1. This is an appeal from the ruling of Hon. P.Muholi, Principal Magistrate, delivered on 24 th August 2024 in Githunguri CMCC No.746 of 1997. The Appellant was the defendant in the lower court. The impugned application allowed the respondent’s application and reinstated the suit, 26 years after the same was instituted.
2. The appellant filed a memorandum of appeal dated 20 th September 2023 seeking the following orders:
i) That the appeal be allowed and the ruling dated 24 th August 2023 be set aside, vacated forthwith.
ii) That the honourable court do issue directions reversing the order emanating for the ruling dated 24 th August 2023 which order reinstated the suit.
iii) That the suit be deemed as dismissed for want of prosecution.
iv). That the cost of this appeal be borne by the Respondent.
v) Any further relief that the honourable court deems fit in the interest of justice.
3. The memorandum is anchored on the following grounds:-
i) That the learned magistrate erred in law and fact by failing to evaluate the evidence in its totality and to consider the submissions by the Appellant and thereby arrived at the wrong conclusion of dismissing the Appellants case and reinstating the subject suit which has been dismissed severally or want of prosecution.
ii) That the learned magistrate erred in law and fact in failing to find that the Appellants stand to suffer additional prejudice which is substantial and results to 1) impending fair trial; 2)aggravated costs; 3)specific hardships and that the 26 year delay has worsen the Appellants position in the suit.
iii) That the Learned Trial Magistrate erred in law and fact in failing to take judicial notice and consideration of the prejudice occasioned upon the Appellant due to unavailability of the Appellants witnesses, and the fact that the Appellants key witnesses had suffered memory loss or did not have a clear recollection of the events leading to the suit.
iv) That the learned magistrate erred in law and fact in failing to appreciate the Appellants assertion that the nature of the suit required that it be promptly prosecuted when the evidence was fresh and the witnesses were available and able to clearly recollect the facts of the case.
v) That the learned magistrate erred in law and fact in failing to find that justice will not be done in the case due to the prolonged delay on the part of the plaintiff/Respondent which delay and inaction has resulted in intolerable prejudice.
vi) That the learned magistrate erred in law and fact by failing to exercise his discretion properly, fairly and judiciously in considering the Appellants submissions on the facts and evidence in support.
vii) That the learned magistrate erred in law and fact in relying on extraneous matters in allowing the Respondents Application dated 21 st October 2022.
viii) That the learned magistrate did not take into account all the pertinent matter in allowing the Respondents application dated 21 st October 2022.
ix) That the whole ruling and order of the Principal Magistrate is against the pleadings, submissions and the law.
Background.
4. The Respondent instituted the primary suit Githunguri CMCC No. 746 of 1997 Wambui Kamau (Suing as the personal Representative of Edward Kamau Kimani vs Honourable Martha Wangari Karua on 6 th September 1997. In 2001, vide an application dated 21 st May 2001, the Appellants Advocates on record at the time sought the dismissal of the suit on account of the respondents failure to prosecute the matter since the 28 th April 1999 when the matter was last before court. The court declined to grant the application, and granted the Respondent an opportunity to prosecute her claim.
5. The respondent did not take any steps to prosecute the suit from the year 2003, and the suit was dismissed on the 1st April 2021 for want of prosecution.
6. That more than one year after the dismissal of the suit, the Respondent filed a Notice of Motion dated 21 st October dated 2022 seeking an order for the reinstatement of the suit, which application was opposed by the appellant. Upon hearing the application dated 21 st October 2022, the trial magistrate, delivered a ruling dated 21 st October 2022 and reinstated the suit, 26 years after institution of the suit.
7. The Appellants appeal is, aggrieved with the decision to reinstate the suit subsequently filed her memorandum of appeal seeking to impugn the entire ruling.
8. This being a first appeal, this court must re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence firsthand. In the case of Mbogo and Another v Shah [1968] EA 93, the court stated :
“…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”
9. Directions, on the disposal of the appeal, were given for canvassing of the appeal by way of written submissions. I have only seen written submissions by the appellants, which I have read and noted the arguments made.
Appellant’s submissions
10. The appellant submitted that the learned trial magistrate failed to appreciate that fact that 26 years delay by the respondent was inordinate, unreasonable and inexcusable. That the court failed to consider the grave injustice that would be occasioned to the appellant and that a fair trial cannot be achieved, further that the trial magistrate failed to consider that the appellant’s motor vehicle was insured by United Insurance Company who had instructed the law Firm of Mbari Koni Advocates, both of which are no longer operational, as a result of which the relevant documentation with regard to this claim is not available to the appellant as such, great prejudice would be occasioned to the appellant die to unavailability of relevant documentation, witnesses and the fact that the appellants witnesses may not have a clear recollection of the events leading to the accident which occurred 26 years ago.
11. The appellant invited the court to consider the fact the respondent had appointed the firm of Wahome & Gichohi Advocates to represent her in the matter in the year 2004. That she admitted that she did not follow up with her advocates on the progress of the suits for 18 years until the year 2022.
Respondent’s submissions.
12. The respondent filed her submissions dated 28 th July 2025, and gave a background in regard to the proceedings in this case. According to the respondent, any lapse of time in prosecuting the case has been explained, and the trial magistrate exercised his discretion judiciously. That the case before court involved loss of a life, where the respondent lost her husband and that justice can still be served without occasioning prejudice to either parties.
13. That the respondent has consistently taken steps to progress her case whenever she became aware of its status. That the appellant had not produced any documentary evidence to show demonstrate any difficulty in retrieving relevant documents or securing witnesses.
14. That at the time of her husband’s death, she had young children whom she struggled to raise on her own. Now that she is elderly and her children are grown, she has started to pursue justice for her family.
Analysis and determination.
15. I have considered the submissions and the authorities filed by parties in support of their respective submissions.
16. The only issue for me to consider is whether the suit at the trial court should have been reinstated.
17. The law on reinstatement of suits dismissed is Order 12 Rule 7 of the Civil Procedure Rules, where the court may set aside the dismissal order, on such terms as may be just. The power to reinstate is discretionary.
18. Whether to reinstate a dismissed suit would call for exercise of discretion in line with Articles 50 and 159 of the Constitution , and the oxygen principle in sections 1, 1A and 3A of the Civil Procedure Act , Cap 21, Laws of Kenya. These were discussed in John Nahashon Mwangi v Kenya Finance Bank Limited (in Liquidation) [2015] eKLR [2015] KEHC 6789 (KLR) (Gikonyo, J), where it was stated that the fundamental principles of justice are enshrined in Article 159 of the Constitution , coupled with Article 50, with respect to the right to be heard, and to serve substantive justice to all. It was underscored that those principles ought to be factored when considering reinstatement of dismissed suits, bearing in mind that dismissal of suits is draconian.
19. In the case of Olumbe v Obanyi [2025] KEHC 5386 (KLR), Justice WM Musyoka held as follows:-
“Dismissal of suits for want of prosecution turns largely on the delay in getting the suit prosecuted. The overriding principle is the mantra that there ought to be no delay in the dispensation of justice, based on the maxim that justice delayed is justice denied. The justification behind the remedy, of dismissal of suits for want of prosecution, is that litigation must be expedited and concluded by the parties. There can be no justice in filing a cause in court, and then leave it parked there, unprosecuted, hanging over the head of the other party like the famed sword of Damocles. Dismissals help in clearing backlogs in court, created by parties who lack appetite to prosecute their cases. Pendency of unmoving cases create a logjam, which generates a crisis of public mistrust and lack of confidence in the Judiciary. Dismissals reduce the ever-increasing caseloads, and the backlogs, caused by stale suits clogging the judicial system.”
20. The courts have set out the factors that are to be taken into account, in such cases. In Ivita v Kyumbu [1984] KLR 441 (Chesoni, J), the considerations were said to include whether the delay is prolonged and inexcusable; whether justice can be done despite the delay; justice is justice for both sides, and so the positions of both sides must be considered; whether the other side would be prejudiced, by justice not being done by the prolonged delay; and the reasons given for the delay.
21. The respondents appear to blame their Advocates, hence their plea that the sins of the Advocates ought not be visited on them, founded on Pithon Waweru Maina v Thuka Mugiria [1983] eKLR [1983] KECA 117 (KLR) (Potter, Kneller JJA & Chesoni Ag JA) and Patriotic Guards Limited v James Kipchirchir Sambu [2018] eKLR (Waki, Warsame & Makhandia, JJA). However, there is also the other argument, stated in such cases as Savings & Loan Limited v Susan Wanjiru Muritu Nairobi Milimani HCCC No. 397 of 2002 (Kimaru, J)(unreported) and Duale Mary Anne Gurre v Amina Mohamed Mahamood & another [2014] eKLR (JM Mutungi, J), that the suit belongs to the litigant, who has a duty to pursue prosecution of their case, and to constantly check with their Advocates on the progress of the matter.
22. The case was in limbo, between 2003 to 1 st April 2021, when it was dismissed. The appellants have provided no proof of the efforts they made to ensure that their Advocates progressed the matter, after filing it, to pre-trial and eventually to full trial. They only became active after the dismissal. I do not think the appellants did much to aid their case. The respondent stated she did not follow up on the progress of her case until 22 nd June 2022, when she perused the court file
23. In the case of Ivita – Versus - Kyumbu [1984] KLR 441 the Court laid down principles for issuance of an order of dismissal of suit for want of prosecution. It stated:-
“The test is whether the delay is prolonged and inexcusable, and, if it is, can justice be done despite such delay. Justice is justice to both the Plaintiff and Defendant; so both parties to the suit must be considered and the position of the judge too, because it is no easy task for the documents, and, or witnesses may be missing and evidence is weak due to the disappearance of human memory resulting from lapse of time. The Defendant must however satisfy the court that it will be prejudiced by the delay or even that the plaintiff will be prejudiced. He must show that justice will not be done in the case due to the prolonged delay on the part of the plaintiff before the court will exercise its discretion in his favour and dismiss the action for want of prosecution. Thus, even if delay is prolonged if the court is satisfied with the plaintiff's excuse for the delay, the action will not be dismissed, but it will be ordered that it be set down for hearing at the earliest available time.”
24. The appellant filed an earlier application seeking the dismissal of the respondent’s case which was declined vide a ruling issued on 25 th July 2001. The respondent did not take any steps even after being granted an opportunity by the court to prosecute her case.
25. The excuse by the respondent that she was taking care of her children single handedly after the demise of her late husband, hence the failure to pursue her case is not excusable. The position of the appellant too, must be considered. Litigation must be expedited, and concluded by parties who come to court for seeking justice.
26. I am persuaded, therefore, that the trial court improperly exercised discretion, in reinstating the suit. The delay on the part of the Respondent was manifestly inordinate. The reasons given for the delay are not excusable, and the appellant has demonstrated to court that she will suffer prejudice if the orders reinstating the suit are allowed to stand.
27. Overall, I find merit in the appeal. I, accordingly, allow it. I hereby do issue directions reversing the order emanating for the ruling dated 24 th August 2023 which order reinstated the suit. The suit be deemed as dismissed for want of prosecution.
28. Each party to bear their own costs.
DELIVERED, DATED, AND SIGNED ON THIS 17 TH DAY OF SEPTEMBER, 2026.
JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.
MARTHA MUTUKU- JUDGE
In the presence of: -
Miss Mwangi for the Appellant.
No appearance for Respondent.
Court Assistant- Mr. Kibet.
KIAMBU HCCCA NO. E361 OF 20231
2. The appellant filed a memorandum of appeal dated 20 th September 2023 seeking the following orders:
i) That the appeal be allowed and the ruling dated 24 th August 2023 be set aside, vacated forthwith.
ii) That the honourable court do issue directions reversing the order emanating for the ruling dated 24 th August 2023 which order reinstated the suit.
iii) That the suit be deemed as dismissed for want of prosecution.
iv). That the cost of this appeal be borne by the Respondent.
v) Any further relief that the honourable court deems fit in the interest of justice.
3. The memorandum is anchored on the following grounds:-
i) That the learned magistrate erred in law and fact by failing to evaluate the evidence in its totality and to consider the submissions by the Appellant and thereby arrived at the wrong conclusion of dismissing the Appellants case and reinstating the subject suit which has been dismissed severally or want of prosecution.
ii) That the learned magistrate erred in law and fact in failing to find that the Appellants stand to suffer additional prejudice which is substantial and results to 1) impending fair trial; 2)aggravated costs; 3)specific hardships and that the 26 year delay has worsen the Appellants position in the suit.
iii) That the Learned Trial Magistrate erred in law and fact in failing to take judicial notice and consideration of the prejudice occasioned upon the Appellant due to unavailability of the Appellants witnesses, and the fact that the Appellants key witnesses had suffered memory loss or did not have a clear recollection of the events leading to the suit.
iv) That the learned magistrate erred in law and fact in failing to appreciate the Appellants assertion that the nature of the suit required that it be promptly prosecuted when the evidence was fresh and the witnesses were available and able to clearly recollect the facts of the case.
v) That the learned magistrate erred in law and fact in failing to find that justice will not be done in the case due to the prolonged delay on the part of the plaintiff/Respondent which delay and inaction has resulted in intolerable prejudice.
vi) That the learned magistrate erred in law and fact by failing to exercise his discretion properly, fairly and judiciously in considering the Appellants submissions on the facts and evidence in support.
vii) That the learned magistrate erred in law and fact in relying on extraneous matters in allowing the Respondents Application dated 21 st October 2022.
viii) That the learned magistrate did not take into account all the pertinent matter in allowing the Respondents application dated 21 st October 2022.
ix) That the whole ruling and order of the Principal Magistrate is against the pleadings, submissions and the law.
Background.
4. The Respondent instituted the primary suit Githunguri CMCC No. 746 of 1997 Wambui Kamau (Suing as the personal Representative of Edward Kamau Kimani vs Honourable Martha Wangari Karua on 6 th September 1997. In 2001, vide an application dated 21 st May 2001, the Appellants Advocates on record at the time sought the dismissal of the suit on account of the respondents failure to prosecute the matter since the 28 th April 1999 when the matter was last before court. The court declined to grant the application, and granted the Respondent an opportunity to prosecute her claim.
5. The respondent did not take any steps to prosecute the suit from the year 2003, and the suit was dismissed on the 1st April 2021 for want of prosecution.
6. That more than one year after the dismissal of the suit, the Respondent filed a Notice of Motion dated 21 st October dated 2022 seeking an order for the reinstatement of the suit, which application was opposed by the appellant. Upon hearing the application dated 21 st October 2022, the trial magistrate, delivered a ruling dated 21 st October 2022 and reinstated the suit, 26 years after institution of the suit.
7. The Appellants appeal is, aggrieved with the decision to reinstate the suit subsequently filed her memorandum of appeal seeking to impugn the entire ruling.
8. This being a first appeal, this court must re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence firsthand. In the case of Mbogo and Another v Shah [1968] EA 93, the court stated :
“…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”
9. Directions, on the disposal of the appeal, were given for canvassing of the appeal by way of written submissions. I have only seen written submissions by the appellants, which I have read and noted the arguments made.
Appellant’s submissions
10. The appellant submitted that the learned trial magistrate failed to appreciate that fact that 26 years delay by the respondent was inordinate, unreasonable and inexcusable. That the court failed to consider the grave injustice that would be occasioned to the appellant and that a fair trial cannot be achieved, further that the trial magistrate failed to consider that the appellant’s motor vehicle was insured by United Insurance Company who had instructed the law Firm of Mbari Koni Advocates, both of which are no longer operational, as a result of which the relevant documentation with regard to this claim is not available to the appellant as such, great prejudice would be occasioned to the appellant die to unavailability of relevant documentation, witnesses and the fact that the appellants witnesses may not have a clear recollection of the events leading to the accident which occurred 26 years ago.
11. The appellant invited the court to consider the fact the respondent had appointed the firm of Wahome & Gichohi Advocates to represent her in the matter in the year 2004. That she admitted that she did not follow up with her advocates on the progress of the suits for 18 years until the year 2022.
Respondent’s submissions.
12. The respondent filed her submissions dated 28 th July 2025, and gave a background in regard to the proceedings in this case. According to the respondent, any lapse of time in prosecuting the case has been explained, and the trial magistrate exercised his discretion judiciously. That the case before court involved loss of a life, where the respondent lost her husband and that justice can still be served without occasioning prejudice to either parties.
13. That the respondent has consistently taken steps to progress her case whenever she became aware of its status. That the appellant had not produced any documentary evidence to show demonstrate any difficulty in retrieving relevant documents or securing witnesses.
14. That at the time of her husband’s death, she had young children whom she struggled to raise on her own. Now that she is elderly and her children are grown, she has started to pursue justice for her family.
Analysis and determination.
15. I have considered the submissions and the authorities filed by parties in support of their respective submissions.
16. The only issue for me to consider is whether the suit at the trial court should have been reinstated.
17. The law on reinstatement of suits dismissed is Order 12 Rule 7 of the Civil Procedure Rules, where the court may set aside the dismissal order, on such terms as may be just. The power to reinstate is discretionary.
18. Whether to reinstate a dismissed suit would call for exercise of discretion in line with Articles 50 and 159 of the Constitution , and the oxygen principle in sections 1, 1A and 3A of the Civil Procedure Act , Cap 21, Laws of Kenya. These were discussed in John Nahashon Mwangi v Kenya Finance Bank Limited (in Liquidation) [2015] eKLR [2015] KEHC 6789 (KLR) (Gikonyo, J), where it was stated that the fundamental principles of justice are enshrined in Article 159 of the Constitution , coupled with Article 50, with respect to the right to be heard, and to serve substantive justice to all. It was underscored that those principles ought to be factored when considering reinstatement of dismissed suits, bearing in mind that dismissal of suits is draconian.
19. In the case of Olumbe v Obanyi [2025] KEHC 5386 (KLR), Justice WM Musyoka held as follows:-
“Dismissal of suits for want of prosecution turns largely on the delay in getting the suit prosecuted. The overriding principle is the mantra that there ought to be no delay in the dispensation of justice, based on the maxim that justice delayed is justice denied. The justification behind the remedy, of dismissal of suits for want of prosecution, is that litigation must be expedited and concluded by the parties. There can be no justice in filing a cause in court, and then leave it parked there, unprosecuted, hanging over the head of the other party like the famed sword of Damocles. Dismissals help in clearing backlogs in court, created by parties who lack appetite to prosecute their cases. Pendency of unmoving cases create a logjam, which generates a crisis of public mistrust and lack of confidence in the Judiciary. Dismissals reduce the ever-increasing caseloads, and the backlogs, caused by stale suits clogging the judicial system.”
20. The courts have set out the factors that are to be taken into account, in such cases. In Ivita v Kyumbu [1984] KLR 441 (Chesoni, J), the considerations were said to include whether the delay is prolonged and inexcusable; whether justice can be done despite the delay; justice is justice for both sides, and so the positions of both sides must be considered; whether the other side would be prejudiced, by justice not being done by the prolonged delay; and the reasons given for the delay.
21. The respondents appear to blame their Advocates, hence their plea that the sins of the Advocates ought not be visited on them, founded on Pithon Waweru Maina v Thuka Mugiria [1983] eKLR [1983] KECA 117 (KLR) (Potter, Kneller JJA & Chesoni Ag JA) and Patriotic Guards Limited v James Kipchirchir Sambu [2018] eKLR (Waki, Warsame & Makhandia, JJA). However, there is also the other argument, stated in such cases as Savings & Loan Limited v Susan Wanjiru Muritu Nairobi Milimani HCCC No. 397 of 2002 (Kimaru, J)(unreported) and Duale Mary Anne Gurre v Amina Mohamed Mahamood & another [2014] eKLR (JM Mutungi, J), that the suit belongs to the litigant, who has a duty to pursue prosecution of their case, and to constantly check with their Advocates on the progress of the matter.
22. The case was in limbo, between 2003 to 1 st April 2021, when it was dismissed. The appellants have provided no proof of the efforts they made to ensure that their Advocates progressed the matter, after filing it, to pre-trial and eventually to full trial. They only became active after the dismissal. I do not think the appellants did much to aid their case. The respondent stated she did not follow up on the progress of her case until 22 nd June 2022, when she perused the court file
23. In the case of Ivita – Versus - Kyumbu [1984] KLR 441 the Court laid down principles for issuance of an order of dismissal of suit for want of prosecution. It stated:-
“The test is whether the delay is prolonged and inexcusable, and, if it is, can justice be done despite such delay. Justice is justice to both the Plaintiff and Defendant; so both parties to the suit must be considered and the position of the judge too, because it is no easy task for the documents, and, or witnesses may be missing and evidence is weak due to the disappearance of human memory resulting from lapse of time. The Defendant must however satisfy the court that it will be prejudiced by the delay or even that the plaintiff will be prejudiced. He must show that justice will not be done in the case due to the prolonged delay on the part of the plaintiff before the court will exercise its discretion in his favour and dismiss the action for want of prosecution. Thus, even if delay is prolonged if the court is satisfied with the plaintiff's excuse for the delay, the action will not be dismissed, but it will be ordered that it be set down for hearing at the earliest available time.”
24. The appellant filed an earlier application seeking the dismissal of the respondent’s case which was declined vide a ruling issued on 25 th July 2001. The respondent did not take any steps even after being granted an opportunity by the court to prosecute her case.
25. The excuse by the respondent that she was taking care of her children single handedly after the demise of her late husband, hence the failure to pursue her case is not excusable. The position of the appellant too, must be considered. Litigation must be expedited, and concluded by parties who come to court for seeking justice.
26. I am persuaded, therefore, that the trial court improperly exercised discretion, in reinstating the suit. The delay on the part of the Respondent was manifestly inordinate. The reasons given for the delay are not excusable, and the appellant has demonstrated to court that she will suffer prejudice if the orders reinstating the suit are allowed to stand.
27. Overall, I find merit in the appeal. I, accordingly, allow it. I hereby do issue directions reversing the order emanating for the ruling dated 24 th August 2023 which order reinstated the suit. The suit be deemed as dismissed for want of prosecution.
28. Each party to bear their own costs.
DELIVERED, DATED, AND SIGNED ON THIS 17 TH DAY OF SEPTEMBER, 2026.
JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.
MARTHA MUTUKU- JUDGE
In the presence of: -
Miss Mwangi for the Appellant.
No appearance for Respondent.
Court Assistant- Mr. Kibet.
KIAMBU HCCCA NO. E361 OF 20231