'
1. Before this Court for determination is a Notice of Motion dated 28th March 2025, in which the Applicant seeks the following orders;
a.) Review and or setting aside the orders issued on 5th March 2025 dismissing the appeal.
b.) Directions for the appeal to be reinstated for hearing and determination on merits.
c.) The court to enlarge and or extend the timelines for filing the Record of Appeal.
d.) The record of appeal dated 3rd March 2025 be deemed to be duly filed, served and properly on record.
e.) Leave to file a supplementary Record of Appeal incorporating the proceedings and decree emanating from the judgment delivered in the subordinate court on 9th June 2021.
2. The application is supported by the grounds set out in the supporting affidavit sworn by Naomy Achieng Tom on 28th March 2025. She avers that the appeal arises from the judgment delivered on 9th June 2021 in Mavoko PMCC No. 823 of 2017 Regina Munyiva Musyoki & Christinah Muindi Ngumbu (suing as the administrators of the estate of Ngumbu Musembi – deceased) v Joseph Boro Yongi, challenging both liability and quantum.
3. She states that repeated efforts were made to obtain certified copies of the proceedings and decree, but these were unsuccessful due to the court registry’s indication that the lower court file was inaccessible following a fire incident. On 17th December 2024, when the matter was mentioned to confirm compliance with the filing of the Record of Appeal together with written submissions, the Court granted the Appellant a final opportunity to file the said documents within forty-five (45) days, failing which the appeal would stand automatically dismissed.
4. She averred that despite persistent follow ups with the registry, the appellant was unable to obtain the proceedings and decree. As a result, the Record of Appeal dated 3rd March 2025 and submissions dated 4th March 2025, were filed outside the stipulated period and without the proceedings and decree. On 5th March 2025, the Court dismissing the appeal pursuant to the earlier order of 17th December 2024, which had required the filing of the Record of Appeal and submissions within forty five (45) days. The Applicant now seeks reinstatement, citing the prolonged and difficult process of obtaining the proceedings and decree, and urges the Court to allow the application in the interests of justice.
5. The application was opposed by the Respondents through a Replying Affidavit sworn on 15th May 2025. They urged that the Applicant failed to meet the legal threshold for review under Order 45 Rules 1 and 2 of the Civil Procedure Rules. Specifically, they contend that no new and important evidence has been presented that was previously unavailable, prior to the dismissal, nor has any error apparent on the face of the record been demonstrated.
6. The Respondent asserts that the application is an attempt to excuse the Appellant’s failure to diligently prosecute the appeal. They note that the Appellant failed to comply with the Court’s directions issued on 17th December 2024, and failed to seek extension of time before the lapse of the 45 days period.
7. They argue that the present application is a back door attempt to revive an appeal that was abandoned through inaction.
8. Further, the Respondents challenge the Applicant’s claim regarding delays caused by the court’s registry, describing them as exaggerated and conveniently raised after the fact. They contend that the alleged fire and water damage cannot justify a delay of over three years from June 2021 to December 2024 during which the appellant showed no meaningful effort to prosecute the appeal.
9. They acknowledged that an appeal was filed but argue that it was not diligently pursued. The correspondence exhibited by the Applicant is described as sporadic and self-serving. The Respondents emphasize that the appellant had ample opportunity to apply for certified copies, seek extension of time or take other steps to advance the appeal. they also note that the letter from the court registry dated 17th March 2025 was issued after the appeal had already been dismissed and cannot retroactively justify noncompliance.
10. In their view, the Applicant has not demonstrated sufficient cause for reinstatement, and doing so would prejudice the Respondents and delay closure for the deceased’s family
Analysis and Determination
11. I have considered the rival affidavits by both parties in respect of the motion. In my view the issues for determination are as follows;
a.) Whether the Applicant has satisfied the legal threshold for review and/or setting aside of the orders issued on 5th March 2025 dismissing the appeal.
b.) Whether sufficient cause has been shown to warrant reinstatement of the appeal and extension of time for filing the Record of Appeal.
c.) Whether the Record of Appeal filed on 3rd March 2025 should be deemed duly filed and properly on record.
Whether the Applicant has satisfied the legal threshold for review and/or setting aside of the orders issued on 5th March 2025 dismissing the appeal
12. The Applicant seeks review and setting aside of the court’s orders dismissing the appeal, invoking the provisions of Order 45 Rule 1 of the Civil Procedure Rules. The law under this provision is well settled. A review may be granted where:
(a) there is discovery of new and important evidence which, after due diligence, was not within the applicant’s knowledge or could not be produced at the time the decree or order was made; or
(b) there is some mistake or error apparent on the face of the record; or
(c) there exists any other sufficient reason.
13. The Applicant does not allege an error on the face of the record but rather relies on the third limb “any other sufficient reason” arguing that the delay and subsequent dismissal were caused by the inaccessibility of the lower court file, which was reportedly affected by a fire and water damage incident. The Applicant contends that despite persistent efforts to obtain the proceedings and decree, the registry only partially responded after the court’s dismissal order.
14. To assess this ground, the Court must determine whether the explanation offered amounts to “sufficient cause” as contemplated under Order 45 and as elaborated in Pancras T. Swai v Kenya Breweries Ltd [2014] eKLR, where the Court of Appeal emphasized that review is not an avenue to re-argue a case, but to correct a demonstrable procedural or factual injustice.
15. The Applicant has exhibited correspondence showing that the first request for proceedings was made on 16th June 2021, shortly after the judgment. However, the next letter was written more than three years later on 14th January 2025, followed by letters dated 21st February 2025 and 6th March 2025. This timeline reveals a significant period of inactivity between mid-2021 and early 2025.
16. The Applicant attributes this dormancy to the alleged destruction of the lower court file. However, the letter from the lower court dated 17th March 2025 contradicts the Applicant’s claim. It clarifies that the file was not burned, but only some pages were water damaged and that the registry retained the original judgment and pleadings. Furthermore, the registry had directed the Applicant to pay Kshs 68,055/= for the decree to be drawn, a directive that appears not to have been complied with.
17. It is therefore evident that while the Applicant may have encountered some administrative challenges, the prolonged delay and the gaps in correspondences are adequately explained. The Applicant’s conduct reflects a lack of diligence rather than an unavoidable obstacle. The law requires litigants to be vigilant and proactive in pursuing their cases.
18. The dismissal order issued on 5th March 2025 was based on the Court’s express directions given on 17th December 2024, which granted the Appellant 45 days to file the Record of Appeal and submissions. That period lapsed without compliance, and the Applicant did not either seek extension of time before its expiry or seek to vary the orders. The dismissal was therefore self-executing and not occasioned by any judicial error warranting review.
19. In the light of the foregoing, I am not persuaded that the Applicant has met the threshold for review under Order 45. The reason advanced, does not amount to “sufficient reason” to disturb the dismissal order, especially in view of the prolonged in action and failure to act within the timelines set by the court.
Whether sufficient cause has been shown to warrant reinstatement of the appeal and extension of time for filing the Record of Appeal.
20. Without prejudice to the foregoing findings, even if the application were to be considered as one seeking reinstatement of the appeal and extension of time, the Applicant must still demonstrate “sufficient cause” for non-compliance as required under Sections 95 and 79G of the Civil Procedure Act and Order 50 Rule 6 of the Civil Procedure Rules.
21. The guiding principles for enlargement of time were well articulated in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR, where the Supreme Court laid down that extension of time is a discretionary remedy, not a right and that an applicant must demonstrate, among other factors, the length of delay, the reason for the delay, the degree of prejudice to the respondent, and whether the application has been brought without undue delay.
22. In this case, the period between the judgment of the subordinate court that is, 9th June 2021 and the filing of the present application of 28th March 2025 spans nearly four years. Even discounting registry difficulties, this delay is inordinate and largely unexplained. The few letters exhibited do not adequately account for the prolonged period of inactivity. No evidence has been presented to show that any follow up visits, emails, or applications for extension were made before the expiry of the 45 days granted on 17th December 2024.
23. The Respondents, being administrators of the estate of a deceased person, are entitled to closure. Reinstating the appeal at this stage, without credible justification, would prejudice them by unnecessarily prolonging litigation. Prolonged delay undermines both equity and justice. Consequently, the Applicant has failed to demonstrated diligence or sufficient cause to warrant the exercise of this Court’s discretion to reinstate the appeal or enlarge time for filing the Record of Appeal.
Whether the Record of Appeal filed on 3rd March 2025 should be deemed duly filed and properly on record.
24. The Applicant further prays that the Record of Appeal dated 3rd March 2025 be deemed duly filed, served, and properly on record. However, the record was filed after the expiry of the 45 days period stipulated in the court’s order of 17th December 2024 and after the appeal had already stood dismissed. Having found that the Applicant has not established sufficient cause to review or reinstate the appeal, this prayer cannot stand. The Record of Appeal filed out of time and without leave is irregular and of no legal effect.
25. Based on the reasoning set out in this Ruling, the Notice of Motion dated 28th March 2025 is dismissed with costs to the Respondents.
Orders accordingly
Delivered, Dated and Signed this 9th day of October 2025
'
1. Before this Court for determination is a Notice of Motion dated 28th March 2025, in which the Applicant seeks the following orders;
a.) Review and or setting aside the orders issued on 5th March 2025 dismissing the appeal.
b.) Directions for the appeal to be reinstated for hearing and determination on merits.
c.) The court to enlarge and or extend the timelines for filing the Record of Appeal.
d.) The record of appeal dated 3rd March 2025 be deemed to be duly filed, served and properly on record.
e.) Leave to file a supplementary Record of Appeal incorporating the proceedings and decree emanating from the judgment delivered in the subordinate court on 9th June 2021.
2. The application is supported by the grounds set out in the supporting affidavit sworn by Naomy Achieng Tom on 28th March 2025. She avers that the appeal arises from the judgment delivered on 9th June 2021 in Mavoko PMCC No. 823 of 2017 Regina Munyiva Musyoki & Christinah Muindi Ngumbu (suing as the administrators of the estate of Ngumbu Musembi – deceased) v Joseph Boro Yongi, challenging both liability and quantum.
3. She states that repeated efforts were made to obtain certified copies of the proceedings and decree, but these were unsuccessful due to the court registry’s indication that the lower court file was inaccessible following a fire incident. On 17th December 2024, when the matter was mentioned to confirm compliance with the filing of the Record of Appeal together with written submissions, the Court granted the Appellant a final opportunity to file the said documents within forty-five (45) days, failing which the appeal would stand automatically dismissed.
4. She averred that despite persistent follow ups with the registry, the appellant was unable to obtain the proceedings and decree. As a result, the Record of Appeal dated 3rd March 2025 and submissions dated 4th March 2025, were filed outside the stipulated period and without the proceedings and decree. On 5th March 2025, the Court dismissing the appeal pursuant to the earlier order of 17th December 2024, which had required the filing of the Record of Appeal and submissions within forty five (45) days. The Applicant now seeks reinstatement, citing the prolonged and difficult process of obtaining the proceedings and decree, and urges the Court to allow the application in the interests of justice.
5. The application was opposed by the Respondents through a Replying Affidavit sworn on 15th May 2025. They urged that the Applicant failed to meet the legal threshold for review under Order 45 Rules 1 and 2 of the Civil Procedure Rules. Specifically, they contend that no new and important evidence has been presented that was previously unavailable, prior to the dismissal, nor has any error apparent on the face of the record been demonstrated.
6. The Respondent asserts that the application is an attempt to excuse the Appellant’s failure to diligently prosecute the appeal. They note that the Appellant failed to comply with the Court’s directions issued on 17th December 2024, and failed to seek extension of time before the lapse of the 45 days period.
7. They argue that the present application is a back door attempt to revive an appeal that was abandoned through inaction.
8. Further, the Respondents challenge the Applicant’s claim regarding delays caused by the court’s registry, describing them as exaggerated and conveniently raised after the fact. They contend that the alleged fire and water damage cannot justify a delay of over three years from June 2021 to December 2024 during which the appellant showed no meaningful effort to prosecute the appeal.
9. They acknowledged that an appeal was filed but argue that it was not diligently pursued. The correspondence exhibited by the Applicant is described as sporadic and self-serving. The Respondents emphasize that the appellant had ample opportunity to apply for certified copies, seek extension of time or take other steps to advance the appeal. they also note that the letter from the court registry dated 17th March 2025 was issued after the appeal had already been dismissed and cannot retroactively justify noncompliance.
10. In their view, the Applicant has not demonstrated sufficient cause for reinstatement, and doing so would prejudice the Respondents and delay closure for the deceased’s family
Analysis and Determination
11. I have considered the rival affidavits by both parties in respect of the motion. In my view the issues for determination are as follows;
a.) Whether the Applicant has satisfied the legal threshold for review and/or setting aside of the orders issued on 5th March 2025 dismissing the appeal.
b.) Whether sufficient cause has been shown to warrant reinstatement of the appeal and extension of time for filing the Record of Appeal.
c.) Whether the Record of Appeal filed on 3rd March 2025 should be deemed duly filed and properly on record.
Whether the Applicant has satisfied the legal threshold for review and/or setting aside of the orders issued on 5th March 2025 dismissing the appeal
12. The Applicant seeks review and setting aside of the court’s orders dismissing the appeal, invoking the provisions of Order 45 Rule 1 of the Civil Procedure Rules. The law under this provision is well settled. A review may be granted where:
(a) there is discovery of new and important evidence which, after due diligence, was not within the applicant’s knowledge or could not be produced at the time the decree or order was made; or
(b) there is some mistake or error apparent on the face of the record; or
(c) there exists any other sufficient reason.
13. The Applicant does not allege an error on the face of the record but rather relies on the third limb “any other sufficient reason” arguing that the delay and subsequent dismissal were caused by the inaccessibility of the lower court file, which was reportedly affected by a fire and water damage incident. The Applicant contends that despite persistent efforts to obtain the proceedings and decree, the registry only partially responded after the court’s dismissal order.
14. To assess this ground, the Court must determine whether the explanation offered amounts to “sufficient cause” as contemplated under Order 45 and as elaborated in Pancras T. Swai v Kenya Breweries Ltd [2014] eKLR, where the Court of Appeal emphasized that review is not an avenue to re-argue a case, but to correct a demonstrable procedural or factual injustice.
15. The Applicant has exhibited correspondence showing that the first request for proceedings was made on 16th June 2021, shortly after the judgment. However, the next letter was written more than three years later on 14th January 2025, followed by letters dated 21st February 2025 and 6th March 2025. This timeline reveals a significant period of inactivity between mid-2021 and early 2025.
16. The Applicant attributes this dormancy to the alleged destruction of the lower court file. However, the letter from the lower court dated 17th March 2025 contradicts the Applicant’s claim. It clarifies that the file was not burned, but only some pages were water damaged and that the registry retained the original judgment and pleadings. Furthermore, the registry had directed the Applicant to pay Kshs 68,055/= for the decree to be drawn, a directive that appears not to have been complied with.
17. It is therefore evident that while the Applicant may have encountered some administrative challenges, the prolonged delay and the gaps in correspondences are adequately explained. The Applicant’s conduct reflects a lack of diligence rather than an unavoidable obstacle. The law requires litigants to be vigilant and proactive in pursuing their cases.
18. The dismissal order issued on 5th March 2025 was based on the Court’s express directions given on 17th December 2024, which granted the Appellant 45 days to file the Record of Appeal and submissions. That period lapsed without compliance, and the Applicant did not either seek extension of time before its expiry or seek to vary the orders. The dismissal was therefore self-executing and not occasioned by any judicial error warranting review.
19. In the light of the foregoing, I am not persuaded that the Applicant has met the threshold for review under Order 45. The reason advanced, does not amount to “sufficient reason” to disturb the dismissal order, especially in view of the prolonged in action and failure to act within the timelines set by the court.
Whether sufficient cause has been shown to warrant reinstatement of the appeal and extension of time for filing the Record of Appeal.
20. Without prejudice to the foregoing findings, even if the application were to be considered as one seeking reinstatement of the appeal and extension of time, the Applicant must still demonstrate “sufficient cause” for non-compliance as required under Sections 95 and 79G of the Civil Procedure Act and Order 50 Rule 6 of the Civil Procedure Rules.
21. The guiding principles for enlargement of time were well articulated in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR, where the Supreme Court laid down that extension of time is a discretionary remedy, not a right and that an applicant must demonstrate, among other factors, the length of delay, the reason for the delay, the degree of prejudice to the respondent, and whether the application has been brought without undue delay.
22. In this case, the period between the judgment of the subordinate court that is, 9th June 2021 and the filing of the present application of 28th March 2025 spans nearly four years. Even discounting registry difficulties, this delay is inordinate and largely unexplained. The few letters exhibited do not adequately account for the prolonged period of inactivity. No evidence has been presented to show that any follow up visits, emails, or applications for extension were made before the expiry of the 45 days granted on 17th December 2024.
23. The Respondents, being administrators of the estate of a deceased person, are entitled to closure. Reinstating the appeal at this stage, without credible justification, would prejudice them by unnecessarily prolonging litigation. Prolonged delay undermines both equity and justice. Consequently, the Applicant has failed to demonstrated diligence or sufficient cause to warrant the exercise of this Court’s discretion to reinstate the appeal or enlarge time for filing the Record of Appeal.
Whether the Record of Appeal filed on 3rd March 2025 should be deemed duly filed and properly on record.
24. The Applicant further prays that the Record of Appeal dated 3rd March 2025 be deemed duly filed, served, and properly on record. However, the record was filed after the expiry of the 45 days period stipulated in the court’s order of 17th December 2024 and after the appeal had already stood dismissed. Having found that the Applicant has not established sufficient cause to review or reinstate the appeal, this prayer cannot stand. The Record of Appeal filed out of time and without leave is irregular and of no legal effect.
25. Based on the reasoning set out in this Ruling, the Notice of Motion dated 28th March 2025 is dismissed with costs to the Respondents.
Orders accordingly
Delivered, Dated and Signed this 9th day of October 2025
'