Ruling in HCCC/E007/2021 Jubilee General Insurance Co Ltd Vs Francis Nguli Ngili & Josteje Investments
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
CIVIL CASE NO. E007 OF 2021
JUBILEE GENERAL INSURANCE CO LTD…………………….............................................APPLICANT
VERSUS
FRANCIS NGULI NGILI.................................................………………………………….…1 st RESPONDENT
JOSTEJE INVESTMENTS…..................................................……………………………...2 nd RESPONDENT
RULING
1. Before me is an Application dated 13 th August 2025 seeking reinstatement of a suit dismissed for want of appearance on the 25 th July 2024 filed pursuant to Sections 1A, 1B. 3A of the Civil Procedure Act, Cap 21, Rules 1 (2), 2 (2) (a) & 3(1) of the High Court (Practice & Procedure) Rules: Order 42 Rule 6, Order 50 Rule 1 of the Civil Procedure Rules.
2. The Applicant seeks the following reliefs;
a) SPENT
b) That, the Honourable Court be pleased to set aside the orders issued on the 25 th July 2024 dismissing the Applicant's suit herein for want of prosecution.
c) That, the Honourable Court be pleased to reinstate the suit for its determination on merits and to finality.
d) That, pending the hearing and determination of this Application, there be Stay of the taxation proceedings on the Respondent's Bill of Costs dated 9 June 2025.
e) That, the costs of the application be provided for.
3. The Application is grounded on the following thirteen (13) grounds;
i. That the matter herein was due for hearing on 25 July 2024.
ii. That the application was dismissed pursuant to the grounds of non-attendance by the Plaintiff/Applicant, attributable to the failure of the Advocate in conduct of the matter to timeously appear before the Court on time.
iii. That following the orders of the court dated 25 July 2024, a bill of cast dated 9 June 2025 has been served and taxation is due on 19 August 2025.
iv. That the absence of the Plaintiff/Applicant's Advocate on 25 July 2024 was precipitated by an unforeseen and uncontrollable fluctuation of the office's internet connectivity which was caused by power outage, which regrettably impeded the counsel's ability to participate in the proceedings.
v. That despite diligent efforts to rectify the connectivity issue, by the time the office internet was reinstated to full operational capacity, the matter had already been called out and summarily dismissed for non-attendance by the Plaintiff/Applicant's Counsel.
vi. That the power outage and fluctuation of the office internet was an inadvertent and unforeseeable technical malfunction, and as such, the resultant non-attendance should not be unjustly attributed to or visited upon the Plaintiff/Applicant herein, who remain an innocent and blameless party in this matter.
vii. That there were numerous follow ups by the Plaintiff/Applicant on the Case Tracking System but the status of the file had not been updated.
viii. That, the Plaintiff/Applicant only got to know of the dismissal dated 25/07/2024 after a bill of costs had been served.
ix. That, with the suit being dismissed, irreparable harm will be visited upon the Plaintiff/Applicant as the matter stands statute barred on effluxion of time thus warranting the issuance of orders.
x. That, it is in the interest of fairness and justice that the suit be reinstated and to afford the Plaintiff/Applicant a chance to prosecute his claim as it raises substantial and triable issues that deserve this Honourable court's intervention and determination on merit.
xi. That, no prejudice will be suffered by the Defendant that connot be remedied by way of throw away costs should the orders sought herein be granted."
xii. That, such technical and unintentional mishaps should be viewed with judicial leniency, ensuring that substantive justice prevails over procedural technicalities.
xiii. That, the Honourable Court is espoused with wide and unfettered discretion during the August Vacation period to reinstate and allow the Applicant to prosecute the Application to finality.
xiv. That, it is in the interest of justice that the suit be reinstated and the Plaintiff/Applicant be allowed to prosecute this claim to finality and to safeguard the interests of justice.
4. The Application is further supported by the worn Affidavit of George N. Karanja who further depones that his absence of the on 25 July 2025 was precipitated by an unforeseen and uncontrollable fluctuation of the office's internet connectivity which was caused by power outage, which regrettably impeded the counsel's ability to participate in the proceedings.
5. That despite the advocate’s diligent afforts to rectify the connectivity issue, by the time the office internet was reinstated to full operational capacity, the matter had already been called out and summarily dismissed for non-attendance from his end.
6. That the power outage and fluctuation of the office internet was an inadvertent and unforeseeable technical malfunction, and as such, the resultant non-attendance should not be unjustly attributed to or visited upon the Plaintiff/Applicant herein, who remain innocent and blameless party in this matter.
7. That there were numerous follow ups by the Plaintiff/Applicant on the Case Tracking System but the status of the file had not been updated.
8. That the Plaintiff/Applicant only got to know of the dismissal dated 25/07/2024 after a bill of cost had been served.
9. That with the suit being dismissed, irreparable harm will be visited upon the Plaintiff/Applicant as the matter stands statute barred on effluxion of time thus warranting the issuance of orders.
10. That it is in the interest of fairness and justice that the suit be reinstated and to afford the Plaintiff/Applicant a chance to prosecute his claim as it raises substantial and triable issues that deserve this Honourable court's intervention and determination on merit.
11. That no prejudice will be suffered by the Defendant that cannot be remedied by way of throw away costs should the orders sought herein be granted.
12. That such technical and unintentional mishaps should be viewed with judicial leniency, ensuring that substantive justice prevails over procedural technicalities.
13. That the Honourable Court is espoused with wide and unfettered discretion to reinstate and allow the Applicant to prosecute the Application to finality.
14. That it is in the interest of justice that the suit be reinstated and the Plaintiff/Applicant be allowed to prosecute this claim to finality and to safeguard the interests of justice.
The Respondents Case
15. The Application is opposed in a replying Affidavit by Francis Onyango Aloo dated 26th September 2025 deponing that, this matter was dismissed for non-attendance of the plaintiff and its counsel on 25th July, 2024 when it was scheduled for hearing.
16. That he was personally present on the court's virtual platform on 25th July, 2024 when this matter was scheduled for hearing.
17. That he is aware that the matter was listed for hearing as number 13 on the cause list which he downloaded from the CTS.
18. That the matter was first called out during the morning call over and the court scheduled it for hearing at 16.00 hours that day.
19. That he later logged back in to the court's virtual platform at 15.45 hours that same afternoon in readiness for the hearing which was scheduled for 16.00 hours.
20. That there was no appearance by the plaintiff or its counsel when the matter was called out for hearing.
21. That since there was no explanation why the plaintiff or its advocate were not present in court and since the defendant was not admitting any part of the claim, the honorable court justifiably dismissed the matter for want of prosecution with costs to the defendants.
22. That it is the order dismissing the suit that the plaintiff is seeking to set-aside and have the suit reinstated for hearing.
23. That it is trite law that setting aside is in the discretion of court and the discretion must be exercised judiciously and for good reasons.
24. That, the main reason advanced by the applicant for seeking the exercise of this court's favorable discretion is that the applicant's counsel experienced technical challenges emanating from power outage and internet connectivity fluctuation.
25. That it is his humble submission that the explanation given by the applicant is implausible for the following reasons:
a) That , first, the internet provider from which the challenges were experienced is not disclosed.
b) That, secondly, if the office Wi-Fi was experiencing fluctuation there was nothing stopping the applicant's counsel from logging to the court's virtual platform from his cell phone data or any other reasonable alternative.
c) That, thirdly, the applicant's counsel's office is just a stone throw away from the court precincts and nothing could have stopped the counsel from physically attending to the matter in open court.
d) That it is equally not explained why the plaintiff's representative/witness was not present in court when the matter was called out, even if it were to be assumed that the counsel experienced internet connectivity problems.
e) That, the applicant has also not explained what steps it took thereafter to ascertain the status of the matter before it was served with the defendant's bill of costs, a whole 11 months and 16 days after the matter was dismissed!
26. That it is even more interesting that the applicant was served with a bill of costs on 11 th July, 2025 but once again had to wait another 33 days until the 13th August, 2025 to file the instant application.
27. That the applicant has also alleged that attempts to follow up on the status of the file through the CTS was unsuccessful and once again I wish to state that the explanation is implausible for the following reasons:
a. That he is personally aware that the judiciary case status update is also done through SMS to parties and their counsel and he can confirm that he did receive an SMS from the judiciary informing me of the status of the matter after the proceedings of 25 July, 2024. he believe the applicant's counsel must have received the same text message but deliberately or negligently avoided paying attention to it,
b. That while justice and fairness require that a party be afforded an opportunity of being beard, it does not mean that a party mast be heard
c. That in this case the applicant was afforded ample opportunity of being heard but chose not to attend court without any proper explanation.
28. That there's serious prejudice already occasioned to the defendants and the same persists to date by the plaintiff's deliberate and unjustified refusal to settle its contractual obligations to the defendants arising from an insurance policy leading to the defendant's property being auctioned in the process and further demands are still being made by third parties against the defendants
29. That from the foregoing. he believes that the plaintiff's application is unmerited for the following reasons now summarized below.
a) That the absence of the plaintiff or its advocate on 25 July, 2024 was as a result of negligence and lack of due diligence as opposed to technical issues including power outage leading to intermet fluctuations as alleged. The allegations are not only unsubstantiated but also amount to a convenient excuse for negligence and lack of due diligence.
b) That the grounds advanced comprise falsehoods and do not adequately explain their absence on 25 July, 2024,
c) That the matter having been called out during the morning call over and then scheduled for bearing at 4 pm that same day but which was instead called out for hearing later at 4:18pm, that period was sufficient for a diligent litigant or its advocate to devise a way to be present at the hearing either physically or through any other alternative means which they did not.
d) That the plaintiff/applicant's advocate had ample opportunity to follow up on the status of the matter, either through physical attendance, direct communication with the registry or other available channels, but failed to do so. His reliance solely on the Court Tracking System, without any further action, demonstrates a lack of seriousness and commitment to the matter.
e) That the claim that the plaintiff only became aware of the dismissal upon service of the Bill of Costs dated 9th June, 2025, one (1) year after the dismissal was entered, further underscores the advocate's and/or the plaintiff's indolence and disregard for the case. This delay is inexcusable.
f) That the current application was filed on 13th August, 2025, more than a month after the bill of costs was served, and more than one (1) year after the dismissal of the suit. The delay is both inordinate and unexplained, and the application is therefore an abuse of the court process.
g) That the plaintiff/applicant's assertion that the dismissal will result in irreparable harm due to the matter being statute barred is misleading and opportunistic, as it seeks to shift the consequences of their own negligence onto the respondents and this Honorable Court.
h) That the principle that delayed justice is justice denied must be upheld and the plaintiff cannot be allowed to circumvent it by invoking vague claims of harm, especially when the delay and inaction were entirely within their control.
i) That the plaintiff applicant and their advocate had sufficient time between the dismissal on 25 July, 2024 and the service of the Bill of Costs on 11 July, 2025 to take remedial steps, yet failed to do so. The instant application dated 13th August, 2025, is not only inordinately late but is also devoid of any credible explanation for the delay.
30. That the plaintiff/applicant's appeal to justice and fairness must be weighed against the equally compelling principles of procedural discipline and judicial efficiency, which are essential to the integrity of the judicial process.
31. That the plaintiff's claim of substantial and triable issues cannot be used as a blanket justification to revive a suit that was dismissed due to a party's own inexcusable default.
32. That the assertion that no prejudice will be suffered by the defendants is inaccurate and dismissive of the real prejudice caused by prolonged uncertainty, wasted costs, and the erosion of the defendant's right to closure, especially where the plaintiff had ample opportunity to act but failed to do so.
33. That the offer of throw-away costs does not cure the procedural lapse nor does it compensate for the prejudice suffered as litigation is not merely a financial exercise but a structured process governed by rules and timelines which must be respected.
34. That for the foregoing reasons, the application is thus an abuse of the court process and the same ought to be dismissed with costs to the respondents/defendants.
Analysis and Determination
35. In an application for reinstatement of a dismissed suit or application, an applicant appeals to the discretion of the Court. The Court must caution itself not to exercise its discretion in a manner that will result in an injustice. This position is fortified in the case of Richard Ncharpi Leiyagu v Independent Electoral Boundaries Commission & 2 others [2013] eKLR , where the Court of Appeal stated:
“We agree with those noble principles which go further to establish that the court's discretion to set aside an ex-parte judgment or order for that matter, is intended to avoid injustice or hardship resulting from an accident, inadvertence or inexcusable mistake or error but not to assist a person who deliberately seeks to obstruct or delay the course of justice. We have considered the reasons that were offered by the appellant regarding their failure to attend court on the 10th June, 2013 with anxious minds. We have asked ourselves whether failure to attend court on 10th June, 2013, constituted an excusable mistake, an error of judgment regarding counsel's failure to diarize the date properly or was it meant to deliberately delay the cause of justice”.
36. The circumstances of this case are insufficient to persuade the Court that the non-attendance by the Applicant at the hearing of the dismissed application was a deliberate attempt to obstruct or delay justice. The delay to further move the court for reinstatement for over one year is explicit manifestation of indolence, the failure to properly evidence the purported power outage or internets connectivity challenges that frustrated the Applicant counsel is equally indicative of the indolence.
37. This Court is unpersuaded that even after the matter was dismissed it took the Applicant a further thirteen months to realis this. The Applicant was the plaintiff expected to prosecute its case in an expedited fashion.
38. The Hearing proceedings on the 25 th July 2025 was on notice by the parties and that no reason has been availed of any measures undertaken subsequently to determine the outcome and if possible remedy the same. The Applicant went into a slumber
39. The only reason the Applicant moved this court was upon being served with a bill of costs an no other reason.
40. Accordingly, I do not find any merit in the Application which fails for want of merit and the same is accordingly dismissed with costs to the Respondent.
It is ordered
Dated, Signed and Delivered at Nakuru
On this 13 th day of January 2026
Mohochi S. M.
JUDGE
2
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
CIVIL CASE NO. E007 OF 2021
JUBILEE GENERAL INSURANCE CO LTD…………………….............................................APPLICANT
VERSUS
FRANCIS NGULI NGILI.................................................………………………………….…1 st RESPONDENT
JOSTEJE INVESTMENTS…..................................................……………………………...2 nd RESPONDENT
RULING
1. Before me is an Application dated 13 th August 2025 seeking reinstatement of a suit dismissed for want of appearance on the 25 th July 2024 filed pursuant to Sections 1A, 1B. 3A of the Civil Procedure Act, Cap 21, Rules 1 (2), 2 (2) (a) & 3(1) of the High Court (Practice & Procedure) Rules: Order 42 Rule 6, Order 50 Rule 1 of the Civil Procedure Rules.
2. The Applicant seeks the following reliefs;
a) SPENT
b) That, the Honourable Court be pleased to set aside the orders issued on the 25 th July 2024 dismissing the Applicant's suit herein for want of prosecution.
c) That, the Honourable Court be pleased to reinstate the suit for its determination on merits and to finality.
d) That, pending the hearing and determination of this Application, there be Stay of the taxation proceedings on the Respondent's Bill of Costs dated 9 June 2025.
e) That, the costs of the application be provided for.
3. The Application is grounded on the following thirteen (13) grounds;
i. That the matter herein was due for hearing on 25 July 2024.
ii. That the application was dismissed pursuant to the grounds of non-attendance by the Plaintiff/Applicant, attributable to the failure of the Advocate in conduct of the matter to timeously appear before the Court on time.
iii. That following the orders of the court dated 25 July 2024, a bill of cast dated 9 June 2025 has been served and taxation is due on 19 August 2025.
iv. That the absence of the Plaintiff/Applicant's Advocate on 25 July 2024 was precipitated by an unforeseen and uncontrollable fluctuation of the office's internet connectivity which was caused by power outage, which regrettably impeded the counsel's ability to participate in the proceedings.
v. That despite diligent efforts to rectify the connectivity issue, by the time the office internet was reinstated to full operational capacity, the matter had already been called out and summarily dismissed for non-attendance by the Plaintiff/Applicant's Counsel.
vi. That the power outage and fluctuation of the office internet was an inadvertent and unforeseeable technical malfunction, and as such, the resultant non-attendance should not be unjustly attributed to or visited upon the Plaintiff/Applicant herein, who remain an innocent and blameless party in this matter.
vii. That there were numerous follow ups by the Plaintiff/Applicant on the Case Tracking System but the status of the file had not been updated.
viii. That, the Plaintiff/Applicant only got to know of the dismissal dated 25/07/2024 after a bill of costs had been served.
ix. That, with the suit being dismissed, irreparable harm will be visited upon the Plaintiff/Applicant as the matter stands statute barred on effluxion of time thus warranting the issuance of orders.
x. That, it is in the interest of fairness and justice that the suit be reinstated and to afford the Plaintiff/Applicant a chance to prosecute his claim as it raises substantial and triable issues that deserve this Honourable court's intervention and determination on merit.
xi. That, no prejudice will be suffered by the Defendant that connot be remedied by way of throw away costs should the orders sought herein be granted."
xii. That, such technical and unintentional mishaps should be viewed with judicial leniency, ensuring that substantive justice prevails over procedural technicalities.
xiii. That, the Honourable Court is espoused with wide and unfettered discretion during the August Vacation period to reinstate and allow the Applicant to prosecute the Application to finality.
xiv. That, it is in the interest of justice that the suit be reinstated and the Plaintiff/Applicant be allowed to prosecute this claim to finality and to safeguard the interests of justice.
4. The Application is further supported by the worn Affidavit of George N. Karanja who further depones that his absence of the on 25 July 2025 was precipitated by an unforeseen and uncontrollable fluctuation of the office's internet connectivity which was caused by power outage, which regrettably impeded the counsel's ability to participate in the proceedings.
5. That despite the advocate’s diligent afforts to rectify the connectivity issue, by the time the office internet was reinstated to full operational capacity, the matter had already been called out and summarily dismissed for non-attendance from his end.
6. That the power outage and fluctuation of the office internet was an inadvertent and unforeseeable technical malfunction, and as such, the resultant non-attendance should not be unjustly attributed to or visited upon the Plaintiff/Applicant herein, who remain innocent and blameless party in this matter.
7. That there were numerous follow ups by the Plaintiff/Applicant on the Case Tracking System but the status of the file had not been updated.
8. That the Plaintiff/Applicant only got to know of the dismissal dated 25/07/2024 after a bill of cost had been served.
9. That with the suit being dismissed, irreparable harm will be visited upon the Plaintiff/Applicant as the matter stands statute barred on effluxion of time thus warranting the issuance of orders.
10. That it is in the interest of fairness and justice that the suit be reinstated and to afford the Plaintiff/Applicant a chance to prosecute his claim as it raises substantial and triable issues that deserve this Honourable court's intervention and determination on merit.
11. That no prejudice will be suffered by the Defendant that cannot be remedied by way of throw away costs should the orders sought herein be granted.
12. That such technical and unintentional mishaps should be viewed with judicial leniency, ensuring that substantive justice prevails over procedural technicalities.
13. That the Honourable Court is espoused with wide and unfettered discretion to reinstate and allow the Applicant to prosecute the Application to finality.
14. That it is in the interest of justice that the suit be reinstated and the Plaintiff/Applicant be allowed to prosecute this claim to finality and to safeguard the interests of justice.
The Respondents Case
15. The Application is opposed in a replying Affidavit by Francis Onyango Aloo dated 26th September 2025 deponing that, this matter was dismissed for non-attendance of the plaintiff and its counsel on 25th July, 2024 when it was scheduled for hearing.
16. That he was personally present on the court's virtual platform on 25th July, 2024 when this matter was scheduled for hearing.
17. That he is aware that the matter was listed for hearing as number 13 on the cause list which he downloaded from the CTS.
18. That the matter was first called out during the morning call over and the court scheduled it for hearing at 16.00 hours that day.
19. That he later logged back in to the court's virtual platform at 15.45 hours that same afternoon in readiness for the hearing which was scheduled for 16.00 hours.
20. That there was no appearance by the plaintiff or its counsel when the matter was called out for hearing.
21. That since there was no explanation why the plaintiff or its advocate were not present in court and since the defendant was not admitting any part of the claim, the honorable court justifiably dismissed the matter for want of prosecution with costs to the defendants.
22. That it is the order dismissing the suit that the plaintiff is seeking to set-aside and have the suit reinstated for hearing.
23. That it is trite law that setting aside is in the discretion of court and the discretion must be exercised judiciously and for good reasons.
24. That, the main reason advanced by the applicant for seeking the exercise of this court's favorable discretion is that the applicant's counsel experienced technical challenges emanating from power outage and internet connectivity fluctuation.
25. That it is his humble submission that the explanation given by the applicant is implausible for the following reasons:
a) That , first, the internet provider from which the challenges were experienced is not disclosed.
b) That, secondly, if the office Wi-Fi was experiencing fluctuation there was nothing stopping the applicant's counsel from logging to the court's virtual platform from his cell phone data or any other reasonable alternative.
c) That, thirdly, the applicant's counsel's office is just a stone throw away from the court precincts and nothing could have stopped the counsel from physically attending to the matter in open court.
d) That it is equally not explained why the plaintiff's representative/witness was not present in court when the matter was called out, even if it were to be assumed that the counsel experienced internet connectivity problems.
e) That, the applicant has also not explained what steps it took thereafter to ascertain the status of the matter before it was served with the defendant's bill of costs, a whole 11 months and 16 days after the matter was dismissed!
26. That it is even more interesting that the applicant was served with a bill of costs on 11 th July, 2025 but once again had to wait another 33 days until the 13th August, 2025 to file the instant application.
27. That the applicant has also alleged that attempts to follow up on the status of the file through the CTS was unsuccessful and once again I wish to state that the explanation is implausible for the following reasons:
a. That he is personally aware that the judiciary case status update is also done through SMS to parties and their counsel and he can confirm that he did receive an SMS from the judiciary informing me of the status of the matter after the proceedings of 25 July, 2024. he believe the applicant's counsel must have received the same text message but deliberately or negligently avoided paying attention to it,
b. That while justice and fairness require that a party be afforded an opportunity of being beard, it does not mean that a party mast be heard
c. That in this case the applicant was afforded ample opportunity of being heard but chose not to attend court without any proper explanation.
28. That there's serious prejudice already occasioned to the defendants and the same persists to date by the plaintiff's deliberate and unjustified refusal to settle its contractual obligations to the defendants arising from an insurance policy leading to the defendant's property being auctioned in the process and further demands are still being made by third parties against the defendants
29. That from the foregoing. he believes that the plaintiff's application is unmerited for the following reasons now summarized below.
a) That the absence of the plaintiff or its advocate on 25 July, 2024 was as a result of negligence and lack of due diligence as opposed to technical issues including power outage leading to intermet fluctuations as alleged. The allegations are not only unsubstantiated but also amount to a convenient excuse for negligence and lack of due diligence.
b) That the grounds advanced comprise falsehoods and do not adequately explain their absence on 25 July, 2024,
c) That the matter having been called out during the morning call over and then scheduled for bearing at 4 pm that same day but which was instead called out for hearing later at 4:18pm, that period was sufficient for a diligent litigant or its advocate to devise a way to be present at the hearing either physically or through any other alternative means which they did not.
d) That the plaintiff/applicant's advocate had ample opportunity to follow up on the status of the matter, either through physical attendance, direct communication with the registry or other available channels, but failed to do so. His reliance solely on the Court Tracking System, without any further action, demonstrates a lack of seriousness and commitment to the matter.
e) That the claim that the plaintiff only became aware of the dismissal upon service of the Bill of Costs dated 9th June, 2025, one (1) year after the dismissal was entered, further underscores the advocate's and/or the plaintiff's indolence and disregard for the case. This delay is inexcusable.
f) That the current application was filed on 13th August, 2025, more than a month after the bill of costs was served, and more than one (1) year after the dismissal of the suit. The delay is both inordinate and unexplained, and the application is therefore an abuse of the court process.
g) That the plaintiff/applicant's assertion that the dismissal will result in irreparable harm due to the matter being statute barred is misleading and opportunistic, as it seeks to shift the consequences of their own negligence onto the respondents and this Honorable Court.
h) That the principle that delayed justice is justice denied must be upheld and the plaintiff cannot be allowed to circumvent it by invoking vague claims of harm, especially when the delay and inaction were entirely within their control.
i) That the plaintiff applicant and their advocate had sufficient time between the dismissal on 25 July, 2024 and the service of the Bill of Costs on 11 July, 2025 to take remedial steps, yet failed to do so. The instant application dated 13th August, 2025, is not only inordinately late but is also devoid of any credible explanation for the delay.
30. That the plaintiff/applicant's appeal to justice and fairness must be weighed against the equally compelling principles of procedural discipline and judicial efficiency, which are essential to the integrity of the judicial process.
31. That the plaintiff's claim of substantial and triable issues cannot be used as a blanket justification to revive a suit that was dismissed due to a party's own inexcusable default.
32. That the assertion that no prejudice will be suffered by the defendants is inaccurate and dismissive of the real prejudice caused by prolonged uncertainty, wasted costs, and the erosion of the defendant's right to closure, especially where the plaintiff had ample opportunity to act but failed to do so.
33. That the offer of throw-away costs does not cure the procedural lapse nor does it compensate for the prejudice suffered as litigation is not merely a financial exercise but a structured process governed by rules and timelines which must be respected.
34. That for the foregoing reasons, the application is thus an abuse of the court process and the same ought to be dismissed with costs to the respondents/defendants.
Analysis and Determination
35. In an application for reinstatement of a dismissed suit or application, an applicant appeals to the discretion of the Court. The Court must caution itself not to exercise its discretion in a manner that will result in an injustice. This position is fortified in the case of Richard Ncharpi Leiyagu v Independent Electoral Boundaries Commission & 2 others [2013] eKLR , where the Court of Appeal stated:
“We agree with those noble principles which go further to establish that the court's discretion to set aside an ex-parte judgment or order for that matter, is intended to avoid injustice or hardship resulting from an accident, inadvertence or inexcusable mistake or error but not to assist a person who deliberately seeks to obstruct or delay the course of justice. We have considered the reasons that were offered by the appellant regarding their failure to attend court on the 10th June, 2013 with anxious minds. We have asked ourselves whether failure to attend court on 10th June, 2013, constituted an excusable mistake, an error of judgment regarding counsel's failure to diarize the date properly or was it meant to deliberately delay the cause of justice”.
36. The circumstances of this case are insufficient to persuade the Court that the non-attendance by the Applicant at the hearing of the dismissed application was a deliberate attempt to obstruct or delay justice. The delay to further move the court for reinstatement for over one year is explicit manifestation of indolence, the failure to properly evidence the purported power outage or internets connectivity challenges that frustrated the Applicant counsel is equally indicative of the indolence.
37. This Court is unpersuaded that even after the matter was dismissed it took the Applicant a further thirteen months to realis this. The Applicant was the plaintiff expected to prosecute its case in an expedited fashion.
38. The Hearing proceedings on the 25 th July 2025 was on notice by the parties and that no reason has been availed of any measures undertaken subsequently to determine the outcome and if possible remedy the same. The Applicant went into a slumber
39. The only reason the Applicant moved this court was upon being served with a bill of costs an no other reason.
40. Accordingly, I do not find any merit in the Application which fails for want of merit and the same is accordingly dismissed with costs to the Respondent.
It is ordered
Dated, Signed and Delivered at Nakuru
On this 13 th day of January 2026
Mohochi S. M.
JUDGE
2