1) Before me is a notice of Motion dated 31/3/2026. In the Application the applicant prays for the following key orders: -
1. That this Honourable court be pleased to set aside the dismissal order made on 20th February, 2026 herein and all consequential orders.
2. That this Honourable court be pleased to reinstate the Appellant’s appeal together with memorandum of appeal dated 22nd April, 2024 for hearing and determination on merit.
3. That this Honourable court be pleased to review; vary and/or set aside the orders issued on 20thFebruay, 2026.
2) The application is based on the grounds on the face of it and supported by the annexed affidavit of Stafford Nyauma, Deputy Chief State Counsel, sworn on 31st March, 2026.
3) In his affidavit, the Deputy Chief State counsel pointed out that on 4 th February, 2026 the court issued directions on how this appeal was to be heard and Appeal was fixed for mention on 20th February 2026 to confirm filing of submissions.
4) The deponent,further, stated that the appellant prepared submissions but before the same could be filed, the appeal came up for mention on 20th February, 2026 and was dismissed for the appellant’s failure to comply with the court’s directions. (Attached copies of the appellant’s draft submission marked SN-4 ).
5) Failure of the applicant/appellant to file submissions and to attend court on 4th February, 2016 and 20th February, 2026 , Counsel averred, was not intentional but was purely out of lack of sufficient notice hence an excusable mistake.
6) The state counsel also averred that delay/and or failure to file submissions with directions was orchestrated by re-organisations and transfer at the office of the Attorney General which resulted to administrative lapse and mistake. The State Counsel, further, averred that the appellant will suffer substantial prejudice if compelled to satisfy the decretal sum which is unbudgeted and the operations of the subject operation herein will be irreparably disrupted.
7) In response, Nelson O. Oisebe who described himself as the respondent filed a replying affidavit sworn on 27th April, 2026. In the affidavit Nelson O. Oisebe averred that the dismissal herein was lawful, regular and proper exercise of Judicial discretion.
8) The deponent also averred that allegation that appellant was not aware of the proceedings is false, misleading and afterthought.
9) Further, Nelson O. Oisebe averred that the explanation relating to administrative re-organization and transfer within the office of Attorney General does not constitute sufficient cause known in law and that the Appellant’s internal challenges should not be visited upon the respondent.
10) In the event that the court grants the orders sought, the respondent urged, the court to deposit the entire decretal sum of Ksh. 10,187,960 and pay the respondent throw away costs.
11) The question for determination is whether the Appellant has demonstrated sufficient reason to set aside the court dismissal order issued on 20/2/2026. The record shows that this mater came for direction in Chambers by her Ladyship Hon. Odera in Chamber on 4/2/2026. The learned made the following direction in the absence of the parties:
1. That this appeal is admitted for hearing before one judge at KISII HC.
2. That this appeal be heard during march 2026 service week.
3. That the Appellant to file and serve submissions within 10 days from today.
4. The respondent to also file submissions within 10 days of receipt of submission from the appellant.
5. The mention/hearing date 5th March, 2026, is hereby taken out. The matter was fixed for mention for compliance on 20th February, 2026.
6. In case of non-compliance the court will proceed to issue such orders as it may deem fit for expediency.
12) When the matter came for direction on 20/2/2026 before Hon. T. A. Odera J, the record indicates both parties were absent and the appeal was dismissed for non-compliance with the court direction. It, however, noted that no affidavit of service was filed to confirm that the applicant was served with notice of the mention on 20/2/2026 and was aware of directions given on 4/2/2022. For this reason, the court sets aside the dismissal and reinstates the Appeal in the interest of fair hearing with no order as to coasts.
13) The court also grants stay of execution pending the hearing and determination of the appeal in public interest, considering that the decretal is substantial and executing the same against the public school herein may occasion disruption to its running of and jeopardize leaning of innocent students.
Dated, Signed and Virtually delivered this 21 st day of September 2026
Hon. P. K. Rotich
JUDGE
1. That this Honourable court be pleased to set aside the dismissal order made on 20th February, 2026 herein and all consequential orders.
2. That this Honourable court be pleased to reinstate the Appellant’s appeal together with memorandum of appeal dated 22nd April, 2024 for hearing and determination on merit.
3. That this Honourable court be pleased to review; vary and/or set aside the orders issued on 20thFebruay, 2026.
2) The application is based on the grounds on the face of it and supported by the annexed affidavit of Stafford Nyauma, Deputy Chief State Counsel, sworn on 31st March, 2026.
3) In his affidavit, the Deputy Chief State counsel pointed out that on 4 th February, 2026 the court issued directions on how this appeal was to be heard and Appeal was fixed for mention on 20th February 2026 to confirm filing of submissions.
4) The deponent,further, stated that the appellant prepared submissions but before the same could be filed, the appeal came up for mention on 20th February, 2026 and was dismissed for the appellant’s failure to comply with the court’s directions. (Attached copies of the appellant’s draft submission marked SN-4 ).
5) Failure of the applicant/appellant to file submissions and to attend court on 4th February, 2016 and 20th February, 2026 , Counsel averred, was not intentional but was purely out of lack of sufficient notice hence an excusable mistake.
6) The state counsel also averred that delay/and or failure to file submissions with directions was orchestrated by re-organisations and transfer at the office of the Attorney General which resulted to administrative lapse and mistake. The State Counsel, further, averred that the appellant will suffer substantial prejudice if compelled to satisfy the decretal sum which is unbudgeted and the operations of the subject operation herein will be irreparably disrupted.
7) In response, Nelson O. Oisebe who described himself as the respondent filed a replying affidavit sworn on 27th April, 2026. In the affidavit Nelson O. Oisebe averred that the dismissal herein was lawful, regular and proper exercise of Judicial discretion.
8) The deponent also averred that allegation that appellant was not aware of the proceedings is false, misleading and afterthought.
9) Further, Nelson O. Oisebe averred that the explanation relating to administrative re-organization and transfer within the office of Attorney General does not constitute sufficient cause known in law and that the Appellant’s internal challenges should not be visited upon the respondent.
10) In the event that the court grants the orders sought, the respondent urged, the court to deposit the entire decretal sum of Ksh. 10,187,960 and pay the respondent throw away costs.
11) The question for determination is whether the Appellant has demonstrated sufficient reason to set aside the court dismissal order issued on 20/2/2026. The record shows that this mater came for direction in Chambers by her Ladyship Hon. Odera in Chamber on 4/2/2026. The learned made the following direction in the absence of the parties:
1. That this appeal is admitted for hearing before one judge at KISII HC.
2. That this appeal be heard during march 2026 service week.
3. That the Appellant to file and serve submissions within 10 days from today.
4. The respondent to also file submissions within 10 days of receipt of submission from the appellant.
5. The mention/hearing date 5th March, 2026, is hereby taken out. The matter was fixed for mention for compliance on 20th February, 2026.
6. In case of non-compliance the court will proceed to issue such orders as it may deem fit for expediency.
12) When the matter came for direction on 20/2/2026 before Hon. T. A. Odera J, the record indicates both parties were absent and the appeal was dismissed for non-compliance with the court direction. It, however, noted that no affidavit of service was filed to confirm that the applicant was served with notice of the mention on 20/2/2026 and was aware of directions given on 4/2/2022. For this reason, the court sets aside the dismissal and reinstates the Appeal in the interest of fair hearing with no order as to coasts.
13) The court also grants stay of execution pending the hearing and determination of the appeal in public interest, considering that the decretal is substantial and executing the same against the public school herein may occasion disruption to its running of and jeopardize leaning of innocent students.
Dated, Signed and Virtually delivered this 21 st day of September 2026
Hon. P. K. Rotich
JUDGE