1. The appeal that is before this court for determination is seeking to set aside the Ruling and Orders of the Chief Magistrates Court of Kenya at Nairobi delivered on 26thJanuary, 2024.
2. The Appellant seeks orders that :-
a. This Appeal be allowed.
b. The Ruling delivered on 26th January, 2024 by the Honourable Rawlings Liluma (SRM) and the consequential Orders therefrom be set aside.
c. The Lower Court matter, being NBI CMCC NO. 6064 OF 2019, between the parties herein be re-instated for full hearing and determination.
d. The Appellants be granted the costs of this Appeal.
e. The Court be pleased to make any other suitable order and/or further orders as it may deem fit.
The appellants case:
3. The appellants case is that on or about August, 2019, the Appellants herein instructed the firm of Bill Simbah & Associates Advocates to institute and prosecute, on their behalf, a claim against the Respondent, for payments of the sum of Kshs. 4,369,098/= being an amount owing for service charges.
4. A suit was subsequently filed on 15th August, 2019 being NBI CMCC NO. 6064 OF 2019 between the parties herein.
5. After a long wait, the Appellants, in or about January, 2020, sought an update from their advocates and, vide a letter dated 21st January, 2020 the advocates furnished the Appellants with a Status Report on their matter.
6. The Appellants appeared in Court on 25thAugust, 2022 and on 25th April, 2023 after which the Appellants’ former advocates assured the Appellants that they would communicate to them on the next hearing date.
7. In early March, 2024 upon following up, it was brought to their attention that the matter before the lower Court had been dismissed way back on 14th September, 2023 for nonattendance on their part.
8. It turned out that their former advocates had filed an application seeking to reinstate the matter, however, vide a Ruling of 26th January, 2024 delivered the application was dismissed, thereby precipitating this Appeal.
9. The appellant advances the following grounds of appeal:-
a. THAT the Learned Trial Magistrate erred in law and in fact by failing to consider the reasons given by the Appellants to have the Lower Court matter reinstated and determined to its logical conclusion and, in failing to so consider, the Learned Trial Magistrate delivered the impugned Ruling.
b. THAT the Learned Trial Magistrate erred in law and in fact by failing to take into consideration the points in law and facts given by the Appellants.
c. THAT the Learned Trial Magistrate erred in law and in fact by narrowly framing the issues before him thereby resulting in the wrong decision.
d. THAT the Learned Trial Magistrate erred in fact and law in failing to find that the reasons advanced by the Appellant’s advocates in seeking to have the matter reinstated were legitimate and deserving and that, in any event, the Respondent was unlikely to suffer any prejudice.
e. THAT the Learned Trial Magistrate erred in law and in fact by failing to consider that the main issue of contention before it was yet to be settled and /or determined but still went ahead to deliver the impugned Ruling.
f. THAT the Learned Trial Magistrate misdirected himself and proceeded, in the Ruling, to shift the burden of proof in the negative by implying that the Appellants failed to give satisfactory proof as to why the matter should be reinstated when in fact the Learned Trial Magistrate did not at all analyze the grounds presented by the Appellant’s advocates in support of their application giving rise to the impugned Ruling.
The respondent case;
10. It submits that the trial court fully applied itself to the facts surrounding the case and the law and weighed the same against the reasons advanced by the Appellant for not attending the hearing on 14th September, 2023.
11. It cannot be argued that the trial magistrate shifted the burden of proof to the Appellants to prove why the matter was to be reinstated.
12. It was the Appellants who sought to reinstate the matter and requiring them to discharge the burden of proof for the same cannot be deemed to be a shift of the burden of proof. It has been a long accepted jurisprudence that 'he who alleges something must prove'. Further the burden of proof rests with the party who would suffer prejudice if the said facts were not proved; and in the instant case, this party was clearly the Appellant.
13. The ruling delivered by the trial magistrate on 26th January, 2024 was quite judicious and should not be interfered with.
14. The quintessence of the application leading to the ruling on the 26th day of January, 2024 was that on the 14/09/ 2023, the suit was scheduled for a hearing (of which the Appellant insisted that the same be done physically) which the Appellants did not attend.
15. The Appellants insisted that they logged into virtual court at 9.00am on the material day in order to take time allocation. They alleged that as the court was going on, they experienced a power-outage causing their internet to dip hence breaking their connection.
16. The Appellants insisted that they logged in again however their call dropped again and by the time they logged in again, the learned magistrate had left the session after conducting the hearings.
17. The Respondent urges the court to disregard this assertion because, having insisted on a physical hearing, nothing stopped the Appellants from coming to open court to proceed with the hearing.
18. The Appellants did not furnish the court with any evidence to show that indeed counsel or the Appellants ever attended court on the material day.
19. The matter was actually called out severally, both on the virtual platform and in physical court but neither the Appellants nor their Advocates were available.
20. Moreover, before dismissing the matter for non-attendance at about 12 noon on the said date, the court once again called out the matter both in the virtual platform and in physical court but still, neither the Appellants nor their Advocates were available.
21. The Appellants were well aware of the hearing set for 14/09/2023 and in fact requested that such hearing be done physically.
22. In furtherance of the same, the Appellants' Advocates never attempted to reach out to the Respondent's Advocates which they would have been expected to do if indeed they faced the challenges alleged and for a fact were interested in pursuing the case.
23. Reliance is placed in the case of Elosy Murugi Nyaga v Tharaka Nithi County Government & Tharaka Nithi Public Service Board where the Respondent submitted that the Court should not exercise its discretion in favourof an applicant who failed to attend court for the hearing of his case and gives no satisfactory reasons for the nonattendance then states that he is prejudiced by the dismissal order. NZIOKI WA MAKAU J further stated:
I am mindful of the fact that dismissal of cases in summary procedure such as done here may be draconian but when the occasion calls for such action, the court should not shy away from taking such measures. The motion before me is devoid of merit and is accordingly dismissed with costs to the Respondents."
24. In the case of Mbogo & Another v Shah [1968] EA 93 and Pithon Waweru Maina v Thuku Mugiria [1983] KLR 78, the law on setting aside of ex parte judgment or order was considered in great detail. The principles governing the exercise of the judicial discretion to set aside an ex parte judgment obtained in default of either party to attend the hearing are:
i. Firstly, there are no limits or restrictions on the judge's discretion except that it should be based on such terms as may be just because the main concern of the court is to do justice to the parties.
ii. Secondly, this discretion is intended so to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist the person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice.
iii. A discretionary power should be exercised judicially and not arbitrarily or idiosyncratically
Analysis and Determination;
25. The issues for determination are;
1) Whether the appeal has merit.
2) Who shall bear the costs.
Whether the appeal has merit.
26. In Selle & Another vs. Associated Motor Boat Co Ltd & Others [1968] EA The court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses and thus make due allowance in that respect.
27. In Wachira Karani vs. Bildad Wachira (2016) eKLR as was quoted in the case of David Gicheru v Gicheha Farms Limited & another [2020] eKLR the Court held that: -
a. “The fundamental duty of the Court is to do justice between the parties. It is in turn, fundamental that to that duty, those parties should each be allowed a proper opportunity to put their cases upon the merits of the matter…”
28. In Karinga Gaciani & 11 Others v NdegeKabibi Kimanga & Agnes Wangechi the Supreme court said that it is not enough for a party to simply blame the advocates on record for all manner of transgressions. Courts have always emphasized that parties have a responsibility to show interest in and to follow up on their cases even when they are represented by counsel, and it does not matter whether the party is literate or not.
29. As held in Savings and Loans Ltd V Susan Wanjiru Muritu HCCC No. 397 of 2002;
“It is trite that a case belongs to a litigant and not to her advocate. A litigant has a duty to pursue the prosecution of his or her case. The court cannot set aside dismissal of a suit on the sole ground of a mistake by counsel of the litigant on account of such advocate’s failure to attend court. It is the duty of the litigant to constantly check with her advocate the progress of her case. In the present case, it is apparent that if the defendant had been a diligent litigant, she would have been aware of the dismissal of her previous application for want of prosecution soon after the said dismissal. For the defendant to be prompted to action by the plaintiff’s determination to execute the decree issued in its favour, is an indictment of the defendant. She had been indolent and taking into account her past conduct in the prosecution of the application to set aside the default judgement that was dismissed by the court, it would be a travesty of justice for the court to exercise its discretion in favour of such a litigant.”
30. The Court of Appeal in Kariuki v Wangeci & 7 others (Civil Application E250 of 2023) [2024] KECA 1692 had the following to say;
“On behalf of the respondent, reliance was placed on the authorities in Rajesh Rughani v Fifty Investments Limited & Another [2016] eKLR for the proposition that it is not enough to blame previous counsel on record without an explanation as to the action taken by the litigant to show that he did not condone or collude in the delay; Paul Makokha Okoiti v Equity Bank & Attorney General [2016] eKLR to highlight the position that self- representation is not a panacea or licenceto demand that one must get what he asks; and Nicholas Kiptoo Korir Salat v Independent Electoral and Boundaries Commission & 6 Others [2013] eKLR to highlight the need to respect the rules and timelines.
31. In the case of Habo Agencies Ltd v Wilfred Odhiambo Musingo (2015) eKLR it was stated thus:
“It is not enough for a party in litigation to simply blame the Advocates on record for all manner of transgressions in the conduct of litigation. Courts have always emphasized that parties have a responsibility to show interest in and to follow up their cases even when they are represented by counsel.”
32. The suit informing the appeal before this court was filed on 15th August, 2019 being NBI CMCC NO. 6064 OF 2019.After a long wait, the Appellants, in or about January, 2020, sought an update from their advocates.
33. It’s their case that The Appellants appeared in Court on 25thAugust, 2022 and on 25th April, 2023 after which the Appellants’ former advocates assured the Appellants that they would communicate to them on the next hearing date.
34. In early March, 2024 upon following up, it was brought to their attention that the matter before the lower Court had been dismissed way back on 14th September, 2023 for nonattendance on their part.
35. Their former advocates had filed an application seeking to reinstate the matter, however, vide a Ruling of 26th January, 2024 delivered the application was dismissed, thereby precipitating this Appeal.
36. The Appellants do not explain where they went from 25th April, 2023 after their former advocates assured them that they would communicate to them on the next hearing date up to March, 2024 when they resurfaced. That was almost one year later when their advocate informed them that their case had been dismissed way back on 14th September, 2023 for nonattendance on their part.
37. A litigant who takes almost one year to follow up on their case cannot be said to be diligent .It would appear like they lost interest in their case.
38. Equity does not aid an indolent litigant who seeks to blame their lawyer for their lethargy. The court has looked at the whole case in totality and found that the respondent had their right to move on and not to have an axe hanging over their head indefinitely. There must be an end to litigation. The Appellants have not persuaded the court as to why the appeal should succeed.
Costs;
39. In Joseph Oduor Anode v. Kenya Red Cross Society, Nairobi High Court Civil Suit No. 66 of 2009; [2012] eKLR Odunga, J. the court observed:
“…whereas this Court has the discretion when awarding costs, that discretion must, as usual, be exercised judicially. The first point of reference, with respect to the exercise of discretion is the guiding principles provided under the law. In matters of costs, the general rule as adumbrated in the aforesaid statute [the Civil Procedure Act] is that costs follow the event unless the court is satisfied otherwise. That satisfaction must, however, be patent on record. In other words, where the Court decides not to follow the general principle, the Court is enjoined to give reasons for not doing so.In my view it is the failure to follow the general principle without reasons that would amount to arbitrary exercise of discretion …” [emphasis supplied].
In the instant appeal it is my finding that The Respondent is entitled to costs.
Determination;
40. The court does not find any fault in the way the trial magistrate determined the application.
Order:
The appeal is dismissed with costs.
Dated, signed and delivered at Nairobi this 16th day of December, 2025.
41. ……………………………….
42. J. CHIGITI (SC)
43. JUDGE
2. The Appellant seeks orders that :-
a. This Appeal be allowed.
b. The Ruling delivered on 26th January, 2024 by the Honourable Rawlings Liluma (SRM) and the consequential Orders therefrom be set aside.
c. The Lower Court matter, being NBI CMCC NO. 6064 OF 2019, between the parties herein be re-instated for full hearing and determination.
d. The Appellants be granted the costs of this Appeal.
e. The Court be pleased to make any other suitable order and/or further orders as it may deem fit.
The appellants case:
3. The appellants case is that on or about August, 2019, the Appellants herein instructed the firm of Bill Simbah & Associates Advocates to institute and prosecute, on their behalf, a claim against the Respondent, for payments of the sum of Kshs. 4,369,098/= being an amount owing for service charges.
4. A suit was subsequently filed on 15th August, 2019 being NBI CMCC NO. 6064 OF 2019 between the parties herein.
5. After a long wait, the Appellants, in or about January, 2020, sought an update from their advocates and, vide a letter dated 21st January, 2020 the advocates furnished the Appellants with a Status Report on their matter.
6. The Appellants appeared in Court on 25thAugust, 2022 and on 25th April, 2023 after which the Appellants’ former advocates assured the Appellants that they would communicate to them on the next hearing date.
7. In early March, 2024 upon following up, it was brought to their attention that the matter before the lower Court had been dismissed way back on 14th September, 2023 for nonattendance on their part.
8. It turned out that their former advocates had filed an application seeking to reinstate the matter, however, vide a Ruling of 26th January, 2024 delivered the application was dismissed, thereby precipitating this Appeal.
9. The appellant advances the following grounds of appeal:-
a. THAT the Learned Trial Magistrate erred in law and in fact by failing to consider the reasons given by the Appellants to have the Lower Court matter reinstated and determined to its logical conclusion and, in failing to so consider, the Learned Trial Magistrate delivered the impugned Ruling.
b. THAT the Learned Trial Magistrate erred in law and in fact by failing to take into consideration the points in law and facts given by the Appellants.
c. THAT the Learned Trial Magistrate erred in law and in fact by narrowly framing the issues before him thereby resulting in the wrong decision.
d. THAT the Learned Trial Magistrate erred in fact and law in failing to find that the reasons advanced by the Appellant’s advocates in seeking to have the matter reinstated were legitimate and deserving and that, in any event, the Respondent was unlikely to suffer any prejudice.
e. THAT the Learned Trial Magistrate erred in law and in fact by failing to consider that the main issue of contention before it was yet to be settled and /or determined but still went ahead to deliver the impugned Ruling.
f. THAT the Learned Trial Magistrate misdirected himself and proceeded, in the Ruling, to shift the burden of proof in the negative by implying that the Appellants failed to give satisfactory proof as to why the matter should be reinstated when in fact the Learned Trial Magistrate did not at all analyze the grounds presented by the Appellant’s advocates in support of their application giving rise to the impugned Ruling.
The respondent case;
10. It submits that the trial court fully applied itself to the facts surrounding the case and the law and weighed the same against the reasons advanced by the Appellant for not attending the hearing on 14th September, 2023.
11. It cannot be argued that the trial magistrate shifted the burden of proof to the Appellants to prove why the matter was to be reinstated.
12. It was the Appellants who sought to reinstate the matter and requiring them to discharge the burden of proof for the same cannot be deemed to be a shift of the burden of proof. It has been a long accepted jurisprudence that 'he who alleges something must prove'. Further the burden of proof rests with the party who would suffer prejudice if the said facts were not proved; and in the instant case, this party was clearly the Appellant.
13. The ruling delivered by the trial magistrate on 26th January, 2024 was quite judicious and should not be interfered with.
14. The quintessence of the application leading to the ruling on the 26th day of January, 2024 was that on the 14/09/ 2023, the suit was scheduled for a hearing (of which the Appellant insisted that the same be done physically) which the Appellants did not attend.
15. The Appellants insisted that they logged into virtual court at 9.00am on the material day in order to take time allocation. They alleged that as the court was going on, they experienced a power-outage causing their internet to dip hence breaking their connection.
16. The Appellants insisted that they logged in again however their call dropped again and by the time they logged in again, the learned magistrate had left the session after conducting the hearings.
17. The Respondent urges the court to disregard this assertion because, having insisted on a physical hearing, nothing stopped the Appellants from coming to open court to proceed with the hearing.
18. The Appellants did not furnish the court with any evidence to show that indeed counsel or the Appellants ever attended court on the material day.
19. The matter was actually called out severally, both on the virtual platform and in physical court but neither the Appellants nor their Advocates were available.
20. Moreover, before dismissing the matter for non-attendance at about 12 noon on the said date, the court once again called out the matter both in the virtual platform and in physical court but still, neither the Appellants nor their Advocates were available.
21. The Appellants were well aware of the hearing set for 14/09/2023 and in fact requested that such hearing be done physically.
22. In furtherance of the same, the Appellants' Advocates never attempted to reach out to the Respondent's Advocates which they would have been expected to do if indeed they faced the challenges alleged and for a fact were interested in pursuing the case.
23. Reliance is placed in the case of Elosy Murugi Nyaga v Tharaka Nithi County Government & Tharaka Nithi Public Service Board where the Respondent submitted that the Court should not exercise its discretion in favourof an applicant who failed to attend court for the hearing of his case and gives no satisfactory reasons for the nonattendance then states that he is prejudiced by the dismissal order. NZIOKI WA MAKAU J further stated:
I am mindful of the fact that dismissal of cases in summary procedure such as done here may be draconian but when the occasion calls for such action, the court should not shy away from taking such measures. The motion before me is devoid of merit and is accordingly dismissed with costs to the Respondents."
24. In the case of Mbogo & Another v Shah [1968] EA 93 and Pithon Waweru Maina v Thuku Mugiria [1983] KLR 78, the law on setting aside of ex parte judgment or order was considered in great detail. The principles governing the exercise of the judicial discretion to set aside an ex parte judgment obtained in default of either party to attend the hearing are:
i. Firstly, there are no limits or restrictions on the judge's discretion except that it should be based on such terms as may be just because the main concern of the court is to do justice to the parties.
ii. Secondly, this discretion is intended so to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist the person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice.
iii. A discretionary power should be exercised judicially and not arbitrarily or idiosyncratically
Analysis and Determination;
25. The issues for determination are;
1) Whether the appeal has merit.
2) Who shall bear the costs.
Whether the appeal has merit.
26. In Selle & Another vs. Associated Motor Boat Co Ltd & Others [1968] EA The court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses and thus make due allowance in that respect.
27. In Wachira Karani vs. Bildad Wachira (2016) eKLR as was quoted in the case of David Gicheru v Gicheha Farms Limited & another [2020] eKLR the Court held that: -
a. “The fundamental duty of the Court is to do justice between the parties. It is in turn, fundamental that to that duty, those parties should each be allowed a proper opportunity to put their cases upon the merits of the matter…”
28. In Karinga Gaciani & 11 Others v NdegeKabibi Kimanga & Agnes Wangechi the Supreme court said that it is not enough for a party to simply blame the advocates on record for all manner of transgressions. Courts have always emphasized that parties have a responsibility to show interest in and to follow up on their cases even when they are represented by counsel, and it does not matter whether the party is literate or not.
29. As held in Savings and Loans Ltd V Susan Wanjiru Muritu HCCC No. 397 of 2002;
“It is trite that a case belongs to a litigant and not to her advocate. A litigant has a duty to pursue the prosecution of his or her case. The court cannot set aside dismissal of a suit on the sole ground of a mistake by counsel of the litigant on account of such advocate’s failure to attend court. It is the duty of the litigant to constantly check with her advocate the progress of her case. In the present case, it is apparent that if the defendant had been a diligent litigant, she would have been aware of the dismissal of her previous application for want of prosecution soon after the said dismissal. For the defendant to be prompted to action by the plaintiff’s determination to execute the decree issued in its favour, is an indictment of the defendant. She had been indolent and taking into account her past conduct in the prosecution of the application to set aside the default judgement that was dismissed by the court, it would be a travesty of justice for the court to exercise its discretion in favour of such a litigant.”
30. The Court of Appeal in Kariuki v Wangeci & 7 others (Civil Application E250 of 2023) [2024] KECA 1692 had the following to say;
“On behalf of the respondent, reliance was placed on the authorities in Rajesh Rughani v Fifty Investments Limited & Another [2016] eKLR for the proposition that it is not enough to blame previous counsel on record without an explanation as to the action taken by the litigant to show that he did not condone or collude in the delay; Paul Makokha Okoiti v Equity Bank & Attorney General [2016] eKLR to highlight the position that self- representation is not a panacea or licenceto demand that one must get what he asks; and Nicholas Kiptoo Korir Salat v Independent Electoral and Boundaries Commission & 6 Others [2013] eKLR to highlight the need to respect the rules and timelines.
31. In the case of Habo Agencies Ltd v Wilfred Odhiambo Musingo (2015) eKLR it was stated thus:
“It is not enough for a party in litigation to simply blame the Advocates on record for all manner of transgressions in the conduct of litigation. Courts have always emphasized that parties have a responsibility to show interest in and to follow up their cases even when they are represented by counsel.”
32. The suit informing the appeal before this court was filed on 15th August, 2019 being NBI CMCC NO. 6064 OF 2019.After a long wait, the Appellants, in or about January, 2020, sought an update from their advocates.
33. It’s their case that The Appellants appeared in Court on 25thAugust, 2022 and on 25th April, 2023 after which the Appellants’ former advocates assured the Appellants that they would communicate to them on the next hearing date.
34. In early March, 2024 upon following up, it was brought to their attention that the matter before the lower Court had been dismissed way back on 14th September, 2023 for nonattendance on their part.
35. Their former advocates had filed an application seeking to reinstate the matter, however, vide a Ruling of 26th January, 2024 delivered the application was dismissed, thereby precipitating this Appeal.
36. The Appellants do not explain where they went from 25th April, 2023 after their former advocates assured them that they would communicate to them on the next hearing date up to March, 2024 when they resurfaced. That was almost one year later when their advocate informed them that their case had been dismissed way back on 14th September, 2023 for nonattendance on their part.
37. A litigant who takes almost one year to follow up on their case cannot be said to be diligent .It would appear like they lost interest in their case.
38. Equity does not aid an indolent litigant who seeks to blame their lawyer for their lethargy. The court has looked at the whole case in totality and found that the respondent had their right to move on and not to have an axe hanging over their head indefinitely. There must be an end to litigation. The Appellants have not persuaded the court as to why the appeal should succeed.
Costs;
39. In Joseph Oduor Anode v. Kenya Red Cross Society, Nairobi High Court Civil Suit No. 66 of 2009; [2012] eKLR Odunga, J. the court observed:
“…whereas this Court has the discretion when awarding costs, that discretion must, as usual, be exercised judicially. The first point of reference, with respect to the exercise of discretion is the guiding principles provided under the law. In matters of costs, the general rule as adumbrated in the aforesaid statute [the Civil Procedure Act] is that costs follow the event unless the court is satisfied otherwise. That satisfaction must, however, be patent on record. In other words, where the Court decides not to follow the general principle, the Court is enjoined to give reasons for not doing so.In my view it is the failure to follow the general principle without reasons that would amount to arbitrary exercise of discretion …” [emphasis supplied].
In the instant appeal it is my finding that The Respondent is entitled to costs.
Determination;
40. The court does not find any fault in the way the trial magistrate determined the application.
Order:
The appeal is dismissed with costs.
Dated, signed and delivered at Nairobi this 16th day of December, 2025.
41. ……………………………….
42. J. CHIGITI (SC)
43. JUDGE