Introduction and Background
1. On 21 st May 2025 the court directed the Appellant to file his supplementary record of appeal together with his submissions on the appeal failure to which, the appeal stood dismissed. When the matter was mentioned on 2 nd October 2025 to confirm compliance the court noted that there was non-compliance and that the Appellant did not move the court to review or extend the time to comply. Consequently, the court held that the appeal stood dismissed with no orders as to costs and the file was closed.
2. The Appellant has now filed the Notice of Motion dated 29 th October 2025 seeking to review these dismissal orders and reinstate the appeal and the previous stay of execution orders. The application is supported by grounds on its face and the affidavits of Margaret Owade, an advocate in conduct of this matter on behalf of the Appellant, sworn on 29 th October 2025 and 3 rd December 2025. The application is opposed by the Respondent through the replying affidavit of his advocate, Kilonzo A. Muli, sworn on 10 th November 2025. The application was canvassed by way of written submissions which are on record.
Analysis and Determination
3. The main issue for the court’s determination is whether the appeal should be reinstated. It is trite law that an order for reinstatement is discretionary and not as a right as held by the Court of Appeal in the case of Tabuche v Tinga & 2 others [2024] KECA 551 (KLR) as follows:
43. The question as to whether the appellant was entitled to reinstatement of his suit as of right finds answer in Black’s Law Dictionary (Tenth Edition), which defines judicial discretion as:
“The exercise of judgment by a judge or court based on what is fair under the circumstances and guided by the rules and principles of law ; a court’s power to act or not act when a litigant is not entitled to demand the act as a matter of right .” [Emphasis added]
44. Reinstatement of a suit dismissed for want of prosecution is a discretionary remedy and not as of right. In any event, each case depends on its own circumstances.
4. In Ngugi v Thogo [2021] KECA 88 (KLR) Nambuye JA., held as follows:
In an application for reinstatement of a court process, there is need to balance the requirement as to whether reasonable grounds have been proferred for reinstatement and the prejudice to be suffered by the opposite party if such an order for reinstatement were to issue bearing in mind at the same time that dismissal is a draconian order that drives parties away from the seat of justice and should therefore be employed sparingly.”
5. The Appellant contends that the failure to comply with the court’s directions was not deliberate and was caused by factors beyond his control. He claims that a copy of the subordinate court’s order and certified typed proceedings were not in his possession and that despite multiple formal letters, emails, phone calls and physical visits to the Machakos court registry, the subordinate court was extremely slow in providing these documents. That the Appellant's advocates were told the court file was missing, the proceedings were not yet typed, the typist was unavailable and the typed proceedings had errors that needed proofreading. The Appellant also claimed that he faced technical problems when trying to pay for the documents on the e-filing portal.
6. He avers that the order of the subordinate court was only received on 15 th May 2025 and the certified typed proceedings were only obtained on 26 th September 2025, after an apparent long and frustrating process. That an advocate holding the brief for the Appellant’s main counsel on 21 st May 2025 failed to inform her of the order that the appeal would be dismissed if not complied with, so she only became aware of it after the deadline had passed.
7. In response, the Respondent depones that the application is a waste of the court's time, an abuse of process and completely without merit. The Respondent avers that this court has already determined the matter by dismissing the appeal on 2 nd October 2025 and it is therefore functus officio and no longer has the power to revisit or review its own final decision on this issue. The Respondent claims the Appellant only filed his application out of desperation after being served with the Respondent's own application to release the deposited security. Further, that the Appellant's application was filed on 1 st November 2025, nearly a month after the appeal was dismissed on 2 nd October 2025 and he states that the Appellant failed to take the court's self-executing orders seriously as the order was clear and the Appellant should have complied or sought an extension of time before the deadline of 22 nd June 2025.
8. The Respondent refutes the Appellant's claim that the delay was caused by the subordinate court and he states that the subordinate court’s proceedings were already typed and proofread before 21 st May 2025. The Respondent avers that the appeal has already been dismissed and litigation must come to an end and as such prays that the Appellant's application be dismissed with costs.
9. I have gone through the pleadings and submissions. I note that the Appellant has provided a detailed documentary trail of letters, emails and physical visits showing consistent follow-up with the court registry from as early as May 2023 through September 2025 which in my view demonstrates a serious effort to prosecute the appeal, not a casual or negligent approach.
10. I also find that the Appellant has provided plausible reasons for the delay including being informed that the court file was missing, the typist was unavailable, the typed proceedings were initially said not to be ready, then they were ready but had errors requiring proofreading and the e-filing portal had technical problems. The Respondent's claim that the proceedings were ready before 21 st May 2025 is unsupported by any evidence. The Appellant's advocate and deponent swears that she was not aware of the conditional order because her colleague who held her brief failed to inform her and this is evident from the attendance chit annexed by the Appellant as MO-9 . While this is a mistake by counsel, courts have repeatedly held that mistakes by counsel, so long as they are not fraudulent or intended to overreach, should not punish the litigant (see Warsame JA., as he was then, in Towett v Kibaru & another [2025] KECA 1650 (KLR)]
11. The moment the Appellant finally obtained the certified proceedings on 26 th September 2025, he promptly filed his supplementary record and submissions on 1 st October 2025 and he then filed the present application for reinstatement on 1 st November 2025, which this court (Nzioka J.,) in Mwangi & another v Koske alias Rosemary Chepkorir Kosgei [2026] KEHC 3881 (KLR) found was within a reasonable time as it was filed within 30 days of the dismissal being confirmed. On the Respondent’s position that the appeal is dismissed and the court is now functus officio , I am in agreement with the Appellant that the court retains inherent jurisdiction under section 3A of the Civil Procedure Act to make orders necessary for the ends of justice, including setting aside its own procedural orders, especially where a matter has not been heard on its merits as held in John Nahashon Mwangi v Kenya Finance Bank Limited (in Liquidation) [2015] KEHC 6789 (KLR).
12. Further, the Respondent claimed the Appellant only acted after being served with the application to release the deposited funds. While this may be partially true as it galvanized the Appellant, it does not negate the legitimate reasons for the initial non-compliance. On prejudice to be suffered by the Respondent, I find that costs would be sufficient to assuage any such inconvenience or prejudice. Since the decretal sum of Kshs. 1,051,280.00 is already deposited in a joint interest-earning account as security, if the appeal is reinstated, the stay of execution will also be reinstated, protecting the Respondent's funds while also allowing the appeal to be heard. The potential injustice to the Appellant of losing his right of appeal without a hearing on the merits far outweighs the Respondent's inconvenience of waiting a little longer for the final determination of the appeal.
13. In the end, I find that the Appellant has provided a compelling narrative of diligence frustrated by systemic delays within the subordinate court registry. His explanation for the non-compliance is reasonable and supported by evidence and the Respondent has not shown any substantial prejudice that would justify refusing the reinstatement. Conversely, the Appellant stands to suffer a grave injustice of being denied his constitutional right to a fair hearing under Article 50 and having his appeal dismissed on a technicality without ever being heard on its merits.
Conclusion and Disposition
14. In the upshot, the court exercises its discretion in favor of the Appellant by setting aside the dismissal orders of 2 nd October 2025 and reinstating the appeal to be heard on its merits. The stay of execution orders are also reinstated and as a consequence, the Respondent’s application dated 25 th October 2025 for the release of the security is struck out. Costs shall abide the outcome of the appeal.
DATED SIGNED AND DELIVERED virtually this 3 rd DAY OF SEPTEMBER
2026
............................................................................
J W W MONGARE
JUDGE
IN THE PRESENCE OF
1. Ms. Owade for the Appellant/Applicant
2. N/A for the Respondent
3. Abdisalan- Court Assistant
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1. On 21 st May 2025 the court directed the Appellant to file his supplementary record of appeal together with his submissions on the appeal failure to which, the appeal stood dismissed. When the matter was mentioned on 2 nd October 2025 to confirm compliance the court noted that there was non-compliance and that the Appellant did not move the court to review or extend the time to comply. Consequently, the court held that the appeal stood dismissed with no orders as to costs and the file was closed.
2. The Appellant has now filed the Notice of Motion dated 29 th October 2025 seeking to review these dismissal orders and reinstate the appeal and the previous stay of execution orders. The application is supported by grounds on its face and the affidavits of Margaret Owade, an advocate in conduct of this matter on behalf of the Appellant, sworn on 29 th October 2025 and 3 rd December 2025. The application is opposed by the Respondent through the replying affidavit of his advocate, Kilonzo A. Muli, sworn on 10 th November 2025. The application was canvassed by way of written submissions which are on record.
Analysis and Determination
3. The main issue for the court’s determination is whether the appeal should be reinstated. It is trite law that an order for reinstatement is discretionary and not as a right as held by the Court of Appeal in the case of Tabuche v Tinga & 2 others [2024] KECA 551 (KLR) as follows:
43. The question as to whether the appellant was entitled to reinstatement of his suit as of right finds answer in Black’s Law Dictionary (Tenth Edition), which defines judicial discretion as:
“The exercise of judgment by a judge or court based on what is fair under the circumstances and guided by the rules and principles of law ; a court’s power to act or not act when a litigant is not entitled to demand the act as a matter of right .” [Emphasis added]
44. Reinstatement of a suit dismissed for want of prosecution is a discretionary remedy and not as of right. In any event, each case depends on its own circumstances.
4. In Ngugi v Thogo [2021] KECA 88 (KLR) Nambuye JA., held as follows:
In an application for reinstatement of a court process, there is need to balance the requirement as to whether reasonable grounds have been proferred for reinstatement and the prejudice to be suffered by the opposite party if such an order for reinstatement were to issue bearing in mind at the same time that dismissal is a draconian order that drives parties away from the seat of justice and should therefore be employed sparingly.”
5. The Appellant contends that the failure to comply with the court’s directions was not deliberate and was caused by factors beyond his control. He claims that a copy of the subordinate court’s order and certified typed proceedings were not in his possession and that despite multiple formal letters, emails, phone calls and physical visits to the Machakos court registry, the subordinate court was extremely slow in providing these documents. That the Appellant's advocates were told the court file was missing, the proceedings were not yet typed, the typist was unavailable and the typed proceedings had errors that needed proofreading. The Appellant also claimed that he faced technical problems when trying to pay for the documents on the e-filing portal.
6. He avers that the order of the subordinate court was only received on 15 th May 2025 and the certified typed proceedings were only obtained on 26 th September 2025, after an apparent long and frustrating process. That an advocate holding the brief for the Appellant’s main counsel on 21 st May 2025 failed to inform her of the order that the appeal would be dismissed if not complied with, so she only became aware of it after the deadline had passed.
7. In response, the Respondent depones that the application is a waste of the court's time, an abuse of process and completely without merit. The Respondent avers that this court has already determined the matter by dismissing the appeal on 2 nd October 2025 and it is therefore functus officio and no longer has the power to revisit or review its own final decision on this issue. The Respondent claims the Appellant only filed his application out of desperation after being served with the Respondent's own application to release the deposited security. Further, that the Appellant's application was filed on 1 st November 2025, nearly a month after the appeal was dismissed on 2 nd October 2025 and he states that the Appellant failed to take the court's self-executing orders seriously as the order was clear and the Appellant should have complied or sought an extension of time before the deadline of 22 nd June 2025.
8. The Respondent refutes the Appellant's claim that the delay was caused by the subordinate court and he states that the subordinate court’s proceedings were already typed and proofread before 21 st May 2025. The Respondent avers that the appeal has already been dismissed and litigation must come to an end and as such prays that the Appellant's application be dismissed with costs.
9. I have gone through the pleadings and submissions. I note that the Appellant has provided a detailed documentary trail of letters, emails and physical visits showing consistent follow-up with the court registry from as early as May 2023 through September 2025 which in my view demonstrates a serious effort to prosecute the appeal, not a casual or negligent approach.
10. I also find that the Appellant has provided plausible reasons for the delay including being informed that the court file was missing, the typist was unavailable, the typed proceedings were initially said not to be ready, then they were ready but had errors requiring proofreading and the e-filing portal had technical problems. The Respondent's claim that the proceedings were ready before 21 st May 2025 is unsupported by any evidence. The Appellant's advocate and deponent swears that she was not aware of the conditional order because her colleague who held her brief failed to inform her and this is evident from the attendance chit annexed by the Appellant as MO-9 . While this is a mistake by counsel, courts have repeatedly held that mistakes by counsel, so long as they are not fraudulent or intended to overreach, should not punish the litigant (see Warsame JA., as he was then, in Towett v Kibaru & another [2025] KECA 1650 (KLR)]
11. The moment the Appellant finally obtained the certified proceedings on 26 th September 2025, he promptly filed his supplementary record and submissions on 1 st October 2025 and he then filed the present application for reinstatement on 1 st November 2025, which this court (Nzioka J.,) in Mwangi & another v Koske alias Rosemary Chepkorir Kosgei [2026] KEHC 3881 (KLR) found was within a reasonable time as it was filed within 30 days of the dismissal being confirmed. On the Respondent’s position that the appeal is dismissed and the court is now functus officio , I am in agreement with the Appellant that the court retains inherent jurisdiction under section 3A of the Civil Procedure Act to make orders necessary for the ends of justice, including setting aside its own procedural orders, especially where a matter has not been heard on its merits as held in John Nahashon Mwangi v Kenya Finance Bank Limited (in Liquidation) [2015] KEHC 6789 (KLR).
12. Further, the Respondent claimed the Appellant only acted after being served with the application to release the deposited funds. While this may be partially true as it galvanized the Appellant, it does not negate the legitimate reasons for the initial non-compliance. On prejudice to be suffered by the Respondent, I find that costs would be sufficient to assuage any such inconvenience or prejudice. Since the decretal sum of Kshs. 1,051,280.00 is already deposited in a joint interest-earning account as security, if the appeal is reinstated, the stay of execution will also be reinstated, protecting the Respondent's funds while also allowing the appeal to be heard. The potential injustice to the Appellant of losing his right of appeal without a hearing on the merits far outweighs the Respondent's inconvenience of waiting a little longer for the final determination of the appeal.
13. In the end, I find that the Appellant has provided a compelling narrative of diligence frustrated by systemic delays within the subordinate court registry. His explanation for the non-compliance is reasonable and supported by evidence and the Respondent has not shown any substantial prejudice that would justify refusing the reinstatement. Conversely, the Appellant stands to suffer a grave injustice of being denied his constitutional right to a fair hearing under Article 50 and having his appeal dismissed on a technicality without ever being heard on its merits.
Conclusion and Disposition
14. In the upshot, the court exercises its discretion in favor of the Appellant by setting aside the dismissal orders of 2 nd October 2025 and reinstating the appeal to be heard on its merits. The stay of execution orders are also reinstated and as a consequence, the Respondent’s application dated 25 th October 2025 for the release of the security is struck out. Costs shall abide the outcome of the appeal.
DATED SIGNED AND DELIVERED virtually this 3 rd DAY OF SEPTEMBER
2026
............................................................................
J W W MONGARE
JUDGE
IN THE PRESENCE OF
1. Ms. Owade for the Appellant/Applicant
2. N/A for the Respondent
3. Abdisalan- Court Assistant
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