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)

RULING OF THE COURT

[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…