Peter Gachie Gitimu & Kelvin Gitimu (suing As The Legal Representatives of The Estate of The Late Lucy Wangui Gachie) v Esther Muthoni Gitumbu

of the claim ,as well as their Bank particulars to facilitate payment; that the particulars were supplied on 15/09/2023. A copy of the two letters from the said Advocates are attached to the Affidavit. 4. The Respondent further states that the payment of the decretal sum was affected on 22/10/25, by her insurer, M/S Cannon General Assurance, and it was only upon settlement of the claim that the present Application was filed. It is stated that it is obvious therefore that the Applicants were only awaiting settlement then seek to file the Appeal. That the delay was not caused by the reasons given. It is further stated that there was no evidence of illness on the part of the 1st Applicant, or travel on the part of the 2nd Applicant. The Respondent further states that she will suffer injustice, inconvenience and exhaustion. on account of prolonged litigation. 5. The Application proceed by of written Submissions which both parties filed. I have read through, and considered the same. Determination 6. The power to extend time to file an Appeal is a discretionary power and like any discretionary power, it is to be exercised judiciously. The Supreme Court in the case of Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR) set the parameters of the exercise of discretion in respect of such Application as follows: a. Extension of time was not a right of a party. It was an equitable remedy that was only available to a deserving party at the discretion of the court; b. A party who sought extension of time had the burden of laying a basis for it to the satisfaction of the court; c. Whether the court ought to exercise the discretion to extend time, was a consideration to be made on a case to case basis; d. Whether there was a reasonable reason for the delay, which ought to be explained to the satisfaction of the court; e. Whether there would be any prejudice suffered by the respondents if the extension was granted; f. Whether the application had been brought without undue delay; and; g. Whether in certain cases, like election petitions, public interest ought to be a consideration for extending time. 7. Further, in the case of Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] KECA 701 (KLR) the court of Appeal placed particular emphasis on a plausible explanation for the delay . It held: “A plausible and satisfactory explanation for delay is the key that unlocks the court’s flow of discretionary favour. There has to be valid and clear reasons, upon which discretion can be favourably exercisable.” 8. Contrary to the Respondent’s submissions, there is sufficient evidence that the 1st Applicant was indeed unwell while the 2nd one had travelled at the time or around the time of delivery of judgment by the trial court. The Court observes that both instances of travelling and illness can indeed take away the attention of affected persons from their other undertakings. I am satisfied that the two situations constitute sufficient cause for the delay. 9. The Respondent has argued that, the Applicants real reason for the delay was that they were waiting to receive payment of the decretal sum, before filing an Appeal. There is also evidence that indeed their https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6453/eng@2026-05-07 2

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counsel was aware about the delivery of Judgment and had worked out what he considered to be the amount due to his clients. 10. On the real intentions of the Applicants, that is a matter of speculation, not evidence. On the fact that the Applicants’ Advocate was aware about the judgment, the court takes Judicial Notice as a matter of law that Advocates can only act on instructions of a client. Thus, the fact that the Applicants ‘Advocate did not take steps did not take away the Applicants’ right to seek the prayers being sought, in the circumstances appertaining to the present Application. The circumstances were that unlike in the ordinary course of proceedings where an Advocate is deemed to speak for the client at all times, the instructions on whether to Appeal a decision needs the consent of a client. 11. Further accepting payment of the award could not, and cannot act as a bar to the right of Appeal. 12. In the end, the Application is merited. The same is hereby allowed. The Memorandum of Appeal to be filed and served within 14 days from the date of this Ruling. DATED, SIGNED AND DELIVERED AT ISIOLO, THIS 7TH DAY OF MAY, 2026 S. CHIRCHIR JUDGE In the presence of:Roba/Kalelo-Court Assistant Mr. Kipkirui for theApplicant Ms Cheruiyot for the Respondent https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6453/eng@2026-05-07 3

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