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6. That there be a stay of execution of the judgment and decree of the Honourable Kaimenyi Kanyiri delivered on the 10th day of June, 2025 in Karatina Chief Magistrate’s Court Civil Suit No. MCCC/E072/2022, pending the hearing and determination of the intended appeal. 7. That the costs of this application be in the cause.” 2. The application was premised upon Sections 1A, 1B, 3A, 63 (e) and 79 (e) of the Civil Procedure Act (Cap 21), Order 42 Rule 6, Order 50 Rule 6 and Order 51 Rule of the Civil Procedure Rules 2020 and all enabling provisions of law and was supported by the Affidavit of even date sworn by the 1st Applicant. 3. The Respondents 2nk Sacco Co-operative Savings & Credit Society Ltd And George Ngari Machina opposed the application through the Replying Affidavit dated 1st October 2025 sworn by Karweru Muchemi Charles an advocate of the High Court of Kenya. 4. The matter was canvassed by way of written submissions. The Applicants filed the written submissions dated 24th November 2025 whilst the Respondent relied upon their written submissions dated 3rd December 2025 . Background 5. The Applicants had filed a suit being Karatina MCC E072 of 2022 before the Magistrates Court seeking special and general damages in respect of a motor vehicle accident. The suit was heard in the Lower Court and vide the judgment delivered on 10th June 2025 Hon. Kaimenyi Kanyiri sitting at the Karatina Law Courts dismissed the suit and awarded costs to the Defendant. 6. The Applicants were aggrieved by the decision of the trial court and now purpose to file an appeal. They filed this application seeking for extension of time within which to file the appeal and also praying for a stay of execution of the said judgment pending appeal. Analysis And Determination 7. I have carefully considered the application before this court, the reply filed thereto as well as the written submissions filed by both parties. 8. Section 79G of the Civil Procedure Act Cap 21, Laws of Kenya provides 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 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.” [Own emphasis] 9. Therefore the statutory period allowed within which one is required to file an appeal is thirty (30) days. However with the leave of the court this statutory period may be extended. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3407/eng@2026-03-13 2

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10. In the case of Nicholas Kiptoo Arap Salat -vs- IEBC & 7 Others [2014] EKLR, the Supreme Court of Kenya enunciated the principles applicable in considering an application for leave to file appeal out of time as follows:“ (a) Extension of time is not a right of any party. It is an equitable remedy that is only available to deserving party at the discretion of the court. (b) A party who seeks for extension of time has the burden of laying a basis of the satisfaction of the court. (c) Whether the court should exercise the discretion to extend time, is a consideration to be made on a case by case basis. (d) Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court. 11. (e) Whether there will be any prejudice sufiered by the respondent if the extension is granted. (f) Whether the application has been brought without undue delay.” Likewise in the case of Paul Musili Wambua -vs- Attorney General & 2 Others [2015] eKLR the Court of Appeal in considering an application for leave to file appeal out of time stated as follows;“ …………………..It is now settled by a long line of authorities by this court that the decision of whether or not to extend the time for filing an appeal the Judge exercise unfettered discretion. However in the exercise of such discretion, the court must act upon reason (s) not based on whim or caprice. In general the matters which a court takes into account in deciding whether or not to grant an extension of time are the length of the delay, the reason for the delay, the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the application is granted.” 12. The law and authorities are clear that the decision of whether or not to allow an extension of time to file appeal lies squarely within the discretion of the court. Such leave ought only be granted when sufficient cause is shown. 13. The impugned judgment was delivered on 10th June 2025. As such the appeal ought to have been filed within thirty (30) days of that date. This application for extension of time was filed on 4th August 2025 approximately two (2) months after delivery of said judgment. 14. The Applicants have explained that they and their legal counsel were engaged in analyzing the judgment hence the delay. I will not comment on the reasons advanced save to say that in my view the delay of two (2) months is not inordinate. 15. The Applicants have annexed to the supporting affidavit a draft Memorandum of Appeal (Annexture ‘JMM2’). It is not the business of this court to determine the merits or otherwise of the intended appeal. In my view the Draft Memorandum raises triable issues which the Applicants ought to be allowed an opportunity to ventilate. I therefore find merit in the prayer for extension of time and the same is hereby allowed. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3407/eng@2026-03-13 3

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16. The Applicants have sought for a stay of execution of the judgment delivered on 10th June 2025 pending the hearing and determination of their intended appeal. I have carefully perused the judgment dated 10th June 2025. The trial court in that judgment dismissed in its entirety the suit which had been filed by the Applicants and awarded costs to the Respondents. 17. Dismissal of a suit is a ‘negative order’ since such order of dismissal does not require any party in the suit to do or to desist from doing action. Such a negative order cannot in law be stayed. 18. The Applicants have submitted that they are apprehensive that the Respondents may proceed to execute the judgment to their detriment. What orders exactly would the Respondents be executing? 19. In the case of Registered Trustees Kenya Railways Staff Benefits Scheme -vs- Milimo, Muthoni & Co. Advocates & 2 Others 2021 eKLR the court stated as follows:“ ……………Negative orders cannot be stayed.” 20. Similarly in Western College Of Arts And Applied Science -vs- Oranga & Others [1976] 1 KLR, the Court of Appeal stated that:“ Additionally even if we had the requisite jurisdiction, this court has said time without number that stay orders cannot issue in respect of negative orders, where the court has not ordered any of the parties to perform any task……………..” 21. Finally in the case of John Mbugua -vs- Kenya Commercial Bank [2021] eKLR, the Court held that an order dismissing a suit was a negative order and was incapable of being stayed. 22. The prayer for stay therefore falls fiat on its face and is dismissed. 23. Finally this application is only partially successful. This court makes the following orders:1. The Applicants are granted a thirty (30) day extension from the date of this ruling within which to file their appeal. 2. The Annexed Draft Memorandum of Appeal is to be deemed as duly filed upon payment of the requisite Court fees. 3. The application for stay of execution of the judgment delivered on 10th June 2025 in Karatina CMCC No. MCCC/E072/2022 is dismissed. 4. Each party to meet their own costs for this application. DATED IN NYERI THIS 13TH DAY OF MARCH 2026. MAUREEN A. ODERO JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3407/eng@2026-03-13 4

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