Joyce Mumo Muindu & Faith Ndinda Muindu (Suing as the legal Representatives of the estate of the late James Muindu NdundaDeceased) v Robert Muli Matolo

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 H.C. C. MISC. APPL. E012/26 Joyce M. Muindu vs Robert Muli Matolo Page 2 of 5

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that he had good and sufficient cause for not filing the appeal in time.” 8) 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.” 9) 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. 10)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 H.C. C. MISC. APPL. E012/26 or not to extend the Joyce M. Muindu vs Robert Muli Matolo time for Page 3 of 5

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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”. 11. 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. 12. 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. 13. 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. H.C. C. MISC. APPL. E012/26 Joyce M. Muindu vs Robert Muli Matolo Page 4 of 5

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14. 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 H.C. C. MISC. APPL. E012/26 Joyce M. Muindu vs Robert Muli Matolo Page 5 of 5

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