1. Before this Court for determination is a Notice of Motion dated 27.6.25 seeking:
1. Spent
2. THAT this Honourable be pleased to stay execution and decree of the judgment and decree in Malindi Chief Magistrate's Court Civil Suit No. E173 of 2019 Chengo Ali Kagohu alias Chengo Kalu -Vs- Ishaaq Buya pending the hearing and determination of this application.
3. THAT the Honorable Court be pleased to set aside the order for dismissal of this Appeal matter made on 8th April 2025 and reinstate the same for prosecution.
4. THAT costs of this application to be in the cause.
2. The Appellant seeks the reinstatement of his appeal which was on 8.4.25 dismissed for non-attendance and apparent lack of interest in prosecuting the same.
3. The Appellant’s case is that he filed the appeal on 29.6.23; that by a letter dated 14.7.23 to the In Charge, Civil Registry the Appellant requested typed copies of the proceedings and the same was paid for; that typed proceedings were received on 17.10.23 and the record of appeal was filed and served upon the Respondent; that submissions were filed and served on 4.12.23; that thereafter, the Appellant tried contacting the high court registry to fix a date for the appeal; that in spite of various enquiries, there was no communication from the High Court registry on the same nor was any notice served on the Appellant; that despite the Respondent's advocates attending court on various dates and even a notice to show cause issued, they did not serve the notice upon the Appellant; that the Respondent never served his submissions on the Appellant.
4. The Appellant further stated that he came to learn of the dismissal of the appeal on 27.6.25 from the Judiciary Public Information e-Kiosk necessitating this application; that the absence of the Appellant in court on 8.4.25 was not deliberate, contributed to or caused by the Appellant; that the case tracking system indicates that the matter was due for mention on 8.4.25 hence substantive orders of dismissal could not be made; that the Appellant having already filed its record of appeal and submissions when the appeal was dismissed, it cannot be said the appeal was unprosecuted; that it is in the interest of justice that this appeal is reinstated for prosecution; that the Application is made timeously and in good faith; that the Respondent will not suffer any prejudice or any damage that cannot be compensated by way of costs in the cause of the appeal if this application is allowed; that mistakes of an advocate should not be visited on an innocent litigant.
5. The Respondent opposed the Application through a replying affidavit sworn on 15.7.25 by his counsel, Geoffrey Kilonzo. He averred that the Appellant is misleading the Court as he was all along aware of the dismissal of the appeal. The Appellant was served with the bill of costs and taxation notice dated 16.5.25 and even filed submissions in opposition thereto. Further, that the Application is overtaken by events as the bill of costs was taxed on 15.7.25. Counsel further stated that the Appellant has not explained his failure to attend court and that the Court should not aid the indolent. The Respondent urged that the Application be dismissed with costs.
6. Parties filed their written submissions which I have duly considered.
7. The law relating to setting aside judgment or dismissal is found in Order 12 Rule 7 of the Civil Procedure Rules, which provides:
Where under this Order judgment has been entered or the suit has been dismissed, the court, on application, may set aside or vary the judgment or order upon such terms as may be just.
8. The Orders sought by the Applicant are discretionary. The rule does not provide the conditions that must be met for reinstatement of dismissed suits. The Court thus has wide discretion to grant orders on terms. Such terms must however be just.
9. The record shows that the Appeal was filed on 29.6.23 while the record of appeal was filed on 17.10.23. The Appeal was admitted on 2.7.24 and was to be mentioned on 7.10.24 for directions. On that day however, the Appellant was absent. The Court directed that a notice to show cause to issue and fixed a mention for 11.12.24. The matter came up again on 8.4.25 and the Appellant was absent, again. The Court proceeded to dismiss the appeal as the Appellant appeared to be no longer interested in the same.
10. The Respondent’s counsel has stated that following the dismissal of the appeal, the bill of costs was filed and taxed and that the Appellant participated in the same by filing submissions. The said submissions are exhibited. This was not disputed by the Appellant.
11. Court orders and directions are not given in vain. Parties are required to comply with whatever orders and directions given by the court. In the case of Tana Teachers’ Cooperative and Credit Society Limited v Andriano Muchiri [2018] eKLR, the Court of Appeal considered an appeal from an order dismissing an appeal for non-compliance with directions of the court and had this to say:
13. On the whole therefore, the first appellate court was right in finding that the appellant had been indolent and this court has been given no reason to interfere with that finding. We are mindful of the fact that the original suit giving rise to these proceedings was filed in 1994. The respondent has yet to enjoy the fruits of her judgment 24 years down the line. Although parties are always in haste to invoke the “overriding principle” when seeking favourable exercise of discretion by the courts or covering up for some infractions they may have committed, they tend to forget that Section 1A (3) Civil Procedure Act as well as section 3A Appellate Jurisdiction Act enjoins them to assist the court in ensuring that court directions are complied with and that justice is dispensed expeditiously. A party cannot egregiously fail or refuse to comply with directions of the court claiming that the said directions were salutary and not accompanied by any sanctions and hope to seek refuge in the overriding principle. That in our view amounts to gross abuse of court process. There must be an end to litigation and it behoves this Court to tell the appellant that its journey ends at this point.
12. Flowing from the cited decision, it can be seen that the law enjoins parties to assist the court in ensuring that court directions are complied with and that justice is dispensed expeditiously. Parties were on 2.7.24 directed to attend Court on 7.10.24 for directions on the appeal. As indicated herein, the Appellant did not attend court on that date. No reason has been given for non attendance on 7.10.24 and subsequently on 8.4.25. After filing the record of appeal on 17.10.23, the Appellant took no further action in the matter and contrary to his claim, no submissions on the appeal were filed.
13. In Peter Kipkurui Chemoiwo v Richard Chepsergon [2021] KECA 979 (KLR), the Court of Appeal considered an appeal against dismissal order and stated:
In analyzing the matter, the learned Judge correctly appreciated the principles in dismissing an appeal for want of prosecution as espoused in various cases such as in Ivita –v- Kyumba [1984] KLR 441; that the test to be applied by the courts in an application for dismissal of a suit for want of prosecution is whether the delay is prolonged and inexcusable, and if it is, whether the delay could be excused and justice can be done despite the delay. In view of this the learned Judge concluded that the appellant had not taken any steps to prosecute his appeal since the matter was concluded before the lower court in the year 2012. The learned Judge further held that that the appellant had also filed an application for stay of execution which was never prosecuted yet the appellant enjoyed status quo orders to the detriment of the respondent who was unable to enjoy the fruits of his judgment allowing him exclusive possession of the land.
From our own assessment of the matter, the learned Judge did not err. The appellant filed his memorandum of appeal on 15th September, 2012, filed an application for stay of execution on 2nd October, 2012, obtained interim orders maintaining status quo on 3rd October, 2012 pending hearing and determination of the application and filed the record of appeal on 5th July, 2013. Thereafter, the appellant made no effort to prosecute his appeal and was only roused from slumber when the respondent filed his application to dismiss the appeal for want for prosecution.
14. I have considered the circumstances of the case. To begin with, the Appellant did not comply with the directions to attend Court for directions. No reason has been given for this failure. Further, after filing his appeal on 29.6.23, the Appellant made no effort to prosecute the same and was only roused from slumber after the appeal was dismissed. The Appellant has stated that he became aware of the dismissal of the appeal on 27.6.25 from the Judiciary Public Information e-Kiosk. This cannot be true as the Appellant filed submissions dated 21.5.25 on the Respondent’s bill of costs dated 11.4.25 which was filed following the dismissal of the appeal. It baffles the Court that the Appellant would respond to a bill of costs in respect of a concluded matter and 2 months later file an application to reinstate the same matter, claiming he was unaware of the dismissal. This is clearly an attempt to mislead the Court.
15. The Appellant’s conduct of failing to attend Court as directed and indolence should not be countenanced. By his conduct, the Appellant derogated from the overriding objective of the expeditious, fair, just proportionate and economic disposal of the matter herein. This Court should therefore not provide succour and cover to the Appellant given his conduct. (see Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 6 others [2013] eKLR).
16. In the end and in view of the foregoing, this Court declines to exercise its discretion in the Appellant’s favour. I accordingly dismiss the Application dated 27.6.25. The Respondent shall have costs.
DATED, SIGNED and DELIVERED at Malindi this 13th day of March 2026
1. Spent
2. THAT this Honourable be pleased to stay execution and decree of the judgment and decree in Malindi Chief Magistrate's Court Civil Suit No. E173 of 2019 Chengo Ali Kagohu alias Chengo Kalu -Vs- Ishaaq Buya pending the hearing and determination of this application.
3. THAT the Honorable Court be pleased to set aside the order for dismissal of this Appeal matter made on 8th April 2025 and reinstate the same for prosecution.
4. THAT costs of this application to be in the cause.
2. The Appellant seeks the reinstatement of his appeal which was on 8.4.25 dismissed for non-attendance and apparent lack of interest in prosecuting the same.
3. The Appellant’s case is that he filed the appeal on 29.6.23; that by a letter dated 14.7.23 to the In Charge, Civil Registry the Appellant requested typed copies of the proceedings and the same was paid for; that typed proceedings were received on 17.10.23 and the record of appeal was filed and served upon the Respondent; that submissions were filed and served on 4.12.23; that thereafter, the Appellant tried contacting the high court registry to fix a date for the appeal; that in spite of various enquiries, there was no communication from the High Court registry on the same nor was any notice served on the Appellant; that despite the Respondent's advocates attending court on various dates and even a notice to show cause issued, they did not serve the notice upon the Appellant; that the Respondent never served his submissions on the Appellant.
4. The Appellant further stated that he came to learn of the dismissal of the appeal on 27.6.25 from the Judiciary Public Information e-Kiosk necessitating this application; that the absence of the Appellant in court on 8.4.25 was not deliberate, contributed to or caused by the Appellant; that the case tracking system indicates that the matter was due for mention on 8.4.25 hence substantive orders of dismissal could not be made; that the Appellant having already filed its record of appeal and submissions when the appeal was dismissed, it cannot be said the appeal was unprosecuted; that it is in the interest of justice that this appeal is reinstated for prosecution; that the Application is made timeously and in good faith; that the Respondent will not suffer any prejudice or any damage that cannot be compensated by way of costs in the cause of the appeal if this application is allowed; that mistakes of an advocate should not be visited on an innocent litigant.
5. The Respondent opposed the Application through a replying affidavit sworn on 15.7.25 by his counsel, Geoffrey Kilonzo. He averred that the Appellant is misleading the Court as he was all along aware of the dismissal of the appeal. The Appellant was served with the bill of costs and taxation notice dated 16.5.25 and even filed submissions in opposition thereto. Further, that the Application is overtaken by events as the bill of costs was taxed on 15.7.25. Counsel further stated that the Appellant has not explained his failure to attend court and that the Court should not aid the indolent. The Respondent urged that the Application be dismissed with costs.
6. Parties filed their written submissions which I have duly considered.
7. The law relating to setting aside judgment or dismissal is found in Order 12 Rule 7 of the Civil Procedure Rules, which provides:
Where under this Order judgment has been entered or the suit has been dismissed, the court, on application, may set aside or vary the judgment or order upon such terms as may be just.
8. The Orders sought by the Applicant are discretionary. The rule does not provide the conditions that must be met for reinstatement of dismissed suits. The Court thus has wide discretion to grant orders on terms. Such terms must however be just.
9. The record shows that the Appeal was filed on 29.6.23 while the record of appeal was filed on 17.10.23. The Appeal was admitted on 2.7.24 and was to be mentioned on 7.10.24 for directions. On that day however, the Appellant was absent. The Court directed that a notice to show cause to issue and fixed a mention for 11.12.24. The matter came up again on 8.4.25 and the Appellant was absent, again. The Court proceeded to dismiss the appeal as the Appellant appeared to be no longer interested in the same.
10. The Respondent’s counsel has stated that following the dismissal of the appeal, the bill of costs was filed and taxed and that the Appellant participated in the same by filing submissions. The said submissions are exhibited. This was not disputed by the Appellant.
11. Court orders and directions are not given in vain. Parties are required to comply with whatever orders and directions given by the court. In the case of Tana Teachers’ Cooperative and Credit Society Limited v Andriano Muchiri [2018] eKLR, the Court of Appeal considered an appeal from an order dismissing an appeal for non-compliance with directions of the court and had this to say:
13. On the whole therefore, the first appellate court was right in finding that the appellant had been indolent and this court has been given no reason to interfere with that finding. We are mindful of the fact that the original suit giving rise to these proceedings was filed in 1994. The respondent has yet to enjoy the fruits of her judgment 24 years down the line. Although parties are always in haste to invoke the “overriding principle” when seeking favourable exercise of discretion by the courts or covering up for some infractions they may have committed, they tend to forget that Section 1A (3) Civil Procedure Act as well as section 3A Appellate Jurisdiction Act enjoins them to assist the court in ensuring that court directions are complied with and that justice is dispensed expeditiously. A party cannot egregiously fail or refuse to comply with directions of the court claiming that the said directions were salutary and not accompanied by any sanctions and hope to seek refuge in the overriding principle. That in our view amounts to gross abuse of court process. There must be an end to litigation and it behoves this Court to tell the appellant that its journey ends at this point.
12. Flowing from the cited decision, it can be seen that the law enjoins parties to assist the court in ensuring that court directions are complied with and that justice is dispensed expeditiously. Parties were on 2.7.24 directed to attend Court on 7.10.24 for directions on the appeal. As indicated herein, the Appellant did not attend court on that date. No reason has been given for non attendance on 7.10.24 and subsequently on 8.4.25. After filing the record of appeal on 17.10.23, the Appellant took no further action in the matter and contrary to his claim, no submissions on the appeal were filed.
13. In Peter Kipkurui Chemoiwo v Richard Chepsergon [2021] KECA 979 (KLR), the Court of Appeal considered an appeal against dismissal order and stated:
In analyzing the matter, the learned Judge correctly appreciated the principles in dismissing an appeal for want of prosecution as espoused in various cases such as in Ivita –v- Kyumba [1984] KLR 441; that the test to be applied by the courts in an application for dismissal of a suit for want of prosecution is whether the delay is prolonged and inexcusable, and if it is, whether the delay could be excused and justice can be done despite the delay. In view of this the learned Judge concluded that the appellant had not taken any steps to prosecute his appeal since the matter was concluded before the lower court in the year 2012. The learned Judge further held that that the appellant had also filed an application for stay of execution which was never prosecuted yet the appellant enjoyed status quo orders to the detriment of the respondent who was unable to enjoy the fruits of his judgment allowing him exclusive possession of the land.
From our own assessment of the matter, the learned Judge did not err. The appellant filed his memorandum of appeal on 15th September, 2012, filed an application for stay of execution on 2nd October, 2012, obtained interim orders maintaining status quo on 3rd October, 2012 pending hearing and determination of the application and filed the record of appeal on 5th July, 2013. Thereafter, the appellant made no effort to prosecute his appeal and was only roused from slumber when the respondent filed his application to dismiss the appeal for want for prosecution.
14. I have considered the circumstances of the case. To begin with, the Appellant did not comply with the directions to attend Court for directions. No reason has been given for this failure. Further, after filing his appeal on 29.6.23, the Appellant made no effort to prosecute the same and was only roused from slumber after the appeal was dismissed. The Appellant has stated that he became aware of the dismissal of the appeal on 27.6.25 from the Judiciary Public Information e-Kiosk. This cannot be true as the Appellant filed submissions dated 21.5.25 on the Respondent’s bill of costs dated 11.4.25 which was filed following the dismissal of the appeal. It baffles the Court that the Appellant would respond to a bill of costs in respect of a concluded matter and 2 months later file an application to reinstate the same matter, claiming he was unaware of the dismissal. This is clearly an attempt to mislead the Court.
15. The Appellant’s conduct of failing to attend Court as directed and indolence should not be countenanced. By his conduct, the Appellant derogated from the overriding objective of the expeditious, fair, just proportionate and economic disposal of the matter herein. This Court should therefore not provide succour and cover to the Appellant given his conduct. (see Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 6 others [2013] eKLR).
16. In the end and in view of the foregoing, this Court declines to exercise its discretion in the Appellant’s favour. I accordingly dismiss the Application dated 27.6.25. The Respondent shall have costs.
DATED, SIGNED and DELIVERED at Malindi this 13th day of March 2026