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Introduction
Before the court is a Notice of Motion filed under order 51 Rule 1, order 12 Rule 1 (c) of the civil procedure Rules, 2010, section 1,1A,3,3A,& 63 (e) of the civil procedure act ( cap 21 laws of Kenya ) and Article 50 (1) of the constitution of Kenya. The application dated 25th November 2024, brought under certificate of urgency by the Appellant, Alfred Mdeizi. The application seeks, inter alia:
1. That this application be certified as urgent and heard ex parte in the first instance;
2. That the Honourable Court be pleased to reinstate the appeal and set aside the proceedings of 12th October 2017, and fix the same for hearing;
3. That there be a stay of proceedings in KISII CMCC No. 335 of 2009 and KISII CMMISC No. 84 of 2024 pending hearing and determination of this application and the appeal;
4. That costs be provided for in the cause.
The application is supported by the grounds on the face of the same and the supporting affidavit sworn by the applicant that;
The application is premised on the grounds that the Applicant was unaware of the mention date of 12.10.2017 because his former advocate failed to notify him of the said date.
The appeal was dismissed when the Applicant failed to prosecute the appeal and a Notice to Show Cause (NTSC) was issued but was not responded to.. The Applicant now seeks to reinstate the appeal and stay further proceedings, arguing that he would suffer grave injustice and be condemned unheard, contrary to the rules of natural justice and Article 50(1) of the Constitution.
Respondent’s reply
The Respondent opposes the application. In their replying affidavit, they assert the following:
a. The appeal was dismissed over eight years ago, and the Applicant has not taken any meaningful steps to have it reinstated until now;
b. The application is frivolous, vexatious, and an abuse of court process;
c. The Applicant is trying to delay justice and frustrate the enforcement of a judgment delivered over a decade ago;t
d. The reasons advanced for reinstatement are not sufficient, and the inordinate delay has not been adequately explained. Re-opening the matter now would amount to unfair prejudice to the Respondent and violate the principle of finality in litigation.
3 Issues for Determination
After reviewing the pleadings, affidavits, and submissions, the following issues emerge:
1. Whether the application for reinstatement of the appeal is merited;
2. Whether the application raises legitimate issues of natural justice that warrant the court’s indulgence;
3. Whether stay of proceedings should be granted;
4.. What orders ought to be made as to costs.
4Analysis and Determination
Whether the Appeal Should Be Reinstated
The law allows reinstatement of a suit or appeal dismissed for want of prosecution or non-attendance where sufficient cause is demonstrated. The Applicant argues that he was unaware of the court date of 12.10.2017 because his previous advocate failed to communicate with him. He states that the dismissal was not intentional and that the failure to act on time should not be visited upon him.
The court takes judicial notice of the principle set out in Belinda Murai & 9 Others v Amos Wainaina [1979] eKLR:
“A mistake is a mistake. It is no less a mistake because it is an unfortunate slip... The door of justice is not closed because a mistake has been made by a lawyer.”
In Utalii Transport Co. Ltd & 3 Others v NIC Bank & Another [2014] eKLR , the court held:
“Litigation is a serious matter that parties must pursue with vigilance. Courts cannot assist those who sleep on their rights.”
Parker v. British Airways Board [1982] 1 WLR 1426: This case involved the loss of a valuable item at an airport. The court held that the claimant''s delay in reporting the loss affected their ability to recover damages.
The appeal was filed in 2011. The Applicant claims that it was dismissed without his knowledge in 2017, and he has only approached the court now, in 2024 — a delay of eleven (11) years since filing and seven (7) years since dismissal.
The explanation given is narrow: the advocate failed to inform him. But it does not explain the years of silence and inaction before and after dismissal.
In IVITA v KYUMBU [1984] KLR 441, Chesoni, J. (as he then was) and was adopted in the case of COMMUNICATIONS COURIER & ANOTHER v TELCOM (K) LTD [1999] eKLR by Lesiit J : that
“The test is whether the delay is prolonged and inexcusable, and, if it is, can justice be done despite such delay. Justice is justice to both the Plaintiff and Defendant; so both parties to the suit must be considered and the position of the judge too, because it is no easy task for the documents, and, or witnesses may be missing and evidence is weak due to the disappearance of human memory resulting from lapse of time. The Defendant must however satisfy the court that he will be prejudiced by the delay or even that the plaintiff will be prejudiced. He must show that justice will not be done in the case due to the prolonged delay on the part of the plaintiff before the court will exercise its discretion in his favour and dismiss the action for want of prosecution. Thus, even if delay is prolonged if the court is satisfied with the plaintiff’s excuse for the delay the action will not be dismissed, but it will be ordered that it be set down for hearing at the earliest available time.”
Though mistakes of counsel should not be visited upon an innocent litigant it is not an open license as litigants also have a duty to follow up on his case to ensure that it is expedited. The Applicant has not showed that he took any action to ensure that the matter proceeded promptly.
The Applicant failed to prosecute the appeal since 2011. The appeal was dismissed on 12.10.2017, and this application has been brought seven years later. . There is no indication that justice can be done at this late stage without occasioning injustice to the Respondent, who has waited over a decade to enjoy the fruits of judgment... Applying that test, the court finds the delay both prolonged and inexcusable. The applicant is guilty of laches and cannot benefit form equitable orders of this court .
Natural Justice and the Right to be Heard
The Applicant has invoked Article 50(1) of the Constitution, which guarantees the right to a fair hearing. He argues that refusing to reinstate the appeal will amount to condemning him unheard, contrary to the rules of natural justice.
The right to be heard is indeed fundamental. However, courts have consistently held that the right to be heard must be exercised reasonably, promptly, and within the framework of procedural rules.
In James Githinji Kirunyu v County Government of Nyeri [2021] eKLR , the court stated:
“The right to be heard cannot be stretched to accommodate indolence. The Constitution is not a refuge for delay and impunity.”
The Applicant was granted a chance to be heard when the appeal was admitted. He was given an opportunity to prosecute it and failed. A Notice to Show Cause was issued, and he went to sleep . He cannot claim that he was denied a hearing when in fact he squandered his chance .Justice delayed is justice denied .The court must weigh the right to be heard and the right of the respondent to enjoy the fruits of his judgment . . The balance tilts in favor of the Respondent..
Conclusion and Disposition
In the upshot , i find that the application dated 25.112.4 is devoid of merit . i proceed to issue the following orders :
1. The Notice of Motion dated 25th November 2024 is dismissed in its entirety;
2. . The Applicant shall bear the costs of this application.
DELIVERED AT VIRTUALLY VIA TEAM PLATFORM ON THIS 2 ND DAY OF OCTOBER, 2025. IN THE PRESENCE OF MR
OREMO FOR RESPONDENT. CA -MR KIPCHIRCHIR
T. A ODERA
JUDGE
2.10.25.
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Introduction
Before the court is a Notice of Motion filed under order 51 Rule 1, order 12 Rule 1 (c) of the civil procedure Rules, 2010, section 1,1A,3,3A,& 63 (e) of the civil procedure act ( cap 21 laws of Kenya ) and Article 50 (1) of the constitution of Kenya. The application dated 25th November 2024, brought under certificate of urgency by the Appellant, Alfred Mdeizi. The application seeks, inter alia:
1. That this application be certified as urgent and heard ex parte in the first instance;
2. That the Honourable Court be pleased to reinstate the appeal and set aside the proceedings of 12th October 2017, and fix the same for hearing;
3. That there be a stay of proceedings in KISII CMCC No. 335 of 2009 and KISII CMMISC No. 84 of 2024 pending hearing and determination of this application and the appeal;
4. That costs be provided for in the cause.
The application is supported by the grounds on the face of the same and the supporting affidavit sworn by the applicant that;
The application is premised on the grounds that the Applicant was unaware of the mention date of 12.10.2017 because his former advocate failed to notify him of the said date.
The appeal was dismissed when the Applicant failed to prosecute the appeal and a Notice to Show Cause (NTSC) was issued but was not responded to.. The Applicant now seeks to reinstate the appeal and stay further proceedings, arguing that he would suffer grave injustice and be condemned unheard, contrary to the rules of natural justice and Article 50(1) of the Constitution.
Respondent’s reply
The Respondent opposes the application. In their replying affidavit, they assert the following:
a. The appeal was dismissed over eight years ago, and the Applicant has not taken any meaningful steps to have it reinstated until now;
b. The application is frivolous, vexatious, and an abuse of court process;
c. The Applicant is trying to delay justice and frustrate the enforcement of a judgment delivered over a decade ago;t
d. The reasons advanced for reinstatement are not sufficient, and the inordinate delay has not been adequately explained. Re-opening the matter now would amount to unfair prejudice to the Respondent and violate the principle of finality in litigation.
3 Issues for Determination
After reviewing the pleadings, affidavits, and submissions, the following issues emerge:
1. Whether the application for reinstatement of the appeal is merited;
2. Whether the application raises legitimate issues of natural justice that warrant the court’s indulgence;
3. Whether stay of proceedings should be granted;
4.. What orders ought to be made as to costs.
4Analysis and Determination
Whether the Appeal Should Be Reinstated
The law allows reinstatement of a suit or appeal dismissed for want of prosecution or non-attendance where sufficient cause is demonstrated. The Applicant argues that he was unaware of the court date of 12.10.2017 because his previous advocate failed to communicate with him. He states that the dismissal was not intentional and that the failure to act on time should not be visited upon him.
The court takes judicial notice of the principle set out in Belinda Murai & 9 Others v Amos Wainaina [1979] eKLR:
“A mistake is a mistake. It is no less a mistake because it is an unfortunate slip... The door of justice is not closed because a mistake has been made by a lawyer.”
In Utalii Transport Co. Ltd & 3 Others v NIC Bank & Another [2014] eKLR , the court held:
“Litigation is a serious matter that parties must pursue with vigilance. Courts cannot assist those who sleep on their rights.”
Parker v. British Airways Board [1982] 1 WLR 1426: This case involved the loss of a valuable item at an airport. The court held that the claimant''s delay in reporting the loss affected their ability to recover damages.
The appeal was filed in 2011. The Applicant claims that it was dismissed without his knowledge in 2017, and he has only approached the court now, in 2024 — a delay of eleven (11) years since filing and seven (7) years since dismissal.
The explanation given is narrow: the advocate failed to inform him. But it does not explain the years of silence and inaction before and after dismissal.
In IVITA v KYUMBU [1984] KLR 441, Chesoni, J. (as he then was) and was adopted in the case of COMMUNICATIONS COURIER & ANOTHER v TELCOM (K) LTD [1999] eKLR by Lesiit J : that
“The test is whether the delay is prolonged and inexcusable, and, if it is, can justice be done despite such delay. Justice is justice to both the Plaintiff and Defendant; so both parties to the suit must be considered and the position of the judge too, because it is no easy task for the documents, and, or witnesses may be missing and evidence is weak due to the disappearance of human memory resulting from lapse of time. The Defendant must however satisfy the court that he will be prejudiced by the delay or even that the plaintiff will be prejudiced. He must show that justice will not be done in the case due to the prolonged delay on the part of the plaintiff before the court will exercise its discretion in his favour and dismiss the action for want of prosecution. Thus, even if delay is prolonged if the court is satisfied with the plaintiff’s excuse for the delay the action will not be dismissed, but it will be ordered that it be set down for hearing at the earliest available time.”
Though mistakes of counsel should not be visited upon an innocent litigant it is not an open license as litigants also have a duty to follow up on his case to ensure that it is expedited. The Applicant has not showed that he took any action to ensure that the matter proceeded promptly.
The Applicant failed to prosecute the appeal since 2011. The appeal was dismissed on 12.10.2017, and this application has been brought seven years later. . There is no indication that justice can be done at this late stage without occasioning injustice to the Respondent, who has waited over a decade to enjoy the fruits of judgment... Applying that test, the court finds the delay both prolonged and inexcusable. The applicant is guilty of laches and cannot benefit form equitable orders of this court .
Natural Justice and the Right to be Heard
The Applicant has invoked Article 50(1) of the Constitution, which guarantees the right to a fair hearing. He argues that refusing to reinstate the appeal will amount to condemning him unheard, contrary to the rules of natural justice.
The right to be heard is indeed fundamental. However, courts have consistently held that the right to be heard must be exercised reasonably, promptly, and within the framework of procedural rules.
In James Githinji Kirunyu v County Government of Nyeri [2021] eKLR , the court stated:
“The right to be heard cannot be stretched to accommodate indolence. The Constitution is not a refuge for delay and impunity.”
The Applicant was granted a chance to be heard when the appeal was admitted. He was given an opportunity to prosecute it and failed. A Notice to Show Cause was issued, and he went to sleep . He cannot claim that he was denied a hearing when in fact he squandered his chance .Justice delayed is justice denied .The court must weigh the right to be heard and the right of the respondent to enjoy the fruits of his judgment . . The balance tilts in favor of the Respondent..
Conclusion and Disposition
In the upshot , i find that the application dated 25.112.4 is devoid of merit . i proceed to issue the following orders :
1. The Notice of Motion dated 25th November 2024 is dismissed in its entirety;
2. . The Applicant shall bear the costs of this application.
DELIVERED AT VIRTUALLY VIA TEAM PLATFORM ON THIS 2 ND DAY OF OCTOBER, 2025. IN THE PRESENCE OF MR
OREMO FOR RESPONDENT. CA -MR KIPCHIRCHIR
T. A ODERA
JUDGE
2.10.25.
'