REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
HIGH COURT CIVIL APPEAL CASE NO. E074 OF 2024
DAVID MAINA NDIRANGU
ESTHER NYAMBURA MAINA (Suing as the Legal representatives and administrator to the estate of the late
Moses Githinji Maina (Deceased)……….………….APPELLANTS
VERSUS
THE MONARCH INSURANCE CO. LTD …………..RESPONDENT
JUDGEMENT
1. Before this Court is the Memorandum of Appeal dated 8 th November 2024 by which the Appellants DAVID MAINA NDIRANGU and ESTHER NYAMBURA MAINA ( suing as the legal representatives and administrator to the estate of the late Moses Githinji Maina (Deceased) seek the following orders:-
(a) THAT the appeal be allowed.
(b) THAT the orders dismissing the Application dated 12 th
July 2024 of the trial Magistrate be set aside and
substituted with an order allowing the prayers sought
therein.
(c) THAT costs be provided for.”
2. The Respondent MONARCH INSURANCE COMPANY LIMITED opposed the appeal. The matter was canvassed by way of written submissions. The Appellants filed the written submissions dated 17 th February 2026 , whilst the Respondents relied upon their written submissions dated 2 nd December 2025 .
BACKGROUND
3. The Applicants had filed in the magistrates court a Civil Suit No. 285 of 2018 where vide a Plaint dated 20 th March 2018 they sought declaratory orders as against the Respondent Insurance Company. On 13 th March 2024 the suit was dismissed for want of prosecution.
4. The Appellants then filed in the Lower Court a Notice of Motion dated 12 th July 2024 seeking the following orders:-
“1. THAT the honourable court be pleased to set aside the orders dismissing the suit for want of prosecution on 13/3/2024 and reinstate the suit.
2. THAT costs of this application be in the cause.”
5. That application was duly heard in the Lower court and vide the Ruling delivered on 9 th October 2024 Hon. M. M. GITUMA, Senior Resident Magistrate dismissed the application seeking reinstatement of the suit.
6. Being aggrieved by this decision the Appellants filed the present appeal which is premised upon the following grounds:-
“1. The learned magistrate failed in law and fact in dismissing the Application dated 12 th July 2024.
2. The learned trial magistrate erred in law and fact by failing to consider the grounds of the application and ended up with a wrong finding.
3. The learned trial Magistrate erred in law and fact by failing to consider that the application for reinstatement of suit was filed without unreasonable delay and ended up with a wrong finding.
4. That the entire ruling and order is flawed and is
against the weight of evidence and against the
rules of natural justice.
5. The learned magistrate failed to consider the stage at which the matter was thereby denied the appellants fruits of their judgment by dismissing the suit.
6. The mistake of an Advocate should not be meted upon the clients who deserve the fruits of their judgment.”
ANALYSIS AND DETERMINATION
7. I have considered the appeal before this court, the Record of appeal as well as the written submissions filed by both parties.
8. This is a first appeal and in this regard I take cognizance of the holding in Imanyara & 2 others v Attorney General [2016] KECA 557 (KLR) in which the Court of Appeal stated as follows:-
This being a first appeal it is trite law, that this Court is not bound necessarily to accept the findings of fact by the court below and that an appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal is are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. See Selle and Another v Associated Motor Boat Company Limited and others [1968] EA 123 and Williamson Diamonds Ltd. V Brown [1970] E.A.L
As we discharge our mandate of evaluating the evidence placed before the High Court, we keep in mind what the predecessor of this Court said in Peters -vs- Sunday Post Ltd [1958] EA 424 . In its own words:-
“Whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide……..”
9. In support of their application for reinstatement of the suit the
Appellants had averred that the failure of their advocate to attend court was not deliberate but was caused by the fact that said advocate was attending to a personal emergency and by the time he arrived in court the matter had already been dealt with.
10. The Appellants stated that they were ready and willing to prosecute their suit to its logical conclusion. They had prayed that the suit be reinstated for determination on its merits.
11. The only issue for determination in this appeal is whether the dismissal of the suit ought to be reversed.
12. Order 12 Rule 7 of the Civil Procedure Rules 2010 empowers a court to set aside orders dismissing a suit on such terms that may be just. It must be noted that the decision on whether or not to reinstate a suit is discretionary and that discretion will be exercised based on the peculiar facts of each case.
13. The suit which had been filed by the Appellants was dismissed for want of prosecution due to the delay by the Appellants in prosecuting their suit. The justification behind the dismissal of suits for want of prosecution is that litigation ought to be expedited and concluded in good time. There is no point in filing a suit in court and then leaving it parked in the court unprosecuted and hanging like a sword of damocles over the head of the other party.
14. The courts in Kenya are often blamed for huge backlog in cases and one cause of such backlog are cases which are filed by litigants and which are then ignored and left unprosecuted for several years. This only serves to clog up the courts and further leads to a loss of public trust in the Judiciary.
15. In the case of IVITA -VS- KYUMBU [1984] KLR 441 the Hon Justice Chesoni (Deceased) set out the considerations courts should put in mind in deciding whether or not to dismiss a suit for want of prosecution as follows:-
“The test applied by the courts in an application for the dismissal of a suit for want of prosecution is whether the delay is prolonged and in excusable and if it is, whether justice can be done despite the delay. Thus, even if the delay is prolonged, if the court is satisfied with the plaintiff’s excuse for the delay and that Justice can still be done to the parties, the action will not be dismissed but it will be ordered that it be set down for hearing at the earliest available time. It is a matter in the discretion of the Court.”
16. The dismissal of a suit is deemed to be a draconian measure and in deciding whether or not to reinstate a dismissed suit the court ought to take into account Sections 1, 1A and 3A of the Civil Procedure Act Cap 21, Laws of Kenya as well as Article 50 of the Constitution of Kenya 2010 which guarantees for the right to be heard.
17. I have carefully perused the record of how the suit proceeded after it was filed. The was aptly captured by the trial magistrate at Page 2 , paragraph 3 of her judgement.
18. In this case, the suit instituted on 4 th October 2018. The trial court dealt with interlocutory applications all through up until October 2023 when Mr. Muthee Plaintiffs was appointed. Previously, a Mr. Kariuki was on record. Upon appointment, Counsel took a mention date of 22 nd November 2023 at the registry. As the record reveals that on 22 nd November 2023, counsel indicated that he had failed to file an affidavit of service upon serving the Defendant with the mention notice. The trial court indulged counsel and gave a further mention date of 13 th December 2023. Again, on 13 th December 2023, Counsel gave the same reason of failing to file the affidavit of service. The court gave a date of 24 th January 2024. On this date, Counsel had not served a mention notice upon the Defendant. The court issued a date of 21 st February 2024. On the said date, Counsel intimated the had filed an application dated 8 th September 2023. However, the court noted that the application was not on record. The court then gave a date of 13 th March 2024 but neither the plaintiffs nor their advocate was in court and neither were the Defendants present. At that point the court dismissed the suit for want of prosecution.
19. I do agree with the observation of the trial court that if as it is claimed the Advocate appeared in court on 13 th March 2024 only to find that the matter had already been dealt with then he would have been expected to immediately file the application for reinstatement. As it is the application was not filed until four (4) months had elapsed. This belies the claim that non-appearance was inadvertent.
20. The Appellants appeared to blame their advocate for the dismissal of the suit. However it must be remembered that a suit belongs to the litigant and not to the advocate. As such the duty is placed on the
litigant to follow up and ensure the progression of his/her suit.
21. In SAVINGS & LOAN (K) LTD -VS- SUSAN WANJIRU MURITU [2002] eKLR , the court held that a litigant must pursue his or her case. Similarly in RAJESH RUGHANI -VS- FIFTY INVESTMENTS LTT & Another [2016] eKLR the court observed that it is insufficient to blame previous counsel on record without an explanation as to the action taken by the litigant himself to show that he did not condone or collude in the delay.
22. All in all sufficient reason must be given by a litigant for the court to exercise its discretion and reinstate a suit. Article 159 of the Constitution is not a panacea for all ills.
23. In MOBILE KITALE SERVICE STATION -VS- MOBILE OIL KENYA
LIMITED & Another [2004] eKLR , Hon. Justice Warsame
[as he then was] stated as follows:-
“I must say that the Courts are under a lot of pressure from backlogs and increased litigation, therefore it is in the interest of justice that litigation must be conducted expeditiously and efficiently so that injustice caused by delay would be a thing of the past. Justice would be better served if we dispose matters expeditiously. Therefore I have no doubt the delay in the expeditious prosecution of this suit is due to the laxity, indifference and/or negligence of the plaintiff. That negligence indifference and/or laxity should not and cannot be placed at the doorstep of the defendant. The consequences must be placed on their [plaintiffs] shoulders.”
24. Similarly in this case I find that the delay in prosecuting the suit can only be blamed on the appellants and their advocate. I am not persuaded that any sufficient reason has been demonstrated to warrant reinstatement of the suit. I am in full agreement with the
findings of the trial court.
25. Finally this appeal fails and is dismissed in its entirety. Costs will be met by the Appellants.
Dated in Nyeri this 22 nd day of May 2026.
………………………..
MAUREEN A. ODERO
JUDGE
High Court Civil Appeal Case No. E074 of 2024 JUDGEMENT Page 1 of 11
IN THE HIGH COURT OF KENYA
AT NYERI
HIGH COURT CIVIL APPEAL CASE NO. E074 OF 2024
DAVID MAINA NDIRANGU
ESTHER NYAMBURA MAINA (Suing as the Legal representatives and administrator to the estate of the late
Moses Githinji Maina (Deceased)……….………….APPELLANTS
VERSUS
THE MONARCH INSURANCE CO. LTD …………..RESPONDENT
JUDGEMENT
1. Before this Court is the Memorandum of Appeal dated 8 th November 2024 by which the Appellants DAVID MAINA NDIRANGU and ESTHER NYAMBURA MAINA ( suing as the legal representatives and administrator to the estate of the late Moses Githinji Maina (Deceased) seek the following orders:-
(a) THAT the appeal be allowed.
(b) THAT the orders dismissing the Application dated 12 th
July 2024 of the trial Magistrate be set aside and
substituted with an order allowing the prayers sought
therein.
(c) THAT costs be provided for.”
2. The Respondent MONARCH INSURANCE COMPANY LIMITED opposed the appeal. The matter was canvassed by way of written submissions. The Appellants filed the written submissions dated 17 th February 2026 , whilst the Respondents relied upon their written submissions dated 2 nd December 2025 .
BACKGROUND
3. The Applicants had filed in the magistrates court a Civil Suit No. 285 of 2018 where vide a Plaint dated 20 th March 2018 they sought declaratory orders as against the Respondent Insurance Company. On 13 th March 2024 the suit was dismissed for want of prosecution.
4. The Appellants then filed in the Lower Court a Notice of Motion dated 12 th July 2024 seeking the following orders:-
“1. THAT the honourable court be pleased to set aside the orders dismissing the suit for want of prosecution on 13/3/2024 and reinstate the suit.
2. THAT costs of this application be in the cause.”
5. That application was duly heard in the Lower court and vide the Ruling delivered on 9 th October 2024 Hon. M. M. GITUMA, Senior Resident Magistrate dismissed the application seeking reinstatement of the suit.
6. Being aggrieved by this decision the Appellants filed the present appeal which is premised upon the following grounds:-
“1. The learned magistrate failed in law and fact in dismissing the Application dated 12 th July 2024.
2. The learned trial magistrate erred in law and fact by failing to consider the grounds of the application and ended up with a wrong finding.
3. The learned trial Magistrate erred in law and fact by failing to consider that the application for reinstatement of suit was filed without unreasonable delay and ended up with a wrong finding.
4. That the entire ruling and order is flawed and is
against the weight of evidence and against the
rules of natural justice.
5. The learned magistrate failed to consider the stage at which the matter was thereby denied the appellants fruits of their judgment by dismissing the suit.
6. The mistake of an Advocate should not be meted upon the clients who deserve the fruits of their judgment.”
ANALYSIS AND DETERMINATION
7. I have considered the appeal before this court, the Record of appeal as well as the written submissions filed by both parties.
8. This is a first appeal and in this regard I take cognizance of the holding in Imanyara & 2 others v Attorney General [2016] KECA 557 (KLR) in which the Court of Appeal stated as follows:-
This being a first appeal it is trite law, that this Court is not bound necessarily to accept the findings of fact by the court below and that an appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal is are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. See Selle and Another v Associated Motor Boat Company Limited and others [1968] EA 123 and Williamson Diamonds Ltd. V Brown [1970] E.A.L
As we discharge our mandate of evaluating the evidence placed before the High Court, we keep in mind what the predecessor of this Court said in Peters -vs- Sunday Post Ltd [1958] EA 424 . In its own words:-
“Whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide……..”
9. In support of their application for reinstatement of the suit the
Appellants had averred that the failure of their advocate to attend court was not deliberate but was caused by the fact that said advocate was attending to a personal emergency and by the time he arrived in court the matter had already been dealt with.
10. The Appellants stated that they were ready and willing to prosecute their suit to its logical conclusion. They had prayed that the suit be reinstated for determination on its merits.
11. The only issue for determination in this appeal is whether the dismissal of the suit ought to be reversed.
12. Order 12 Rule 7 of the Civil Procedure Rules 2010 empowers a court to set aside orders dismissing a suit on such terms that may be just. It must be noted that the decision on whether or not to reinstate a suit is discretionary and that discretion will be exercised based on the peculiar facts of each case.
13. The suit which had been filed by the Appellants was dismissed for want of prosecution due to the delay by the Appellants in prosecuting their suit. The justification behind the dismissal of suits for want of prosecution is that litigation ought to be expedited and concluded in good time. There is no point in filing a suit in court and then leaving it parked in the court unprosecuted and hanging like a sword of damocles over the head of the other party.
14. The courts in Kenya are often blamed for huge backlog in cases and one cause of such backlog are cases which are filed by litigants and which are then ignored and left unprosecuted for several years. This only serves to clog up the courts and further leads to a loss of public trust in the Judiciary.
15. In the case of IVITA -VS- KYUMBU [1984] KLR 441 the Hon Justice Chesoni (Deceased) set out the considerations courts should put in mind in deciding whether or not to dismiss a suit for want of prosecution as follows:-
“The test applied by the courts in an application for the dismissal of a suit for want of prosecution is whether the delay is prolonged and in excusable and if it is, whether justice can be done despite the delay. Thus, even if the delay is prolonged, if the court is satisfied with the plaintiff’s excuse for the delay and that Justice can still be done to the parties, the action will not be dismissed but it will be ordered that it be set down for hearing at the earliest available time. It is a matter in the discretion of the Court.”
16. The dismissal of a suit is deemed to be a draconian measure and in deciding whether or not to reinstate a dismissed suit the court ought to take into account Sections 1, 1A and 3A of the Civil Procedure Act Cap 21, Laws of Kenya as well as Article 50 of the Constitution of Kenya 2010 which guarantees for the right to be heard.
17. I have carefully perused the record of how the suit proceeded after it was filed. The was aptly captured by the trial magistrate at Page 2 , paragraph 3 of her judgement.
18. In this case, the suit instituted on 4 th October 2018. The trial court dealt with interlocutory applications all through up until October 2023 when Mr. Muthee Plaintiffs was appointed. Previously, a Mr. Kariuki was on record. Upon appointment, Counsel took a mention date of 22 nd November 2023 at the registry. As the record reveals that on 22 nd November 2023, counsel indicated that he had failed to file an affidavit of service upon serving the Defendant with the mention notice. The trial court indulged counsel and gave a further mention date of 13 th December 2023. Again, on 13 th December 2023, Counsel gave the same reason of failing to file the affidavit of service. The court gave a date of 24 th January 2024. On this date, Counsel had not served a mention notice upon the Defendant. The court issued a date of 21 st February 2024. On the said date, Counsel intimated the had filed an application dated 8 th September 2023. However, the court noted that the application was not on record. The court then gave a date of 13 th March 2024 but neither the plaintiffs nor their advocate was in court and neither were the Defendants present. At that point the court dismissed the suit for want of prosecution.
19. I do agree with the observation of the trial court that if as it is claimed the Advocate appeared in court on 13 th March 2024 only to find that the matter had already been dealt with then he would have been expected to immediately file the application for reinstatement. As it is the application was not filed until four (4) months had elapsed. This belies the claim that non-appearance was inadvertent.
20. The Appellants appeared to blame their advocate for the dismissal of the suit. However it must be remembered that a suit belongs to the litigant and not to the advocate. As such the duty is placed on the
litigant to follow up and ensure the progression of his/her suit.
21. In SAVINGS & LOAN (K) LTD -VS- SUSAN WANJIRU MURITU [2002] eKLR , the court held that a litigant must pursue his or her case. Similarly in RAJESH RUGHANI -VS- FIFTY INVESTMENTS LTT & Another [2016] eKLR the court observed that it is insufficient to blame previous counsel on record without an explanation as to the action taken by the litigant himself to show that he did not condone or collude in the delay.
22. All in all sufficient reason must be given by a litigant for the court to exercise its discretion and reinstate a suit. Article 159 of the Constitution is not a panacea for all ills.
23. In MOBILE KITALE SERVICE STATION -VS- MOBILE OIL KENYA
LIMITED & Another [2004] eKLR , Hon. Justice Warsame
[as he then was] stated as follows:-
“I must say that the Courts are under a lot of pressure from backlogs and increased litigation, therefore it is in the interest of justice that litigation must be conducted expeditiously and efficiently so that injustice caused by delay would be a thing of the past. Justice would be better served if we dispose matters expeditiously. Therefore I have no doubt the delay in the expeditious prosecution of this suit is due to the laxity, indifference and/or negligence of the plaintiff. That negligence indifference and/or laxity should not and cannot be placed at the doorstep of the defendant. The consequences must be placed on their [plaintiffs] shoulders.”
24. Similarly in this case I find that the delay in prosecuting the suit can only be blamed on the appellants and their advocate. I am not persuaded that any sufficient reason has been demonstrated to warrant reinstatement of the suit. I am in full agreement with the
findings of the trial court.
25. Finally this appeal fails and is dismissed in its entirety. Costs will be met by the Appellants.
Dated in Nyeri this 22 nd day of May 2026.
………………………..
MAUREEN A. ODERO
JUDGE
High Court Civil Appeal Case No. E074 of 2024 JUDGEMENT Page 1 of 11