1. The Applicants have filed an application dated 10 th March 2026 seeking for orders for stay of proceedings in Mpeketoni MCCC No.E016 of 2024 pending the hearing and determination of the appeal filed herein.
2. The application is premised on grounds stated on the face of the application and supported by the affidavit of the Applicant, Damaris Njoki Muthoni. The grounds in support thereof are that the Applicant is aggrieved by the ruling and orders of the trial magistrate in which the magistrate allowed the Respondent to adopt and rely on a deceased Plaintiff`s witness statement during the hearing of the case. It is the contention of the Applicant that the finding of the court is against the rules of evidence. That it is in the interests of justice for the proceedings to be stayed awaiting the outcome of the appeal. That unless the proceedings are stayed the appeal will be rendered nugatory. That the Respondents will not suffer any prejudice if the orders sought are granted.
3. The application was opposed by the Respondents vide the replying affidavit of the 1 st Respondent sworn on 30 th March 2026 wherein she deposes that the application is fatally defective, incompetent and an abuse of the court process. That the ruling sought to be appealed against was delivered on 28 th November 2025 yet the Memorandum of Appeal was filed on 28 th January 2026 which is outside the 30 days statutory period prescribed under the law for filing appeals to the High Court from subordinate courts. That no leave has been sought or obtained to file the appeal out of time, nor has any explanation been offered for the inordinate delay. That absence of leave renders the appeal incurably defective, incompetent and a nullity in law.
4. It was further affirment of the Respondent that the contention by the Applicant that the ruling was delivered on 10 th December 2025 is false and misleading. That the same was delivered on 28 th November 2025. The Respondent urged the court to dismiss the application with costs.
5. The application was canvassed by way of written submissions. The Applicant submitted that the power to grant stay of proceedings pending appeal is discretionary and exercised by the court upon consideration of the facts and circumstances of each case that would lead the court to be of the view that the appeal will be rendered nugatory if the proceedings are not stayed. That the appeal raises arguable issues and it is therefore in the interests of justice that the proceedings in the trial court be stayed pending the determination of the appeal. The Applicant relied on the case of Global Tours $ Travel Limited - Nairobi HC Winding Up Cause No.43 of 2000 where the court quoted Ringera J. as follows:
“As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of Justice .... the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously”.
6. Further reliance was made in the case of Niazsons (K) Limited v China Road & Bridges Corporation (Kenya) (2001) eKLR where it was held:
Where the appeal may have very serious effects on the entire case so that if stay of proceedings is not granted the result of the appeal may well render the orders made nugatory and render the exercise futile, stay…may be granted.
7. The Respondents on the other hand submitted that the appeal is fatally defective, incompetent and incurably bad in law for having been filed outside the mandatory timelines prescribed under section 79G of the Civil Procedure Act. That no leave to file the appeal out of time was obtained. That without leave there exists no competent appeal capable of sustaining the present application for stay of proceedings. That the application is founded upon a defective substratum and collapses ab initio. That the court lacks jurisdiction to entertain the appeal and as such the application for stay is unsustainable.
8. The Respondent submitted that the applicant has not satisfied the threshold for grant of stay of proceedings. That courts have consistently held that stay of proceedings should only issue in the clearest of the cases and under exceptional circumstances. Reliance was placed in the case of Kenya Wildlife Service Vs James Mutembei (2019) eKLR , Gikonyo J held that:
“Stay of proceedings is a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation. It impinges on right of access to justice, right to be heard without delay and overall, right to fair trial. Therefore, the test for stay of proceeding is high and stringent”.
9. It was submitted that the power to grant stay of proceedings is discretionary. The Respondent cited the case of Global Tours $ Travel Limited. Nairobi HC Winding Up Cause No.43 of 2000 where the court quoted Ringera J.as follows:
“As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of Justice .... the sole question is whether it is in the interest of justice to order a stay of proceedings….
10. That it is settled law that courts are generally slow to interfere with discretionary decisions of trial courts unless it is shown that the court misdirected itself, considered irrelevant factors, failed to consider relevant factors or arrived at plainly wrong decision. That the Applicant has failed to demonstrate any such misdirection and merely expresses dissatisfaction with the outcome of the ruling.
11. It was submitted that the Applicant failed establish that the appeal will be rendered nugatory if the proceedings before the subordinate court are allowed to proceed. That the appeal challenges an interlocutory evidentiary ruling relating to adoption of deceased`s witness statement. It was argued that even if the proceedings are allowed to procced this court still retains appellate jurisdiction over the matter. Therefore, that the continuation of proceedings does not distinguish, defeat or render useless the Appellant`s rights of appeal.
12. According to the Respondents the application is not made in good faith but is a calculated attempt to delay, obstruct and frustrate the expeditious determination of the lower court`s proceedings and is therefore an abuse of the court process. The Respondents urged the court to dismiss the application.
Analysis and determination
13. I have considered the grounds in support of the application, the grounds in opposition thereto and the submissions tendered by the respective counsels for the parties. The issue for determination is whether the application is sustainable and if so, whether it is merited.
14. Counsel for the Respondents submitted that the application is fatally defective, incompetent and incurably bad in law as it was filed outside the mandatory timelines prescribed under section 79G of the Civil Procedure Act. The said section provides as follows:
“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.”
15. It was the contention of the Respondents that the provisions of the section are mandatory. That the ruling sought to be appealed against was delivered on 28 th November 2025 and that by the time the appeal was filed on 28 th January 2026, the statutory period prescribed for lodging appeals had expired and no leave to file appeal out of time was sought.
16. The Applicant on the other hand contends that the ruling that is the subject of the appeal was delivered on 10 th December 2025 and therefore that the application is properly before this court.
17. I have perused the ruling that was filed together with the memorandum of appeal. The same indicates that it was uploaded into the Court Tracking System (CTS) on the 28 th November 2025, which means that that is the date the ruling was delivered. The argument by the Applicant that the ruling was delivered on 10 th December 2025 is not backed by any evidence and cannot therefore be true.
18. It is then evident that when the appeal was filed on 28 th January 2026, the statutory period prescribed by the law of 30 days for filing appeals to the High Court had expired. No leave to file appeal out of time was sought before the appeal was filed. The appeal is therefore incompetent.
19. It is to be noted that section 79G of the Civil Procedure Act is couched in mandatory terms. In Mapesa v Amakobe [2025] KEELC 4794 (KLR) where the appeal was filed out of time, the court held that:
20. Section 79G of the Civil Procedure Act is couched in mandatory terms in so far as the 30-day period for filing appeal is concerned. Hence the court has no discretion to hear an appeal filed out of time without leave of court. An appeal filed out of time without leave of court is fatally incompetent and its fate is an order for striking it out, as the court has no jurisdiction to determine an incompetent appeal.
21. In the case of Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR) , where the appeal was filed out of time, the Supreme Court held:
…It cannot be gainsaid that where the law provides for the time within which something ought to be done, if that time lapses, one need to first seek extension of that time before he can proceed to do that which the law requires…..No appeal can be filed out of time without leave of the Court. Such a filling renders the ‘document’ so filed a nullity and of no legal consequence… that document is unknown in law and the same should be struck out.
22. The upshot is that there is no competent appeal before this court and the court lacks jurisdiction to entertain it. The so-called appeal having been filed out of time, without leave of the court and the same being incompetent, the application dated 10 th March 2026 has no legs to stand on and is unsustainable. I find the application and the appeal to be incurably incompetent and the same are struck out with costs to the respondents.
In the presence of :
Miss Nyambane for Appellant/Applicant
Mr. Munyao for Respondent
Court Assistant - Rahma
Hon Jesse Nyaga5
2. The application is premised on grounds stated on the face of the application and supported by the affidavit of the Applicant, Damaris Njoki Muthoni. The grounds in support thereof are that the Applicant is aggrieved by the ruling and orders of the trial magistrate in which the magistrate allowed the Respondent to adopt and rely on a deceased Plaintiff`s witness statement during the hearing of the case. It is the contention of the Applicant that the finding of the court is against the rules of evidence. That it is in the interests of justice for the proceedings to be stayed awaiting the outcome of the appeal. That unless the proceedings are stayed the appeal will be rendered nugatory. That the Respondents will not suffer any prejudice if the orders sought are granted.
3. The application was opposed by the Respondents vide the replying affidavit of the 1 st Respondent sworn on 30 th March 2026 wherein she deposes that the application is fatally defective, incompetent and an abuse of the court process. That the ruling sought to be appealed against was delivered on 28 th November 2025 yet the Memorandum of Appeal was filed on 28 th January 2026 which is outside the 30 days statutory period prescribed under the law for filing appeals to the High Court from subordinate courts. That no leave has been sought or obtained to file the appeal out of time, nor has any explanation been offered for the inordinate delay. That absence of leave renders the appeal incurably defective, incompetent and a nullity in law.
4. It was further affirment of the Respondent that the contention by the Applicant that the ruling was delivered on 10 th December 2025 is false and misleading. That the same was delivered on 28 th November 2025. The Respondent urged the court to dismiss the application with costs.
5. The application was canvassed by way of written submissions. The Applicant submitted that the power to grant stay of proceedings pending appeal is discretionary and exercised by the court upon consideration of the facts and circumstances of each case that would lead the court to be of the view that the appeal will be rendered nugatory if the proceedings are not stayed. That the appeal raises arguable issues and it is therefore in the interests of justice that the proceedings in the trial court be stayed pending the determination of the appeal. The Applicant relied on the case of Global Tours $ Travel Limited - Nairobi HC Winding Up Cause No.43 of 2000 where the court quoted Ringera J. as follows:
“As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of Justice .... the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously”.
6. Further reliance was made in the case of Niazsons (K) Limited v China Road & Bridges Corporation (Kenya) (2001) eKLR where it was held:
Where the appeal may have very serious effects on the entire case so that if stay of proceedings is not granted the result of the appeal may well render the orders made nugatory and render the exercise futile, stay…may be granted.
7. The Respondents on the other hand submitted that the appeal is fatally defective, incompetent and incurably bad in law for having been filed outside the mandatory timelines prescribed under section 79G of the Civil Procedure Act. That no leave to file the appeal out of time was obtained. That without leave there exists no competent appeal capable of sustaining the present application for stay of proceedings. That the application is founded upon a defective substratum and collapses ab initio. That the court lacks jurisdiction to entertain the appeal and as such the application for stay is unsustainable.
8. The Respondent submitted that the applicant has not satisfied the threshold for grant of stay of proceedings. That courts have consistently held that stay of proceedings should only issue in the clearest of the cases and under exceptional circumstances. Reliance was placed in the case of Kenya Wildlife Service Vs James Mutembei (2019) eKLR , Gikonyo J held that:
“Stay of proceedings is a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation. It impinges on right of access to justice, right to be heard without delay and overall, right to fair trial. Therefore, the test for stay of proceeding is high and stringent”.
9. It was submitted that the power to grant stay of proceedings is discretionary. The Respondent cited the case of Global Tours $ Travel Limited. Nairobi HC Winding Up Cause No.43 of 2000 where the court quoted Ringera J.as follows:
“As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of Justice .... the sole question is whether it is in the interest of justice to order a stay of proceedings….
10. That it is settled law that courts are generally slow to interfere with discretionary decisions of trial courts unless it is shown that the court misdirected itself, considered irrelevant factors, failed to consider relevant factors or arrived at plainly wrong decision. That the Applicant has failed to demonstrate any such misdirection and merely expresses dissatisfaction with the outcome of the ruling.
11. It was submitted that the Applicant failed establish that the appeal will be rendered nugatory if the proceedings before the subordinate court are allowed to proceed. That the appeal challenges an interlocutory evidentiary ruling relating to adoption of deceased`s witness statement. It was argued that even if the proceedings are allowed to procced this court still retains appellate jurisdiction over the matter. Therefore, that the continuation of proceedings does not distinguish, defeat or render useless the Appellant`s rights of appeal.
12. According to the Respondents the application is not made in good faith but is a calculated attempt to delay, obstruct and frustrate the expeditious determination of the lower court`s proceedings and is therefore an abuse of the court process. The Respondents urged the court to dismiss the application.
Analysis and determination
13. I have considered the grounds in support of the application, the grounds in opposition thereto and the submissions tendered by the respective counsels for the parties. The issue for determination is whether the application is sustainable and if so, whether it is merited.
14. Counsel for the Respondents submitted that the application is fatally defective, incompetent and incurably bad in law as it was filed outside the mandatory timelines prescribed under section 79G of the Civil Procedure Act. The said section provides as follows:
“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.”
15. It was the contention of the Respondents that the provisions of the section are mandatory. That the ruling sought to be appealed against was delivered on 28 th November 2025 and that by the time the appeal was filed on 28 th January 2026, the statutory period prescribed for lodging appeals had expired and no leave to file appeal out of time was sought.
16. The Applicant on the other hand contends that the ruling that is the subject of the appeal was delivered on 10 th December 2025 and therefore that the application is properly before this court.
17. I have perused the ruling that was filed together with the memorandum of appeal. The same indicates that it was uploaded into the Court Tracking System (CTS) on the 28 th November 2025, which means that that is the date the ruling was delivered. The argument by the Applicant that the ruling was delivered on 10 th December 2025 is not backed by any evidence and cannot therefore be true.
18. It is then evident that when the appeal was filed on 28 th January 2026, the statutory period prescribed by the law of 30 days for filing appeals to the High Court had expired. No leave to file appeal out of time was sought before the appeal was filed. The appeal is therefore incompetent.
19. It is to be noted that section 79G of the Civil Procedure Act is couched in mandatory terms. In Mapesa v Amakobe [2025] KEELC 4794 (KLR) where the appeal was filed out of time, the court held that:
20. Section 79G of the Civil Procedure Act is couched in mandatory terms in so far as the 30-day period for filing appeal is concerned. Hence the court has no discretion to hear an appeal filed out of time without leave of court. An appeal filed out of time without leave of court is fatally incompetent and its fate is an order for striking it out, as the court has no jurisdiction to determine an incompetent appeal.
21. In the case of Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR) , where the appeal was filed out of time, the Supreme Court held:
…It cannot be gainsaid that where the law provides for the time within which something ought to be done, if that time lapses, one need to first seek extension of that time before he can proceed to do that which the law requires…..No appeal can be filed out of time without leave of the Court. Such a filling renders the ‘document’ so filed a nullity and of no legal consequence… that document is unknown in law and the same should be struck out.
22. The upshot is that there is no competent appeal before this court and the court lacks jurisdiction to entertain it. The so-called appeal having been filed out of time, without leave of the court and the same being incompetent, the application dated 10 th March 2026 has no legs to stand on and is unsustainable. I find the application and the appeal to be incurably incompetent and the same are struck out with costs to the respondents.
In the presence of :
Miss Nyambane for Appellant/Applicant
Mr. Munyao for Respondent
Court Assistant - Rahma
Hon Jesse Nyaga5