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Nancy Wangari Simba (Substituted) & Dominic Wanjohi Simba (Added) v. Cyrus Macharia Gitonga and John Maina Gitonga (Suing as the Legal Representatives of the Estate of Francis Gitonga Macharia (Deceased), Naomi Njeri Karumba (Substituted) & Naomi Wanjiru Kibuchi; Simon Mbaria Njeru (Third Party)

(2021) JELR 98610 (CA)

Court of Appeal  •  Civil Application 12 of 2013  •  29 Jan 2021  •  Kenya

Hannah Magondi Okwengu, Agnes Kalekye Murgor, Stephen Gatembu Kairu



[1] Before this Court is a reference brought by the applicants under Rule 55 (b) of the Court of Appeal Rules against the decision of a single Judge, (the late Otieno-Odek, JA) dated 18th July 2013 in which the single Judge declined to exercise his discretion in the applicants favour and dismissed the applicants Notice of Motion dated 13th June, 2012.

[2] The applicants’ motion was brought under Rule 4 of this Court’s Rules, seeking leave to file the Notice and Record of Appeal out of time. The applicants sought to appeal the decision of Sergon, J dated 17th September, 2010 in which the learned Judge dismissed the applicants’ motion seeking to have their suit reinstated following its dismissal for non-attendance.

[3] The application was premised on the ground that the 1st applicant was indisposed and was ailing hence there was a breakdown of communication between her and her advocate leading to the inordinate delay in the filing of the appeal. The 1st applicant, who s…

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