Philip Matanda Musundi v Stephen Francis Musundi & 4 others

ii. That the applicant’s counsel J.O. Makali who acted for the applicant was not present when the judgment was delivered. iii. That the said counsel thereafter ventured into politics and was unavailable to advise the applicant properly. iv. That the issue was compounded by the applicant’s advanced age and ill-health which distracted him. v. That the delay was inadvertent for reason of lack of advise. vi. That it is fair that he be granted leave to appeal. vii. That no one would suffer prejudice. viii. That this court has jurisdiction to enlarge time for leave to appeal and giving notice of intention to appeal notwithstanding that time has expired. ix. That the applicant is desirous of pursuing justice and craves for a chance. 3. The applicant through supporting affidavit sworn on 20/9/2023 reiterated the above grounds. 4. He avers that he was aggrieved by the judgment of this court delivered by Hon. Justice Chemitei which according to him did not consider the wishes of the deceased in this cause. 5. That he is desirous of pursuing the intended appeal and the doors of justice should be opened for him. 6. He has exhibited a copy of draft Memorandum of Appeal, medical report and medical documents to support his claims. 7. In his written submissions done through learned counsel M/s Kiveu Advocate LLP submits that from the draft Memorandum of Appeal his intended appeal raises key issues like discrimination of the female beneficiaries. 8. He further submits that failure to be advised was a mistake of his counsel and that the mistake should not be visited on him. 9. The respondents through a replying affidavit sworn by Joel Lumbasi Musundi on 28/10/2025 have opposed this application. 10. According to the respondents this court is now functus officio having pronounced itself. They contend that the applicant can seek the orders from the Court of Appeal. 11. They further point out that the delay of about 1 ½ years has not been well explained. 12. They aver that all the beneficiaries are peacefully enjoying what was granted to them in the judgment and that this application is merely meant to stall the process of administration. 13. In his written submission dated 4/12/2025, the 2nd respondent contends that this application is coming up almost 7 years after the judgment was delivered and the application was filed after around 5 years. He contends that the allegation of sickness by the applicant is a cover up meant to seek sympathy from this court. 14. He submits that the applicant ought to move the Court of Appeal on extension under Rule 4 for extension of time and not this court. 15. He contends that the sisters who failed in their bid to appeal are using the applicant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8039/eng@2026-06-09 2

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16. This court has considered this application and the responses made. The applicant is seeking for extension of time to file Notice of Appeal out of time. Extension of time is an equitable remedy and a party seeking it must demonstrate that it is deserving of a court’s discretion to extend time. A party seeking extension of time must give plausible explanation to explain delay and the court will consider the reasons given alongside the length of delay and prejudice if any to the other party or parties. 17. In this matter, the applicant moved this court for extension of time after delay of almost 5 years because the subject judgment was delivered on 23/7/2019 and this application was filed on 2/10/2023. 18. The basis for delay is given by the applicant as; 19. i. That his counsel was involved in politics. ii. That he was unwell. This court has considered the reasons given and I find them wanting for the following reasons; a. The applicant has not stated if Makali Advocate was the sole advocate in the firm so that if he was engaged in other activities there was no one to handle the brief. b. The applicant has not shown what action he took against the advocate if he failed in his professional duties by engaging in politics and neglecting his clients including the applicant. c. This court has scrutinized the medical chits exhibited and all of them bear the year 2023. This means that there are no documents indicative that for 5 years the applicant was bedridden or sick. 20. I have also looked at the application and find that the applicant has invoked the Court of Appeal Rules. The Court of Appeal has jurisdiction under the provisions of Rule 4 and 43 to extend time but this court also was given jurisdiction under Section 7 of Appellate Jurisdiction Act to extend time. 21. This court cannot fault the applicant for approaching it for extension of time but I find the reasons or basis for enlargement of time wanting as I have stated above. For that reason, this court finds no merit in the application dated 20/9/2023. The same is disallowed but I make no order as to costs. DELIVERED, DATED AND SIGNED AT KITALE THIS 9TH DAY OF JUNE, 2026. HON JUSTICE R.K. LIMO KITALE HIGH COURT Ruling delivered in open court In the presence of Mufutu holding brief for Ngeiwa for 3rd & 4th respondents Mukanda holding brief for Nakitare for the 2nd respondent David Musundi Onesmus Musundi Duke/Chemosop- Court assistants https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8039/eng@2026-06-09 3

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