The Court of Appeal in Nyeri has granted Lydia Wambui an extension of time to file an appeal against a High Court judgment delivered on September 26, 2024, in a matrimonial property dispute with her former husband, Stephen Kibere Gathiru.
In a ruling dated July 10, 2025, Justice Ali-Aroni allowed Wambui’s application to file her appeal out of time, finding that her seven-month delay was satisfactorily explained through evidence of ill health, memory loss, and financial difficulties.
The dispute arose from a High Court judgment that ordered Wambui to vacate the matrimonial home and move to a separate portion of the property allocated to her, a directive sought by Gathiru.
Dissatisfied with this outcome, Wambui sought to appeal but missed the statutory deadline to lodge her notice of appeal.
In her application filed on March 20, 2025, Wambui explained that she was unaware of the High Court’s judgment when it was delivered due to her poor health and chronic memory lapses.
“She deposed that judgment was delivered on September 26, 2024; she was unaware of the judgment at the time it was delivered because she was ill and her advocate could not reach her,” read part of the judgment.
She claimed to have been battling severe depression and diabetes, conditions that disrupted her ability to follow up with her lawyers or give timely instructions for an appeal.
Wambui further cited financial constraints, saying she lacked the means to pursue legal action immediately after learning of the ruling. She eventually instructed new counsel, but by then, the time for appeal had lapsed.
The respondent, Gathiru, disputed her claims of illness and memory loss, arguing that the medical documents only showed she was diabetic, with no credible evidence of memory loss.
He also implied that her claims were ‘exaggerated’ and insisted she should comply with the High Court orders and relocate to her allotted portion of the property
The ex-husband insisted that her counsel had been present during the High Court judgment, and therefore, she was deemed aware of its contents.
He also produced a medical report from March 2025 indicating that Wambui was diabetic but not suffering from memory loss or severe mental health issues.
According to him, Wambui’s acknowledgment of the judgment in earlier communications proved she was aware of the ruling well before she applied for extension of time.
Beyond disputing her reasons for delay, Gathiru maintained that the eviction order should be enforced.
He argued that Wambui’s continued occupation of the main home, which had been awarded to him, inconvenienced a tenant occupying part of the property.
“The delay of the execution of the judgment, the suit property currently has a tenant who is likely to be inconvenienced. During the hearing, the applicant appeared to have a sharp memory; the issue of memory loss was never raised,” he stated.
During the hearing, Wambui’s counsel maintained that the delay was neither intentional nor excessive and that her intended appeal raised serious issues regarding the division of matrimonial property.
The Counsel argued that a fair opportunity to challenge the judgment should not be lost due to circumstances beyond her control pointing out that no substantial prejudice would be suffered by Gathiru if the extension was granted.
Justice Ali-Aroni, sitting as a single judge, invoked the discretionary powers granted under Rule 4 of the Court of Appeal rules, which allows the court to extend time in the interests of justice.
In her analysis, the judge referred to the guiding principles outlined in Leo Sila Mutiso v Helen Wangari Mwangi [1999] 2 EA, which require the court to consider the length of the delay, the reason for the delay, the chances of success of the intended appeal, and the degree of prejudice to the other party.
The court found that Wambui had provided a reasonable explanation for the delay, supported by medical records that had not been effectively challenged.
“The respondent has not provided expert evidence to counter the applicant’s claims regarding her health,” Justice Ali-Aroni stated, noting that both parties were senior citizens with differing health conditions.
“What amounts to inordinate delay must be assessed in context, and in this case, the seven-month delay cannot be considered excessive given the reasons presented,” the judge added.
On the issue of prejudice, the court concluded that allowing the extension would not unduly disadvantage Gathiru, as execution of the High Court judgment had not yet been finalised.
The judge also noted that Lydia’s dissatisfaction with being removed from her matrimonial home warranted a fair hearing on appeal.
Consequently, the court granted Lydia leave to file her notice of appeal within seven days of the ruling and directed that the record of appeal be filed within 45 days thereafter.
“The applicant has satisfied the conditions for the exercise of this court’s discretion in her favor,” Justice Ali-Aroni ruled.
The costs of the application, she added, would depend on the
outcome of the main appeal.
