Kenneth Omondi Okello v Saito Yukie Rombo

Scheme declined to release the pension funds, the respondent filed a complaint before the Retirement Benefits Authority (RBA), which complaint was dismissed on 4th July 2024. 4. On 2nd August 2024 the respondent filed an appeal before the Retirement Benefits Appeals Tribunal and on 27th August 2024. Kenyatta University Staff Retirement Benefits Scheme instructed its advocates to defend the appeal. On 19th December 2024 Retirement Benefits Appeal Tribunal allowed the appeal and ordered the release of the benefits that had been apportioned and set aside for the deceased’s minor beneficiaries. Thereafter no appeal was preferred to this Court. 5. The applicant, who is acting in person, says that the delay in filing the appeal was occasioned by the pension manager of the Kenyatta University Staff Retirement Benefits Scheme and the firm of Nyachoti & Partners, who did not inform him in time that they were not pursuing the appeal. 6. The applicant believes that the intended appeal is arguable, saying that the court misdirected itself by relying on the date of issuance of birth certificates for the minor beneficiaries which was 18th October 2016, yet the registration had been done on 30th August 2014. He also faults the court for finding that the minor beneficiaries were not the children and/or dependants of the deceased. The applicant contends that he should not be condemned for a mistake that was occasioned by other parties. 7. The respondent did not file any replying affidavit but filed submissions. In his submissions the respondent states, inter alia, that section 7 of the Appellate Jurisdiction Act confers the High Court with power to extend time for filing an appeal; that pursuant to that provision, the applicant sought leave from the High Court vide an application dated 11th March 2014 and the same was granted vide a ruling dated 14th August 2024, but the applicant did not file any appeal. The respondent therefore contends that if the leave granted by the High Court lapsed, the applicant ought to have gone back to that court to seek extension of the same rather than file an application before this Court. 8. The respondent further submits that there has been inordinate delay in filing this application and the delay has not been explained sufficiently. 9. The respondent further states that the application is intended to keep her in endless litigation over the estate of her deceased husband, which is highly prejudicial to her and urges this Court to dismiss the same with costs. 10. I have considered the application as well as the submissions filed by the parties. In Thuita Mwangi vs Kenya Airways Limited, Civil Appeal No. 162 of 2002, this Court stated “It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters which this court takes into account in deciding whether to grant an extension of time are: first, the length of the delay; secondly, the reason for the delay; thirdly (possibly), the chances of the appeal succeeding if the application is granted; and, fourthly, the degree of prejudice to the respondent if the application is granted.” 11. It is not in dispute that the applicant was granted leave by the High Court to file an appeal out of time on 14th August 2024. He filed a notice of appeal on 20th August 2024 and on 27th August 2024 he applied for typed copies of the proceedings. He states that the letter bespeaking proceedings was also emailed to the respondent’s advocates together with the notice of appeal, but the respondent’s advocates do not seem to have received the same. 12. That notwithstanding, there is no explanation why the application for extension of time was not filed until 27th February 2025. The current application was filed 450 days from the date of the judgment https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1764/eng@2025-10-24 2

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sought to be appealed from, and 161 days from the date he was granted leave to file an appeal out of time. That delay has not been well explained. It is not enough to state that the delay is attributable to the failure of the Kenyatta University Staff Retirement Benefits Scheme to inform the applicant that it had not instructed the firm of Nyachoti & Partners advocates to lodge an appeal. Even if that was the case, the applicant ought to have moved with speed as soon as he was granted leave by the High Court on 14th August 2024 to file an appeal out of time. 13. I have perused the impugned judgment as well as the proposed grounds of appeal by the applicant. I entertain serious doubts as to chances of success of the intended appeal. 14. All in all, I find this application unmeritorious and dismiss it. Each party shall bear its own costs of the application. DATED AND DELIVERED AT NAIROBI THIS 24TH DAY OF OCTOBER 2025. D. K. MUSINGA, (PRESIDENT) ............................. JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR. https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1764/eng@2025-10-24 3

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