granting an extension of time now, after the judgment debt has been effectively settled, would be an abuse of the court process and would prejudice the 1st and 2nd Respondents who are entitled to the finality and fruits of their judgment.To add to all this, the intended appeal is frivolous and not triable on merit. The arguability of the intended appeal is a key factor in exercising discretion, a component which, the proposed memorandum of appeal does not carry. The proposed memorandum of appeal introduces issues and evidence that were never presented or raised during the trial in the lower court. As a general rule, an appellate court does not entertain points of law or theories that were not brought to the attention of the trial court. The Appellant cannot be allowed to “patch up the weak points” or “make a fresh case in appeal” by introducing new evidence without meeting the stringent conditions for adducing additional evidence, such as demonstrating that the same could not have been obtained with reasonable diligence at the time of trial. Therefore, the appeal is not a genuine challenge to the lower court’s findings based on the evidence presented at trial, but rather an attempt to re-litigate the matter with new, inadmissible arguments.It was therefore urged that the Appellant has failed to meet the threshold for extension of time to file an appeal and that the said application ought to be dismissed. 13.As regards the fourth issue, a stay of execution is an extraordinary remedy designed to prevent the enforcement of a decree that remains outstanding. In this case, the judgment has been fully satisfied by the Appellant’s own voluntary actions. The purpose of a stay is to preserve the subject matter pending appeal, but the subject matter in this case (decretal sum) is already in the possession of the successful litigant, as intended by the initial judgment. That a party cannot seek to stay the execution of a judgment that they have already complied with. That the court’s discretion to grant a stay cannot extend to nullifying a completed transaction or unwinding a satisfied decree outside the specific context of a successful appeal on its merits.Order 42 Rule 6 (2) of the Civil Procedure Rules requires that an application for stay of execution must be made without unreasonable delay. That the Appellant waited for eight months after the delivery of judgment before filing their appeal and present application. Furthermore, they voluntarily issued cheques for the full decretal sum together with costs, an act that implies acceptance of the judgment and a waiver of their right to resist execution. This significant delay and subsequent payment undermine any claim that they will suffer “substantial loss” if a stay is not granted. That the court frowns upon stale claims and conduct that suggests an attempt to delay the finality of litigation after voluntarily complying with the decree.Also, the cornerstone of an application for stay of execution is the demonstration of “substantial loss” that would result if the orders were not granted. That the appellant has already paid the sum and them handing over the post-dated cheques to the Respondents is evidence of their initial intent to settle the debt. The winner of litigation has an equally weighty right to enjoy the fruits of their judgment. The burden is on the appellant to demonstrate that the respondent is a man of straw and incapable of refunding the money should the appeal succeed, a burden which the appellant has not discharged merely by applying for a stay after payment and thus Issuing a stay at this juncture would unfairly prejudice the 1st and 2nd respondents, who have a legitimate right to the funds, and would allow the appellant to use the court process to further delay final payment without a valid basis for substantial loss.In Civil Miscellaneous Application No. E005 Of 2025 Abraham Marangu Ncunge -Vs- Gitonga Njagi Henrey, Justice Mwongo said this:“It is the applicant’s assertion that substantial loss will result if the orders sought are not granted. The respondent has a right to execute for the decretal amount because he succeeded in the suit. Since the time of delivery of the trial court’s judgment, the applicant faced the risk of execution having lost in that suit. However, he did not seek stay of execution early enough and it seems that he was not keen on filing an appeal either, until 2 years later. In support of his prayer for stay of execution, the applicant has offered security in the form of a bank guarantee.The Court of Appeal in Omar Shurie v Mirian Rashe Yafar Civil Application No.107 of 2020 stated:“There is no maximum or minimum period of delay set out under the law. However, a prolonged and inordinate delay is more likely than not, to disentitle the applicant leave. Likewise, the reason or reasons for delay must be plausible.”In the present case, there is inordinate delay, implausibly explained. This does not enhance the applicant’s case.”That the Appellant has also not offered any security, yet the decree is already settled. Asking for a stay of execution at this juncture is therefore hypocritical and in bad faith. That the Appellant is simply attempting to reverse a concluded process. 14.It was finally submitted that the Applicant has failed to meet any of the legal requirements for extending time to appeal or grant of stay of execution as analyzed. That the application is in itself incompetent, fraudulent, misconceived and an abuse of the court process. That the Appellant has not satisfied the legal thresholds for grant of the orders sought. That the 1st and 2nd Respondents therefore respectfully pray that the application be dismissed with costs. 15.I have given due consideration to the application dated 11/11/2025, the Preliminary Objection dated 23/11/2025 together with the rival submissions. It is not in dispute that the trial court rendered judgement in the matter dated 12/3/2025. It is also not in dispute that the Appellant has already commenced payment in satisfaction of the decree. It is also not in dispute that the Appellant still has a pending application before the trial court dated 3/11/2025 seeking for orders to set aside the judgement and for orders of stay of execution as well as for leave to defend the suit as it has a defence which raises triable issues. As the Preliminary Objection has raised pertinent issues touching on the application dated 11/11/2025, I propose to first deal with the same before embarking on the said application. 16.It is noted that the 1st and 2nd Respondents’ preliminary objection dated 23rd November 2025 touches on the competency of the proceedings initiated by the Appellant in that the Appellant has improperly invoked the appellate jurisdiction of this court, as the appeal is itself out of time, rendering it a nullity. In accordance with the provisions of section 79G of the Civil Procedure Act, the Appellant was required to file an appeal within the statutory period and that in the event that it fails to do so, then to move the court appropriately by filing a miscellaneous application and annexing a draft copy of the Memorandum of Appeal for the court’s consideration even as the Appellant renders the explanation for delay to lodge the appeal in time. Section 79G of the Civil Procedure Act provides for this. The failure to do so necessitates a stand-alone miscellaneous application for an extension of time, not encapsulated within a subsequent appeal that lacks legal standing. It is the Respondent’s contention that this Honourable Court lacks jurisdiction to entertain the appeal or the application filed within it as the same has been instituted contrary to mandatory provisions of the law. 17.A preliminary objection on points of law envisages a situation where matters of fact are not delved into at all. The principles were laid down in Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd [1969] EA 696 where the Court of Appeal for Eastern Africa defined a preliminary objection as a point of law that has been pleaded or arises by clear implication. If argued, it should be capable of completely dispose of the suit or the specific issue in question. It must be argued on the assumption that all facts pleaded by the opposing party are completely true and thus the court should not pore through the facts or pleadings to reach a decision and that the point of law should be quite clear and can be seen on the record. It cannot be raised if the court is required to exercise judicial discretion. A perusal of the record show that the facts necessary to determine this objection are not contested as the date of judgment, date of filing the appeal and the absence of leave are pure points of law and fall squarely within the definition of a proper preliminary objection as set out in Mukisa Biscuit (supra). 18.The salient issues for determination herein therefore must be, firstly, whether an appeal filed out of time without leave is competent and secondly, whether the application for stay and extension of time filed within an incompetent appeal is proper before the Court. 19.As regards the first issue and as noted above, parties seeking to lodge appeals out of time are expected to comply with the provisions of section 79G of the Civil Procedure Act which 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…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.”The above provision is couched in mandatory terms which are: the appeal must be filed within 30 days, unless leave is sought and granted to enlarge time. Without such leave, the High Court lacks jurisdiction to admit an appeal filed out of time. This extension is not automatic. It must be applied for and granted before a party can file the appeal out of time.The question then is, how does one obtain this leave? The answer remains, by filing a stand-alone miscellaneous application under section 79G of the said Act and seek enlargement of time. In that miscellaneous application, the party must annex a draft memorandum of appeal for the Court’s consideration. Leave must be granted before a memorandum of appeal can be lodged and an appeal number issued. What a party cannot do, and what the appellant improperly did, was to file an appeal out of time, obtain an appeal number and then purport to seek leave in an application embedded within the incompetent appeal. The High Court has consistently held that leave cannot be granted retroactively to validate an appeal that was already filed without jurisdiction. Indeed, the Appellant has skirted around this sticking issue and has not given an explanation as to how it managed to secure an appeal without the requisite leave being sought first.Judgment of the lower court was delivered on 12th March 2025. The present appeal was filed on 7th November 2025, well outside the 30- day period. There is no miscellaneous application for enlargement of time under section 79G on record. The Appeal therefore remains a nullity.Instead of filing a miscellaneous application first, the Appellant filed an application for stay within an appeal already filed out of time, and in that application attached a memorandum of appeal which they referred to as an “intended appeal”. This is a fundamental procedural error for reasons that a memorandum of appeal cannot be “intended” once it has already been filed and registered as an appeal with an appeal number; and an “intended appeal” can only be attached to a miscellaneous application seeking leave to extend time and not inside an appeal that is already incompetent.A document cannot simultaneously be both a filed appeal and a draft intended appeal. This approach amounts to an abuse of process and is designed to circumvent mandatory statutory requirements. An incompetent appeal cannot be cured by filing an application within it.It is thus clear that the appeal as filed is incompetent and ought to be struck out.This position was stressed by Justice Mwongo in Gabriel Njue Muriuki & Another -Vs- Equity Bank Limited & Samuel Karithi T/A Quickline Auctioneers (Civil Appeal No. E017 of 2025) in which it was stated:-“The issue raised though the objection is that the appeal filed by the appellant is not properly before court as it was filed out of time without the leave of court as required according by section 79G of the Civil Procedure Act. The notice of motion dated 12th March 2025 seeks stay of execution of the trial court’s ruling, ending appeal. According to that application, the appeal is dated 27th February 2025 while the impugned ruling was delivered on 23rd January 2025. The court record shows that the memorandum of appeal was filed on 03rd March 2025. This is means that it was filed 8 days too late because the 30 days to appeal ended on 23rd February 2025.“79G. Time for filing appeals from subordinate courts 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.”The appellants did not move the court through an application for extension of time to appeal even though they had the option. Stay of execution orders cannot be granted in a vacuum. There are conditions to be met and execution is granted pending certain events so that the decree-holder is not unjustly denied enjoyment of the fruits of his judgment…In the circumstances, it is clear that a stay application would be a futile exercise because the purpose of the order would have been extinguished, given that the appeal is improperly before the court. Accordingly, the preliminary objection has merit and it is hereby allowed.”Also in the case of Agnes Gicuki Nyaga & Anor -vs- Augusta Nginda (HCCA No. E066 of 2025), Mwongo J also held thus:“Similarly, this case being a civil appeal, the applicants were bound to bring their appeal and application for stay of execution within the time frames provided for under the Civil Procedure Act…There is also lee way for the applicants to make any application relevant towards the ends of justice while invoking the High Court’s jurisdiction... The envisioned ends of justice include averting any unreasonable delays.Here, the applicant’s application for stay of execution and the appeal itself have been brought after a long and unexplained delay. In the eyes of equity, they have been indolent and it defeats justice itself to assume that the respondent would wait endlessly for the applicants to move a higher court at their convenience. This delay also offends the rules of natural justice since justice delayed is in essence equivalent to justice denied.Inevitably, I am bound to reach the finding that the appeal is time barred in light of the provisions of section 79G of the Civil Procedure Act, which applies in this case.In the result, the preliminary objection has merit and is hereby allowed. The court hereby orders the striking out the notice of motion dated 5th August 2025…”In Oirere V Oigara (Civil Appeal No. E020 OF 2025), in dismissing an appeal filed without leave, Magare J held:-“The jurisdiction of the court in respect of appeals is set out in section 79 G of the civil procedure act as follows: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.It follows therefore that this court cannot take up jurisdiction it does not have, where no appeal is filed within 30 days. In the case of Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR, the Supreme Court stated as doth: -“This Court dealt with the question of jurisdiction extensively in, In the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011. Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.”The court will therefore assume jurisdiction where it has and eschew jurisdiction where none exists. The appeal was filed in February 2025 for a decision that ought to have been filed on 12.10.2024. The appeal cannot proceed as it is fatally defective. Having found that the appeal is untenable for having been filed out of time, it is accordingly struck out.” 20.As regards the second issue, it is noted that the application for stay is anchored on an incompetent appeal and must also fail. The application filed by the Appellant is wholly dependent on the existence of a competent appeal. Where the appeal is incompetent, the application collapses automatically.In Owners of Motor Vessel “Lilian S” v Caltex Oil (Kenya) Ltd [1989] eKLR, the court held that jurisdiction is everything, and without it the court must down its tools. This Court cannot therefore purport to grant substantive or interim relief where the very foundation of jurisdiction, the appeal, is void.Hence, The failure by the Appellant to comply with the clear provisions of section 79G of the Civil Procedure Act renders its application dated 11th November 2025 as incompetent and is not properly before this Court. It has now turned out that the Appellant filed the appeal outside the statutory 30- days timeline without seeking proper leave as required by section 79G of the Civil Procedure Act. Again, its subsequent attempt to disguise the filed memorandum as an “intended appeal” in an application filed within the incompetent appeal is a procedural irregularity that cannot cure the defect. Indeed, the Appellant is deemed to have been aware that it was filing its memorandum of appeal outside the stipulated period. This was deliberate on its part and therefore it should not be heard to say that they now seek for extension of time. It knew that it had to seek leave first before filing the same. The application for stay is equally incompetent for being anchored on a void appeal. Hence, the appeal lacks competency and thus this court lacks the requisite jurisdiction to entertain any applications associated with it. The application for extension of time, coupled with any requests for stay of execution must therefore be dismissed on the grounds that they are premised on an appeal that is fundamentally defective. The court must now down its tools and decline any further engagement with the application. 21.In view of the foregoing observations, the 1st and 2nd Respondents preliminary objection dated 23/11/2025 has merit. The same is allowed. Consequently, a determination the Appellant’s application aforesaid become moot. The Appellant’s application dated 11/11/2025 as well as the Memorandum of Appeal dated 7/11/2025 are hereby orderd struck out with costs to the 1st and 2nd Respondents. The costs of the Preliminary Objection are awarded to the said 1st and 2nd Respondents. The earlier orders of stay of execution are hereby vacated. DATED AND DELIVERED AT SIAYA, THIS 22ND DAY OF MAY 2026.D. KEMEIJUDGEIn the presence of:Mwagi for Osoro...........................for AppellantM/s Achieng.................................for 1st & 2nd RespondentsN/A ...............................................for 3rd RespondentM/s Mourine......................................Court Assistant