A. INTRODUCTION
1. This is a first appeal from the Ruling of the Senior Principal Magistrate's Court at Webuye (Hon. V. Yator, Principal Magistrate) delivered on 14th February 2024, dismissing the Appellant's Notice of Motion dated 19th June 2023 by which he sought reinstatement of Webuye Civil Suit No. 109 of 2014, a suit that had earlier been dismissed for want of prosecution on 10th March 2021.
2. The appeal is opposed by the 1st and 3rd Respondents, who filed submissions supporting the impugned Ruling. The 2nd Respondent did not participate in these proceedings, either at the trial or on appeal, and no order is made in respect of him beyond what is necessary to dispose of the appeal as between the active parties.
B. BACKGROUND
3. The dispute has its origin in a road traffic accident that occurred on 29th June 2011 along the Eldoret–Turbo road, in which the Appellant, then a fare-paying passenger in motor vehicle registration number KAV 382R (a Nissan matatu), sustained injuries when the vehicle in which he was travelling was involved in a collision with motor vehicle registration number KAV 691U (a Scania prime mover). The Appellant sued the registered owner of the prime mover, its driver and its insurer/agent as the 1st, 2nd and 3rd Defendants (now the 1st, 2nd and 3rd Respondents) in Webuye Civil Suit No. 109 of 2014, claiming special and general damages for negligence.
4. The suit was one of a series of related claims arising from the same accident, the lead or 'test' suit being Webuye SPMCC No. 103 of 2014, George Barasa Sifuna v Tigaad Transport Company Limited & 2 Others. By consent recorded on 26th January 2016, the present suit was stayed pending the outcome of the test suit. Judgment in the test suit was delivered on 7th August 2018.
5. The matter thereafter proceeded, in stages, as follows:
(a) On 14th May 2019, the Appellant (PW1) commenced his testimony, adopting his witness statement and producing his documents. Under cross-examination it emerged that the particulars of injury pleaded in the original Plaint were at variance with the medical evidence on record. Hearing was adjourned to 29th October 2019 at the Appellant's request, with costs to the Respondents.
(b) On 29th October 2019, the Appellant applied by Notice of Motion dated 3rd June 2019 to amend the Plaint to align the particulars of injury with the medical evidence. The 1st and 3rd Respondents opposed the application as an afterthought calculated to plug the evidential gaps exposed in cross-examination. Ruling was reserved.
(c) On 26th November 2019, the trial Court (Hon. N.N. Barasa, SRM) allowed the amendment, directing that the Amended Plaint be filed and served within 14 days, the Amended Defence within a further 14 days, and that the suit be mentioned within 21 days of service of the defence to confirm a hearing date.
6. No further step was taken in the matter after 26th November 2019. On 10th March 2021, in the absence of both parties and their Advocates, the trial Court (Hon. M. Munyekenye, SPM) recorded that the parties had been served, that they had not attended Court, and dismissed the suit for want of prosecution under Order 17 of the Civil Procedure Rules. It is common ground that this was the second occasion on which the suit suffered such a dismissal; it had previously been dismissed for want of prosecution on 5th September 2017 and was reinstated by consent, following which the matter resumed and proceeded to the stage described above.
7. The Appellant's case, as deposed to in the Supporting Affidavit sworn on 19th June 2023, is that his Advocate only discovered the dismissal on 16th June 2023 upon checking the Court's online portal, and that neither he nor his Advocate had been served with a notice to show cause prior to the dismissal of 10th March 2021. He attributed the intervening inactivity substantially to the Covid-19 pandemic. He accordingly filed the Notice of Motion dated 19th June 2023 under Order 12 Rule 7 and Order 51 Rule 1 of the Civil Procedure Rules, seeking reinstatement of the suit.
8. The application was opposed by the 1st and 3rd Respondents by a Replying Affidavit sworn by Phabian W. Khaemba on 24th July 2023, in which it was deposed that a notice to show cause had in fact been issued by the Court on 11th January 2021 and served on the parties, requiring their attendance on 10th March 2021; that the Appellant ignored the notice; that the Covid-19 pandemic did not disable the operation of the Courts, whose registries remained open throughout; and that the suit had already been dismissed once before, in 2017, such that the Appellant ought to have been more vigilant.
9. On 9th November 2023, the trial Court directed that the application be canvassed by way of written submissions. Both sides complied, and on 14th February 2024, the trial Court delivered the Ruling now under appeal.
C. THE IMPUGNED RULING
10. In her Ruling, the learned trial Magistrate correctly identified the sole question before her as being whether the suit, dismissed for want of prosecution on 10th March 2021, ought to be reinstated. She directed herself to sections 1A, 1B and 3A of the Civil Procedure Act on the overriding objective and the inherent power of the Court, and to the authorities of Ivita v Kyumbu [1984] KLR 441, Jim Rodgers Gitonga Njeru v Al Husnain Motors Limited & 2 Others [2018] eKLR, and Shah v Mbogo & Another [1967] EA 116 on the principles governing dismissal and reinstatement of suits for want of prosecution.
11. Having considered the Notice of Motion, the Supporting Affidavit and the Replying Affidavit, the learned Magistrate held that she was 'not entirely convinced by the arguments put forward by the Plaintiff to explain his non-attendance in Court as and when required, and generally his failure to have the matter prosecuted since 2018 when judgment on the test suit was delivered'. She found that there was no justification for a litigant with a pending suit to remain inactive for some five years, from 2018 to 2023, 'without caring about the position of his case notwithstanding whether notice to dismiss was served or not'. On that basis, she found the delay inordinate, declined to exercise her discretion in the Appellant's favour, and dismissed the application with costs to the Respondents.
D. THE APPEAL
12. Aggrieved, the Appellant filed the present appeal on the following grounds, as set out in the Memorandum of Appeal:
(i) that the learned Magistrate erred in law and in fact by failing to consider material facts and the totality of the record, thereby arriving at a wrong decision;
(ii) that the learned Magistrate erred in law and in fact by erroneously exercising her discretion;
(iii) that the learned Magistrate erred in law and in fact by condemning the Appellant unheard; and
(iv) that the decision is wrong in law and in principle.
13. The Appellant seeks an order allowing the appeal, setting aside the Ruling of 14th February 2024, and costs of the appeal.
E. THE RIVAL SUBMISSIONS
(i) The Appellant's Submissions
14. Although the Memorandum of Appeal raises four grounds, the Appellant's written submissions condense the appeal into a single question: whether the learned Magistrate erred in law and in fact by failing to consider material facts and the totality of the record, thereby arriving at a wrong decision. In elaboration, the Appellant makes four principal points.
15. First, that the dismissal of 10th March 2021 was procedurally unfair because the Appellant was never invited to show cause why the suit should not be dismissed, that no proof of the alleged notice to show cause or of its service was ever placed before the trial Court despite the point having been squarely raised in the Supporting Affidavit, and that a dismissal in such circumstances offends the right to a fair hearing and the rules of natural justice, relying on M.K. v M.W.M. & Another [2015] eKLR, Onyango v Attorney General (1986–1989) EA 456, and Patriotic Guards Ltd v James Kipchirchir Sambu, Civil Appeal No. 20 of 2016.
16. Second, that the suit had not, as the trial Magistrate appeared to suggest, lain entirely dormant since 2018; rather, it had proceeded actively through several material steps between August 2018 and November 2019 — resumption of hearing, part-testimony of PW1, the application to amend, and the ruling allowing the amendment — with the ensuing inactivity attributable to the Covid-19 pandemic.
17. Third, that the Respondents would suffer no prejudice from reinstatement that could not be adequately compensated in costs, since what remained outstanding was merely the conclusion of a partly heard trial, relying on Tana & Athi Rivers Development Authority v Jeremiah Kimigho Mwakio & 3 Others [2015] eKLR.
18. Fourth, that any default was that of Counsel rather than of the litigant personally, and that the settled principle that the mistakes of Counsel ought not ordinarily to be visited upon an innocent litigant, as applied by the Court of Appeal in the Tana case and in James Kanyita Nderitu & Another v Marios Philotas Ghikas & Another, Civil Appeal No. 6 of 2015 (Mombasa), should have weighed in the Appellant's favour.
(ii) The 1st and 3rd Respondents' Submissions
19. The 1st and 3rd Respondents support the Ruling in its entirety. They submit that the record itself refutes the allegation that the trial Magistrate ignored material facts, since the Ruling expressly records that she considered both the Supporting Affidavit and the Replying Affidavit before reaching her decision.
20. On the merits, the Respondents emphasise that whether to reinstate a suit dismissed for want of prosecution is a matter of judicial discretion, and that an appellate Court will not interfere with the exercise of that discretion save on the well-established grounds identified in Mbogo & Another v Shah [1968] EA 93, namely misdirection on the law, misapprehension of the facts, taking into account irrelevant matters or omitting relevant ones, or a decision that is plainly wrong. They rely additionally on Karani v Cheburer [2025] KEHC 406 (KLR), Daqare Transporters Limited v Chevron Kenya Limited [2020] KECA 309 (KLR), Olumbe v Obanyi, Civil Appeal E014 of 2024, [2025] KEHC 5386 (KLR), and Bilha Ngonyo Isaac v Kembu Farm & Another [2018] eKLR, for the proposition that Courts will not readily reinstate suits abandoned through inordinate and unexplained delay, particularly where the litigant has previously suffered a like dismissal and has not learnt from the experience.
21. The Respondents contend that between 7th August 2018, when judgment in the test suit was delivered, and 19th June 2023, when the reinstatement application was filed, close to five years elapsed; that the Covid-19 pandemic cannot account for the whole of that period, since the Courts and their registries continued to operate, albeit with adjustments, throughout the pandemic; that this was in any event the second time the same suit had been dismissed for want of prosecution, the first having been in September 2017; and that the Appellant, as a litigant who had already once experienced the consequences of failing to prosecute his case, ought to have been more vigilant thereafter. On prejudice, they submit that the 1st Respondent has carried the burden of this litigation, arising from an accident that occurred in 2011 and a suit filed in 2014, for well over a decade without resolution, and that the law favours finality.
F. DUTY OF THE FIRST APPELLATE COURT AND THE ISSUES FOR DETERMINATION
22. Both parties correctly identify the two governing principles. As a first appellate Court, this Court is under a duty to re-evaluate, re-assess and re-analyse the evidence and the record before the trial Court, and to reach its own conclusions on it, bearing in mind that it neither saw nor heard the witnesses and should therefore make due allowance in that respect (Selle v Associated Motor Boat Co. [1968] EA 123; Abok James Odera t/a A.J. Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR).
23. At the same time, the decision under appeal was a discretionary one. It is trite that where a Court is called upon to exercise a discretion, it must do so judicially, guided by legal principle and the circumstances of the case, and not according to private whim (Mbogo & Another v Shah [1968] EA 93). An appellate Court will not lightly interfere with the exercise of such discretion by a trial Court merely because, sitting in the trial Court's place, it might have arrived at a different conclusion. Interference is warranted only where it is demonstrated that the trial Court misdirected itself on the law, misapprehended the facts, took into account matters it ought not to have considered, omitted to take into account matters it ought to have considered, or that the resulting decision was plainly wrong.
24. Reading the grounds of appeal together with the submissions filed, this Court distills the following issues for determination:
(a) whether the process leading to the dismissal of the suit on 10th March 2021 was attended by a breach of the rules of natural justice such as to vitiate the trial Court's subsequent refusal to reinstate it;
(b) whether the delay between 7th August 2018 (or, alternatively, 26th November 2019) and 19th June 2023 was, on the record, inordinate and inexcusable;
(c) whether the Respondents would suffer prejudice from reinstatement that could not be met by an order for costs;
(d) whether the default, if any, was that of the Appellant's counsel rather than the Appellant, and what weight that circumstance should bear; and
(e) whether, on the totality of the foregoing, the learned trial Magistrate exercised her discretion judicially, such that this Court should decline to interfere with it.
G. ANALYSIS AND DETERMINATION
(i) The alleged breach of natural justice
25. The Appellant's complaint that he was condemned unheard when the suit was dismissed on 10th March 2021 without proof of service of a notice to show cause is a serious one, natural justice being foundational to the judicial process (see M.K. v M.W.M. & Another [2015] eKLR; Onyango v Attorney General (1986–1989) EA 456; Mbaki & Others v Macharia & Another [2005] 2 EA 206). The Court has scrutinised the record with this complaint in mind.
26. On the record of proceedings, the entry of 10th March 2021 reads simply: 'The parties were served. They have not come to Court. This matter is thus dismissed under Order 17 Civil Procedure Code for want of prosecution.' Neither an affidavit of service nor a return of service in respect of that specific hearing date appears in the record placed before this Court, notwithstanding that the point was squarely raised in paragraph 12 of the Appellant's Supporting Affidavit. The Respondents, for their part, assert in the Replying Affidavit of Phabian Khaemba that a notice to show cause was issued by the Court on 11th January 2021 and served on the parties — an assertion equally unsupported, on this record, by any exhibited proof of service.
27. This Court does not consider it necessary, or indeed proper on a record such as this, to resolve that factual conflict in the abstract, because the complaint, properly understood, goes to the propriety of the original dismissal of 10th March 2021 rather than to the propriety of the Ruling of 14th February 2024 that is actually the subject of this appeal. The Appellant did not appeal the order of dismissal itself; instead, he elected to move the trial Court by way of an application for reinstatement under Order 12 Rule 7 of the Civil Procedure Rules. An application for reinstatement necessarily proceeds on the premise that the underlying dismissal, whatever its shortcomings, stands unless and until set aside, and invites the Court to exercise a curative discretion having regard to the reasons for the default, the length of delay, and the balance of prejudice — it is not, without more, the correct procedural vehicle for establishing that the dismissal was a nullity for want of service, which is ordinarily a distinct ground calling for a claim that the order be set aside as of right. I make comparison with the case of James Kanyita Nderitu & Another v Marios Philotas Ghikas & Another, Civil Appeal No. 6 of 2015, on the different consequences that follow from an irregular, as opposed to a regular, default order.
28. This distinction is not a mere technicality; it is a route the Appellant could have taken but did not, and its absence from the record confirms that the trial Court cannot be faulted for failing to determine a case that was never put to it. Where a default order is truly irregular for want of service of the process by which the party ought to have been notified of the hearing that led to it, the appropriate and long-settled course is an application to set aside that order as a nullity, to be granted ex debito justitiae — as of right, without the Applicant needing to demonstrate an excusable reason for the default or a triable case, because the very premise of the application is that the Court's process could not properly have run against a party who was never told of it (see the discussion of irregular default judgments in James Kanyita Nderitu & Another v Marios Philotas Ghikas & Another, Civil Appeal No. 6 of 2015, and the authorities cited therein, including Kabutha v Mucheru, HCCC No. 82 of 2002, and Frigonken Ltd v Value Pak Food Ltd, HCCC No. 424 of 2010). Even that doctrine, moreover, is most firmly established in relation to originating process — service of summons to enter appearance, which goes to the Court's very jurisdiction to enter judgment — rather than to a notice to show cause preceding an Order 17 dismissal for want of prosecution, which is a case-management sanction rather than an adjudication on the merits; whether the doctrine extends with equal force to the latter is, at best, unsettled, and was in any event never argued below or on this appeal.
29. The Appellant instead elected to proceed by way of a Notice of Motion under Order 12 Rule 7 of the Civil Procedure Rules seeking reinstatement — a form of application that necessarily invokes the Court's discretion and requires the applicant to furnish a sufficient and excusable explanation for the default, rather than one which asks the Court to declare the underlying order a nullity as of right. Having chosen that procedural path, the Appellant cannot now fault the trial Magistrate for deciding the Application actually before her according to its true legal character, nor can this Court, sitting on appeal from that decision, fault her for not embarking on an inquiry into an entirely different form of relief that was neither pleaded nor sought. A trial Court is not required to re-characterise a party's application for him, particularly where, as here, he was throughout legally represented.
30. It is also material that the trial Magistrate did not, in the Ruling of 14th February 2024, treat the question of service of the notice to show cause as decisive; rather, she proceeded on the footing — favourable to the Appellant — that the true question was whether his explanation for the ensuing years of inactivity was sufficient to justify reinstatement 'notwithstanding whether notice to dismiss was served or not'. That approach cannot be faulted. Even where the propriety of an initial dismissal is in genuine doubt, a Court considering reinstatement is entitled, indeed obliged, to have regard to the conduct of the litigant both before and after the dismissal, including the length of time the litigant took to discover and to challenge it, since a party who has himself been indolent cannot found a claim to relief purely on a disputed procedural irregularity that he did nothing to investigate or clarify for over two years. This ground of appeal, framed as an assertion that the trial Court failed to consider material facts, does not on examination establish that the learned Magistrate misdirected herself; if anything, the Ruling reflects that she was alive to, and applied a standard more generous than, the natural-justice point now pressed.
(ii) Whether the delay was inordinate and inexcusable
31. This is the heart of the appeal. The applicable test, as stated in Ivita v Kyumbu (1984) KLR 441 and adopted by the trial Court, is 'whether the delay is prolonged and inexcusable; and, if it is, whether justice can be done despite such delay,' bearing in mind that justice must be done to both sides.
32. The record establishes the following chronology, which is not seriously in dispute: judgment in the test suit was delivered on 7th August 2018; the Appellant's hearing resumed on 14th May 2019, some nine months later; the application to amend the Plaint, filed on 3rd June 2019, was determined on 26th November 2019, with specific directions for the filing of the amended pleadings and for the suit to be mentioned within 21 days of service of the amended defence to confirm a hearing date; no step whatsoever was thereafter taken by either side; the suit was dismissed for want of prosecution on 10th March 2021, roughly fifteen months after the last recorded activity; and the Appellant did not move to reinstate the suit until 19th June 2023, a further period of some twenty-seven months after the dismissal itself, and indeed did not, on his own account, become aware of the dismissal until 16th June 2023.
33. On any view, this is a substantial period of inactivity. Even allowing the Appellant the full benefit of the disruption occasioned by the Covid-19 pandemic — broadly, the period from March 2020 to late 2021 or into 2022 — that disruption does not account for: (a) the period between 26th November 2019 and the onset of the pandemic in March 2020, during which the directions given in the Ruling of 26th November 2019 for filing of amended pleadings and fixing of a hearing date were simply not complied with; nor (b) the period following the substantial normalisation of Court operations, by which time this Court can, and does, take judicial notice that Kenyan Courts, including magistrates' Courts, had resumed full physical and virtual sittings, and registries were open and accessible, such that a diligent litigant monitoring his own case would have discovered the dismissal considerably sooner than June 2023. A blanket attribution of a multi-year delay to 'the pandemic', without particularising which steps were specifically impeded and for how long, falls short of the kind of concrete explanation that the authorities require (see Jim Rodgers Gitonga Njeru v Al Husnain Motors Limited & 2 Others [2018] eKLR; Olumbe v Obanyi [2025] KEHC 5386 (KLR); Bilha Ngonyo Isaac v Kembu Farm & Another [2018] eKLR).
34. Two further features of the record reinforce the trial Court's assessment. The first is that this was not the first occasion on which the suit was dismissed for want of prosecution: it had already suffered an identical fate on 5th September 2017 and was reinstated by consent in December 2018. A litigant who has once experienced the consequences of failing to actively prosecute a claim, and who is thereafter afforded a fresh opportunity to do so, bears a correspondingly higher obligation to ensure that history does not repeat itself. The second is that the delay in this case is not confined to the period before dismissal; it persisted, unexplained by reference to any specific hindrance, for well over two years after the dismissal itself, during which time neither the Appellant nor his Advocate made any inquiry as to the status of a suit they professed to still be pursuing. Taken together, these features amply support the trial Magistrate's characterisation of the Appellant as having failed, over an extended period, 'to care about the position of his case.'
35. This Court is accordingly unable to find that the trial Magistrate misapprehended the facts or misdirected herself on the applicable law in reaching the conclusion that the delay was inordinate and, on the explanation proffered, inexcusable.
(iii) Prejudice to the Respondents
36. The Appellant is correct that mere delay, without more, is ordinarily curable by an award of costs, and that the Court of Appeal in Tana & Athi Rivers Development Authority v Jeremiah Kimigho Mwakio & 3 Others [2015] eKLR cautioned against dismissing claims where the Respondent has suffered no prejudice beyond the ordinary incidents of litigation. That principle, however, is not absolute, and must be weighed against the competing and equally well-established public interest in the finality of litigation and the efficient use of scarce judicial time and resources, expressed in sections 1A and 1B of the Civil Procedure Act and reiterated in Olumbe v Obanyi (supra): 'there ought to be no delay in the dispensation of justice ... litigation must be expedited and concluded by the parties ... dismissal reduces the ever-increasing caseloads, and the backlogs, caused by stale suits clogging the judicial system.'
37. On the facts of this case, the 1st Respondent has carried the burden of a claim arising out of an accident in 2011, in a suit filed in 2014, twice dismissed for want of prosecution, and now over a decade old without a substantive trial having been concluded. While it is true that no specific evidentiary prejudice — such as the loss of a witness or a document — has been demonstrated, the cumulative prejudice of prolonged, repeatedly self-inflicted delay by the claiming party is itself a legitimate consideration bearing on how a Court should exercise its discretion, particularly where, as here, it forms part of a pattern rather than an isolated lapse. The trial Magistrate was entitled to weigh this factor, together with the length and repeated character of the delay, in declining to reinstate the suit a second time.
(iv) Mistake of Counsel
38. The Appellant invokes the well-known principle that the mistakes of Counsel ought not ordinarily to be visited upon an innocent litigant, as illustrated in the authorities placed before the trial Court and this Court, including the Tana case (supra) and James Kanyita Nderitu & Another v Marios Philotas Ghikas & Another (supra). That principle is sound but not, as the Court of Appeal itself cautioned in the Tana case, one of automatic or unqualified application: 'Courts will readily excuse a mistake of Counsel if it affords a justiciable, expeditious and holistic disposal of a matter. However, ... the exercise of such discretion is by no means automatic. While acknowledging that mistake of Counsel should not be visited on a client, it should be remembered that Counsel's duty is not limited to his client; he has a corresponding duty to the Court ... and even to the other side.'
39. Here, the default is not readily characterised as a single, discrete and excusable lapse of the kind typically excused under this principle — for example, a solicitor's mistaken diary entry causing non-attendance on a single hearing date. Rather, the record discloses a sustained pattern of non-engagement with the case, spanning years and recurring after an earlier dismissal from which lessons ought to have been drawn. On these facts, the Appellant's reliance on the mistake-of-counsel doctrine does not displace the wider assessment of inordinate and repeated delay properly made by the trial Court.
(v) Was the discretion exercised judicially?
40. Drawing the foregoing analysis together, the Ruling of 14th February 2024 demonstrates that the learned trial Magistrate correctly identified the applicable legal framework, considered both the Supporting Affidavit and the Replying Affidavit, applied the test enunciated in Ivita v Kyumbu, and reached a conclusion — that the delay was inordinate and insufficiently explained — that is amply supported by the record. This Court, exercising its own independent evaluation of that record as a first appellate Court, arrives at the same conclusion. The Appellant has not demonstrated that the trial Magistrate misdirected herself on the law, misapprehended the facts, took into account irrelevant considerations, omitted relevant ones, or reached a decision that was plainly wrong. In those circumstances, this Court declines to interfere with the exercise of the trial Court's discretion (Mbogo & Another v Shah [1968] EA 93; Shah v Mbogo & Another [1967] EA 116).
H. DISPOSITION
41. For the foregoing reasons, the appeal fails on all grounds. The Ruling and Order of Hon. V. Yator, Principal Magistrate, delivered on 14th February 2024 in Webuye Civil Suit No. 109 of 2014, are hereby upheld.
I. ORDERS
42. This Court makes the following orders:
(a) The appeal be and is hereby dismissed.
(b) The Ruling and Order of the Senior Principal Magistrate's Court at Webuye dated 14th February 2024 in Civil Case No. 109 of 2014 be and is hereby upheld.
(c) The costs of this appeal shall be borne by the Appellant and awarded to the 1st and 3rd Respondents.
It is so ordered.
In the presence of:
Ms. Amboko Counsel for the Appellant
Ms. Kamau Counsel for the 1st and 3rd Respondents
Irene Chelang'at - Court Assistant.
1. This is a first appeal from the Ruling of the Senior Principal Magistrate's Court at Webuye (Hon. V. Yator, Principal Magistrate) delivered on 14th February 2024, dismissing the Appellant's Notice of Motion dated 19th June 2023 by which he sought reinstatement of Webuye Civil Suit No. 109 of 2014, a suit that had earlier been dismissed for want of prosecution on 10th March 2021.
2. The appeal is opposed by the 1st and 3rd Respondents, who filed submissions supporting the impugned Ruling. The 2nd Respondent did not participate in these proceedings, either at the trial or on appeal, and no order is made in respect of him beyond what is necessary to dispose of the appeal as between the active parties.
B. BACKGROUND
3. The dispute has its origin in a road traffic accident that occurred on 29th June 2011 along the Eldoret–Turbo road, in which the Appellant, then a fare-paying passenger in motor vehicle registration number KAV 382R (a Nissan matatu), sustained injuries when the vehicle in which he was travelling was involved in a collision with motor vehicle registration number KAV 691U (a Scania prime mover). The Appellant sued the registered owner of the prime mover, its driver and its insurer/agent as the 1st, 2nd and 3rd Defendants (now the 1st, 2nd and 3rd Respondents) in Webuye Civil Suit No. 109 of 2014, claiming special and general damages for negligence.
4. The suit was one of a series of related claims arising from the same accident, the lead or 'test' suit being Webuye SPMCC No. 103 of 2014, George Barasa Sifuna v Tigaad Transport Company Limited & 2 Others. By consent recorded on 26th January 2016, the present suit was stayed pending the outcome of the test suit. Judgment in the test suit was delivered on 7th August 2018.
5. The matter thereafter proceeded, in stages, as follows:
(a) On 14th May 2019, the Appellant (PW1) commenced his testimony, adopting his witness statement and producing his documents. Under cross-examination it emerged that the particulars of injury pleaded in the original Plaint were at variance with the medical evidence on record. Hearing was adjourned to 29th October 2019 at the Appellant's request, with costs to the Respondents.
(b) On 29th October 2019, the Appellant applied by Notice of Motion dated 3rd June 2019 to amend the Plaint to align the particulars of injury with the medical evidence. The 1st and 3rd Respondents opposed the application as an afterthought calculated to plug the evidential gaps exposed in cross-examination. Ruling was reserved.
(c) On 26th November 2019, the trial Court (Hon. N.N. Barasa, SRM) allowed the amendment, directing that the Amended Plaint be filed and served within 14 days, the Amended Defence within a further 14 days, and that the suit be mentioned within 21 days of service of the defence to confirm a hearing date.
6. No further step was taken in the matter after 26th November 2019. On 10th March 2021, in the absence of both parties and their Advocates, the trial Court (Hon. M. Munyekenye, SPM) recorded that the parties had been served, that they had not attended Court, and dismissed the suit for want of prosecution under Order 17 of the Civil Procedure Rules. It is common ground that this was the second occasion on which the suit suffered such a dismissal; it had previously been dismissed for want of prosecution on 5th September 2017 and was reinstated by consent, following which the matter resumed and proceeded to the stage described above.
7. The Appellant's case, as deposed to in the Supporting Affidavit sworn on 19th June 2023, is that his Advocate only discovered the dismissal on 16th June 2023 upon checking the Court's online portal, and that neither he nor his Advocate had been served with a notice to show cause prior to the dismissal of 10th March 2021. He attributed the intervening inactivity substantially to the Covid-19 pandemic. He accordingly filed the Notice of Motion dated 19th June 2023 under Order 12 Rule 7 and Order 51 Rule 1 of the Civil Procedure Rules, seeking reinstatement of the suit.
8. The application was opposed by the 1st and 3rd Respondents by a Replying Affidavit sworn by Phabian W. Khaemba on 24th July 2023, in which it was deposed that a notice to show cause had in fact been issued by the Court on 11th January 2021 and served on the parties, requiring their attendance on 10th March 2021; that the Appellant ignored the notice; that the Covid-19 pandemic did not disable the operation of the Courts, whose registries remained open throughout; and that the suit had already been dismissed once before, in 2017, such that the Appellant ought to have been more vigilant.
9. On 9th November 2023, the trial Court directed that the application be canvassed by way of written submissions. Both sides complied, and on 14th February 2024, the trial Court delivered the Ruling now under appeal.
C. THE IMPUGNED RULING
10. In her Ruling, the learned trial Magistrate correctly identified the sole question before her as being whether the suit, dismissed for want of prosecution on 10th March 2021, ought to be reinstated. She directed herself to sections 1A, 1B and 3A of the Civil Procedure Act on the overriding objective and the inherent power of the Court, and to the authorities of Ivita v Kyumbu [1984] KLR 441, Jim Rodgers Gitonga Njeru v Al Husnain Motors Limited & 2 Others [2018] eKLR, and Shah v Mbogo & Another [1967] EA 116 on the principles governing dismissal and reinstatement of suits for want of prosecution.
11. Having considered the Notice of Motion, the Supporting Affidavit and the Replying Affidavit, the learned Magistrate held that she was 'not entirely convinced by the arguments put forward by the Plaintiff to explain his non-attendance in Court as and when required, and generally his failure to have the matter prosecuted since 2018 when judgment on the test suit was delivered'. She found that there was no justification for a litigant with a pending suit to remain inactive for some five years, from 2018 to 2023, 'without caring about the position of his case notwithstanding whether notice to dismiss was served or not'. On that basis, she found the delay inordinate, declined to exercise her discretion in the Appellant's favour, and dismissed the application with costs to the Respondents.
D. THE APPEAL
12. Aggrieved, the Appellant filed the present appeal on the following grounds, as set out in the Memorandum of Appeal:
(i) that the learned Magistrate erred in law and in fact by failing to consider material facts and the totality of the record, thereby arriving at a wrong decision;
(ii) that the learned Magistrate erred in law and in fact by erroneously exercising her discretion;
(iii) that the learned Magistrate erred in law and in fact by condemning the Appellant unheard; and
(iv) that the decision is wrong in law and in principle.
13. The Appellant seeks an order allowing the appeal, setting aside the Ruling of 14th February 2024, and costs of the appeal.
E. THE RIVAL SUBMISSIONS
(i) The Appellant's Submissions
14. Although the Memorandum of Appeal raises four grounds, the Appellant's written submissions condense the appeal into a single question: whether the learned Magistrate erred in law and in fact by failing to consider material facts and the totality of the record, thereby arriving at a wrong decision. In elaboration, the Appellant makes four principal points.
15. First, that the dismissal of 10th March 2021 was procedurally unfair because the Appellant was never invited to show cause why the suit should not be dismissed, that no proof of the alleged notice to show cause or of its service was ever placed before the trial Court despite the point having been squarely raised in the Supporting Affidavit, and that a dismissal in such circumstances offends the right to a fair hearing and the rules of natural justice, relying on M.K. v M.W.M. & Another [2015] eKLR, Onyango v Attorney General (1986–1989) EA 456, and Patriotic Guards Ltd v James Kipchirchir Sambu, Civil Appeal No. 20 of 2016.
16. Second, that the suit had not, as the trial Magistrate appeared to suggest, lain entirely dormant since 2018; rather, it had proceeded actively through several material steps between August 2018 and November 2019 — resumption of hearing, part-testimony of PW1, the application to amend, and the ruling allowing the amendment — with the ensuing inactivity attributable to the Covid-19 pandemic.
17. Third, that the Respondents would suffer no prejudice from reinstatement that could not be adequately compensated in costs, since what remained outstanding was merely the conclusion of a partly heard trial, relying on Tana & Athi Rivers Development Authority v Jeremiah Kimigho Mwakio & 3 Others [2015] eKLR.
18. Fourth, that any default was that of Counsel rather than of the litigant personally, and that the settled principle that the mistakes of Counsel ought not ordinarily to be visited upon an innocent litigant, as applied by the Court of Appeal in the Tana case and in James Kanyita Nderitu & Another v Marios Philotas Ghikas & Another, Civil Appeal No. 6 of 2015 (Mombasa), should have weighed in the Appellant's favour.
(ii) The 1st and 3rd Respondents' Submissions
19. The 1st and 3rd Respondents support the Ruling in its entirety. They submit that the record itself refutes the allegation that the trial Magistrate ignored material facts, since the Ruling expressly records that she considered both the Supporting Affidavit and the Replying Affidavit before reaching her decision.
20. On the merits, the Respondents emphasise that whether to reinstate a suit dismissed for want of prosecution is a matter of judicial discretion, and that an appellate Court will not interfere with the exercise of that discretion save on the well-established grounds identified in Mbogo & Another v Shah [1968] EA 93, namely misdirection on the law, misapprehension of the facts, taking into account irrelevant matters or omitting relevant ones, or a decision that is plainly wrong. They rely additionally on Karani v Cheburer [2025] KEHC 406 (KLR), Daqare Transporters Limited v Chevron Kenya Limited [2020] KECA 309 (KLR), Olumbe v Obanyi, Civil Appeal E014 of 2024, [2025] KEHC 5386 (KLR), and Bilha Ngonyo Isaac v Kembu Farm & Another [2018] eKLR, for the proposition that Courts will not readily reinstate suits abandoned through inordinate and unexplained delay, particularly where the litigant has previously suffered a like dismissal and has not learnt from the experience.
21. The Respondents contend that between 7th August 2018, when judgment in the test suit was delivered, and 19th June 2023, when the reinstatement application was filed, close to five years elapsed; that the Covid-19 pandemic cannot account for the whole of that period, since the Courts and their registries continued to operate, albeit with adjustments, throughout the pandemic; that this was in any event the second time the same suit had been dismissed for want of prosecution, the first having been in September 2017; and that the Appellant, as a litigant who had already once experienced the consequences of failing to prosecute his case, ought to have been more vigilant thereafter. On prejudice, they submit that the 1st Respondent has carried the burden of this litigation, arising from an accident that occurred in 2011 and a suit filed in 2014, for well over a decade without resolution, and that the law favours finality.
F. DUTY OF THE FIRST APPELLATE COURT AND THE ISSUES FOR DETERMINATION
22. Both parties correctly identify the two governing principles. As a first appellate Court, this Court is under a duty to re-evaluate, re-assess and re-analyse the evidence and the record before the trial Court, and to reach its own conclusions on it, bearing in mind that it neither saw nor heard the witnesses and should therefore make due allowance in that respect (Selle v Associated Motor Boat Co. [1968] EA 123; Abok James Odera t/a A.J. Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR).
23. At the same time, the decision under appeal was a discretionary one. It is trite that where a Court is called upon to exercise a discretion, it must do so judicially, guided by legal principle and the circumstances of the case, and not according to private whim (Mbogo & Another v Shah [1968] EA 93). An appellate Court will not lightly interfere with the exercise of such discretion by a trial Court merely because, sitting in the trial Court's place, it might have arrived at a different conclusion. Interference is warranted only where it is demonstrated that the trial Court misdirected itself on the law, misapprehended the facts, took into account matters it ought not to have considered, omitted to take into account matters it ought to have considered, or that the resulting decision was plainly wrong.
24. Reading the grounds of appeal together with the submissions filed, this Court distills the following issues for determination:
(a) whether the process leading to the dismissal of the suit on 10th March 2021 was attended by a breach of the rules of natural justice such as to vitiate the trial Court's subsequent refusal to reinstate it;
(b) whether the delay between 7th August 2018 (or, alternatively, 26th November 2019) and 19th June 2023 was, on the record, inordinate and inexcusable;
(c) whether the Respondents would suffer prejudice from reinstatement that could not be met by an order for costs;
(d) whether the default, if any, was that of the Appellant's counsel rather than the Appellant, and what weight that circumstance should bear; and
(e) whether, on the totality of the foregoing, the learned trial Magistrate exercised her discretion judicially, such that this Court should decline to interfere with it.
G. ANALYSIS AND DETERMINATION
(i) The alleged breach of natural justice
25. The Appellant's complaint that he was condemned unheard when the suit was dismissed on 10th March 2021 without proof of service of a notice to show cause is a serious one, natural justice being foundational to the judicial process (see M.K. v M.W.M. & Another [2015] eKLR; Onyango v Attorney General (1986–1989) EA 456; Mbaki & Others v Macharia & Another [2005] 2 EA 206). The Court has scrutinised the record with this complaint in mind.
26. On the record of proceedings, the entry of 10th March 2021 reads simply: 'The parties were served. They have not come to Court. This matter is thus dismissed under Order 17 Civil Procedure Code for want of prosecution.' Neither an affidavit of service nor a return of service in respect of that specific hearing date appears in the record placed before this Court, notwithstanding that the point was squarely raised in paragraph 12 of the Appellant's Supporting Affidavit. The Respondents, for their part, assert in the Replying Affidavit of Phabian Khaemba that a notice to show cause was issued by the Court on 11th January 2021 and served on the parties — an assertion equally unsupported, on this record, by any exhibited proof of service.
27. This Court does not consider it necessary, or indeed proper on a record such as this, to resolve that factual conflict in the abstract, because the complaint, properly understood, goes to the propriety of the original dismissal of 10th March 2021 rather than to the propriety of the Ruling of 14th February 2024 that is actually the subject of this appeal. The Appellant did not appeal the order of dismissal itself; instead, he elected to move the trial Court by way of an application for reinstatement under Order 12 Rule 7 of the Civil Procedure Rules. An application for reinstatement necessarily proceeds on the premise that the underlying dismissal, whatever its shortcomings, stands unless and until set aside, and invites the Court to exercise a curative discretion having regard to the reasons for the default, the length of delay, and the balance of prejudice — it is not, without more, the correct procedural vehicle for establishing that the dismissal was a nullity for want of service, which is ordinarily a distinct ground calling for a claim that the order be set aside as of right. I make comparison with the case of James Kanyita Nderitu & Another v Marios Philotas Ghikas & Another, Civil Appeal No. 6 of 2015, on the different consequences that follow from an irregular, as opposed to a regular, default order.
28. This distinction is not a mere technicality; it is a route the Appellant could have taken but did not, and its absence from the record confirms that the trial Court cannot be faulted for failing to determine a case that was never put to it. Where a default order is truly irregular for want of service of the process by which the party ought to have been notified of the hearing that led to it, the appropriate and long-settled course is an application to set aside that order as a nullity, to be granted ex debito justitiae — as of right, without the Applicant needing to demonstrate an excusable reason for the default or a triable case, because the very premise of the application is that the Court's process could not properly have run against a party who was never told of it (see the discussion of irregular default judgments in James Kanyita Nderitu & Another v Marios Philotas Ghikas & Another, Civil Appeal No. 6 of 2015, and the authorities cited therein, including Kabutha v Mucheru, HCCC No. 82 of 2002, and Frigonken Ltd v Value Pak Food Ltd, HCCC No. 424 of 2010). Even that doctrine, moreover, is most firmly established in relation to originating process — service of summons to enter appearance, which goes to the Court's very jurisdiction to enter judgment — rather than to a notice to show cause preceding an Order 17 dismissal for want of prosecution, which is a case-management sanction rather than an adjudication on the merits; whether the doctrine extends with equal force to the latter is, at best, unsettled, and was in any event never argued below or on this appeal.
29. The Appellant instead elected to proceed by way of a Notice of Motion under Order 12 Rule 7 of the Civil Procedure Rules seeking reinstatement — a form of application that necessarily invokes the Court's discretion and requires the applicant to furnish a sufficient and excusable explanation for the default, rather than one which asks the Court to declare the underlying order a nullity as of right. Having chosen that procedural path, the Appellant cannot now fault the trial Magistrate for deciding the Application actually before her according to its true legal character, nor can this Court, sitting on appeal from that decision, fault her for not embarking on an inquiry into an entirely different form of relief that was neither pleaded nor sought. A trial Court is not required to re-characterise a party's application for him, particularly where, as here, he was throughout legally represented.
30. It is also material that the trial Magistrate did not, in the Ruling of 14th February 2024, treat the question of service of the notice to show cause as decisive; rather, she proceeded on the footing — favourable to the Appellant — that the true question was whether his explanation for the ensuing years of inactivity was sufficient to justify reinstatement 'notwithstanding whether notice to dismiss was served or not'. That approach cannot be faulted. Even where the propriety of an initial dismissal is in genuine doubt, a Court considering reinstatement is entitled, indeed obliged, to have regard to the conduct of the litigant both before and after the dismissal, including the length of time the litigant took to discover and to challenge it, since a party who has himself been indolent cannot found a claim to relief purely on a disputed procedural irregularity that he did nothing to investigate or clarify for over two years. This ground of appeal, framed as an assertion that the trial Court failed to consider material facts, does not on examination establish that the learned Magistrate misdirected herself; if anything, the Ruling reflects that she was alive to, and applied a standard more generous than, the natural-justice point now pressed.
(ii) Whether the delay was inordinate and inexcusable
31. This is the heart of the appeal. The applicable test, as stated in Ivita v Kyumbu (1984) KLR 441 and adopted by the trial Court, is 'whether the delay is prolonged and inexcusable; and, if it is, whether justice can be done despite such delay,' bearing in mind that justice must be done to both sides.
32. The record establishes the following chronology, which is not seriously in dispute: judgment in the test suit was delivered on 7th August 2018; the Appellant's hearing resumed on 14th May 2019, some nine months later; the application to amend the Plaint, filed on 3rd June 2019, was determined on 26th November 2019, with specific directions for the filing of the amended pleadings and for the suit to be mentioned within 21 days of service of the amended defence to confirm a hearing date; no step whatsoever was thereafter taken by either side; the suit was dismissed for want of prosecution on 10th March 2021, roughly fifteen months after the last recorded activity; and the Appellant did not move to reinstate the suit until 19th June 2023, a further period of some twenty-seven months after the dismissal itself, and indeed did not, on his own account, become aware of the dismissal until 16th June 2023.
33. On any view, this is a substantial period of inactivity. Even allowing the Appellant the full benefit of the disruption occasioned by the Covid-19 pandemic — broadly, the period from March 2020 to late 2021 or into 2022 — that disruption does not account for: (a) the period between 26th November 2019 and the onset of the pandemic in March 2020, during which the directions given in the Ruling of 26th November 2019 for filing of amended pleadings and fixing of a hearing date were simply not complied with; nor (b) the period following the substantial normalisation of Court operations, by which time this Court can, and does, take judicial notice that Kenyan Courts, including magistrates' Courts, had resumed full physical and virtual sittings, and registries were open and accessible, such that a diligent litigant monitoring his own case would have discovered the dismissal considerably sooner than June 2023. A blanket attribution of a multi-year delay to 'the pandemic', without particularising which steps were specifically impeded and for how long, falls short of the kind of concrete explanation that the authorities require (see Jim Rodgers Gitonga Njeru v Al Husnain Motors Limited & 2 Others [2018] eKLR; Olumbe v Obanyi [2025] KEHC 5386 (KLR); Bilha Ngonyo Isaac v Kembu Farm & Another [2018] eKLR).
34. Two further features of the record reinforce the trial Court's assessment. The first is that this was not the first occasion on which the suit was dismissed for want of prosecution: it had already suffered an identical fate on 5th September 2017 and was reinstated by consent in December 2018. A litigant who has once experienced the consequences of failing to actively prosecute a claim, and who is thereafter afforded a fresh opportunity to do so, bears a correspondingly higher obligation to ensure that history does not repeat itself. The second is that the delay in this case is not confined to the period before dismissal; it persisted, unexplained by reference to any specific hindrance, for well over two years after the dismissal itself, during which time neither the Appellant nor his Advocate made any inquiry as to the status of a suit they professed to still be pursuing. Taken together, these features amply support the trial Magistrate's characterisation of the Appellant as having failed, over an extended period, 'to care about the position of his case.'
35. This Court is accordingly unable to find that the trial Magistrate misapprehended the facts or misdirected herself on the applicable law in reaching the conclusion that the delay was inordinate and, on the explanation proffered, inexcusable.
(iii) Prejudice to the Respondents
36. The Appellant is correct that mere delay, without more, is ordinarily curable by an award of costs, and that the Court of Appeal in Tana & Athi Rivers Development Authority v Jeremiah Kimigho Mwakio & 3 Others [2015] eKLR cautioned against dismissing claims where the Respondent has suffered no prejudice beyond the ordinary incidents of litigation. That principle, however, is not absolute, and must be weighed against the competing and equally well-established public interest in the finality of litigation and the efficient use of scarce judicial time and resources, expressed in sections 1A and 1B of the Civil Procedure Act and reiterated in Olumbe v Obanyi (supra): 'there ought to be no delay in the dispensation of justice ... litigation must be expedited and concluded by the parties ... dismissal reduces the ever-increasing caseloads, and the backlogs, caused by stale suits clogging the judicial system.'
37. On the facts of this case, the 1st Respondent has carried the burden of a claim arising out of an accident in 2011, in a suit filed in 2014, twice dismissed for want of prosecution, and now over a decade old without a substantive trial having been concluded. While it is true that no specific evidentiary prejudice — such as the loss of a witness or a document — has been demonstrated, the cumulative prejudice of prolonged, repeatedly self-inflicted delay by the claiming party is itself a legitimate consideration bearing on how a Court should exercise its discretion, particularly where, as here, it forms part of a pattern rather than an isolated lapse. The trial Magistrate was entitled to weigh this factor, together with the length and repeated character of the delay, in declining to reinstate the suit a second time.
(iv) Mistake of Counsel
38. The Appellant invokes the well-known principle that the mistakes of Counsel ought not ordinarily to be visited upon an innocent litigant, as illustrated in the authorities placed before the trial Court and this Court, including the Tana case (supra) and James Kanyita Nderitu & Another v Marios Philotas Ghikas & Another (supra). That principle is sound but not, as the Court of Appeal itself cautioned in the Tana case, one of automatic or unqualified application: 'Courts will readily excuse a mistake of Counsel if it affords a justiciable, expeditious and holistic disposal of a matter. However, ... the exercise of such discretion is by no means automatic. While acknowledging that mistake of Counsel should not be visited on a client, it should be remembered that Counsel's duty is not limited to his client; he has a corresponding duty to the Court ... and even to the other side.'
39. Here, the default is not readily characterised as a single, discrete and excusable lapse of the kind typically excused under this principle — for example, a solicitor's mistaken diary entry causing non-attendance on a single hearing date. Rather, the record discloses a sustained pattern of non-engagement with the case, spanning years and recurring after an earlier dismissal from which lessons ought to have been drawn. On these facts, the Appellant's reliance on the mistake-of-counsel doctrine does not displace the wider assessment of inordinate and repeated delay properly made by the trial Court.
(v) Was the discretion exercised judicially?
40. Drawing the foregoing analysis together, the Ruling of 14th February 2024 demonstrates that the learned trial Magistrate correctly identified the applicable legal framework, considered both the Supporting Affidavit and the Replying Affidavit, applied the test enunciated in Ivita v Kyumbu, and reached a conclusion — that the delay was inordinate and insufficiently explained — that is amply supported by the record. This Court, exercising its own independent evaluation of that record as a first appellate Court, arrives at the same conclusion. The Appellant has not demonstrated that the trial Magistrate misdirected herself on the law, misapprehended the facts, took into account irrelevant considerations, omitted relevant ones, or reached a decision that was plainly wrong. In those circumstances, this Court declines to interfere with the exercise of the trial Court's discretion (Mbogo & Another v Shah [1968] EA 93; Shah v Mbogo & Another [1967] EA 116).
H. DISPOSITION
41. For the foregoing reasons, the appeal fails on all grounds. The Ruling and Order of Hon. V. Yator, Principal Magistrate, delivered on 14th February 2024 in Webuye Civil Suit No. 109 of 2014, are hereby upheld.
I. ORDERS
42. This Court makes the following orders:
(a) The appeal be and is hereby dismissed.
(b) The Ruling and Order of the Senior Principal Magistrate's Court at Webuye dated 14th February 2024 in Civil Case No. 109 of 2014 be and is hereby upheld.
(c) The costs of this appeal shall be borne by the Appellant and awarded to the 1st and 3rd Respondents.
It is so ordered.
In the presence of:
Ms. Amboko Counsel for the Appellant
Ms. Kamau Counsel for the 1st and 3rd Respondents
Irene Chelang'at - Court Assistant.