1. Before court is a Chamber Summons for Reinstatement of the Succession Cause is dated 25th February, 2026, brought under Order 17 Rule 2 of the Civil Procedure Rules and Rule 73 of the Probate and Administration Rules seeking for reinstatement of this Succession Cause. The grounds are on the body of the application as well as in the replying affidavit.
• That this cause was instituted upon demise of the deceased whom passed on intestate and letters of administration duly issued and yet to be confirmed. The letters of administration were issued to uncles to the applicant as evidenced by SN1.
• The closure of the Cause has disabled the filing and prosecution of necessary applications.
• The beneficiaries were minors as at the time of filing and had no control over the conduct or progress of the proceedings. Upon attaining age of majority, they inquired on the state of the Estate and learnt that there was a notice to show cause why the cause cannot be dismissed as evidenced by SN2.
• The closure of the cause was procedural and not on merits as no determination was ever made as to the proper administration or distribution of the Estate.
• This honorable court is clothed with the discretion to set aside dismissals made for want of prosecution upon sufficient grounds being shown.
• In event the Cause is not reinstated, the beneficiaries stand to suffer prejudice.
Analysis and Determination:
2. In the case of Fran Investments Limited Vs. G4S Security Services Limited [2015] eKLR in which the Court had occasion to consider the aforesaid provision and held the view that: “ Order 17 Rule 2(1) of the Civil Procedure Rules does not require service of notice; it uses the word "give notice". The court may give notice of dismissal through its official website or through the cause list. And those mediums will constitute sufficient notice for purposes of Order 17 Rule 2(1) of the Civil Procedure Rules."
3. In the case of J ohn Nahashon Mwangi Vs Kenya Finance Bank Limited (in Liquidation) [2015] eKLR as follows: “ The fundamental principles of justice are enshrined in the entire Constitution and specifically in Article 159 of the Constitution. Article 50 coupled with article 159 of the Constitution on right to be heard and the constitutional desire to serve substantive justice to all the parties, respectively, constitutes the defined principles which should guide the court in making a decision on such matter of reinstatement of a suit which has been dismissed by the court. These principles were enunciated in a masterly fashion by courts in a legion of decisions which I need not multiply except to state that; courts should sparingly dismiss suits for want of prosecution for dismissal is a draconian act which drives away the plaintiff in an arbitrary manner from the seat of judgment. Such act are comparable only to the proverbial ‘’Sword of the Damocles’’ which should only draw blood where it is absolutely necessary. The same test will apply in an application to reinstate a suit and a court of law should consider whether there are reasonable grounds to reinstate such suit-of course after considering the prejudice that the defendant would suffer if the suit was reinstated against the prejudice the Plaintiff will suffer if the suit is not reinstated.”
4. Reinstatement of a suit is at the discretion of the court, which discretion ought to be exercised in a just manner, as was held in Bilha Ngonyo Isaac Vs. Kembu Farm Ltd & another & another [2018] eKLR , which echoed the decision of the court in Shah Vs. Mbogo & Another (1967) EA 116 (Harris J), where the court stated on the matter of discretion: “The discretion is intended so as to be exercised to avoid injustice or hardship resulting from inadvertence or excusable mistake or error but is not designed to assist a person who has deliberatively sought whether by evasion or otherwise to obstruct or delay the course of justice.”
5. Apaloo, JA in the case of Philip Chemowolo & Another Vs Augustine Kubende, [1982-88] 1 KAR 103 that: “Blunders will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case heard on merit ... the broad equity approach to this matter is that unless there is fraud or intention to overreach, there is no error or default that cannot be put right by payment of costs. The court as is often said, exists for the purpose of deciding the rights of the parties and not for the purpose of imposing discipline.”
6. In summary, reinstatement of suit or cause rests squarely on the discretion of the court. The store of court’s discretion is never exhausted at any given time. It is ever sufficient to whomsoever, who will.
7. Consequently, I allow the Chamber summons dated 25th February, 2026 is allowed as prayed.
Delivered virtually this 15th September, 2026 in the presence of Mugane for the Respondents and Mr Muchiri for counsel for the Applicant.
• That this cause was instituted upon demise of the deceased whom passed on intestate and letters of administration duly issued and yet to be confirmed. The letters of administration were issued to uncles to the applicant as evidenced by SN1.
• The closure of the Cause has disabled the filing and prosecution of necessary applications.
• The beneficiaries were minors as at the time of filing and had no control over the conduct or progress of the proceedings. Upon attaining age of majority, they inquired on the state of the Estate and learnt that there was a notice to show cause why the cause cannot be dismissed as evidenced by SN2.
• The closure of the cause was procedural and not on merits as no determination was ever made as to the proper administration or distribution of the Estate.
• This honorable court is clothed with the discretion to set aside dismissals made for want of prosecution upon sufficient grounds being shown.
• In event the Cause is not reinstated, the beneficiaries stand to suffer prejudice.
Analysis and Determination:
2. In the case of Fran Investments Limited Vs. G4S Security Services Limited [2015] eKLR in which the Court had occasion to consider the aforesaid provision and held the view that: “ Order 17 Rule 2(1) of the Civil Procedure Rules does not require service of notice; it uses the word "give notice". The court may give notice of dismissal through its official website or through the cause list. And those mediums will constitute sufficient notice for purposes of Order 17 Rule 2(1) of the Civil Procedure Rules."
3. In the case of J ohn Nahashon Mwangi Vs Kenya Finance Bank Limited (in Liquidation) [2015] eKLR as follows: “ The fundamental principles of justice are enshrined in the entire Constitution and specifically in Article 159 of the Constitution. Article 50 coupled with article 159 of the Constitution on right to be heard and the constitutional desire to serve substantive justice to all the parties, respectively, constitutes the defined principles which should guide the court in making a decision on such matter of reinstatement of a suit which has been dismissed by the court. These principles were enunciated in a masterly fashion by courts in a legion of decisions which I need not multiply except to state that; courts should sparingly dismiss suits for want of prosecution for dismissal is a draconian act which drives away the plaintiff in an arbitrary manner from the seat of judgment. Such act are comparable only to the proverbial ‘’Sword of the Damocles’’ which should only draw blood where it is absolutely necessary. The same test will apply in an application to reinstate a suit and a court of law should consider whether there are reasonable grounds to reinstate such suit-of course after considering the prejudice that the defendant would suffer if the suit was reinstated against the prejudice the Plaintiff will suffer if the suit is not reinstated.”
4. Reinstatement of a suit is at the discretion of the court, which discretion ought to be exercised in a just manner, as was held in Bilha Ngonyo Isaac Vs. Kembu Farm Ltd & another & another [2018] eKLR , which echoed the decision of the court in Shah Vs. Mbogo & Another (1967) EA 116 (Harris J), where the court stated on the matter of discretion: “The discretion is intended so as to be exercised to avoid injustice or hardship resulting from inadvertence or excusable mistake or error but is not designed to assist a person who has deliberatively sought whether by evasion or otherwise to obstruct or delay the course of justice.”
5. Apaloo, JA in the case of Philip Chemowolo & Another Vs Augustine Kubende, [1982-88] 1 KAR 103 that: “Blunders will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case heard on merit ... the broad equity approach to this matter is that unless there is fraud or intention to overreach, there is no error or default that cannot be put right by payment of costs. The court as is often said, exists for the purpose of deciding the rights of the parties and not for the purpose of imposing discipline.”
6. In summary, reinstatement of suit or cause rests squarely on the discretion of the court. The store of court’s discretion is never exhausted at any given time. It is ever sufficient to whomsoever, who will.
7. Consequently, I allow the Chamber summons dated 25th February, 2026 is allowed as prayed.
Delivered virtually this 15th September, 2026 in the presence of Mugane for the Respondents and Mr Muchiri for counsel for the Applicant.