1. The Applicant filed the Notice of Motion dated 21/05/2025 seeking to have this suit reinstated and set down for hearing. The was dismissed on 23/05/2024 for non-attendance. The Applicant blamed his then advocates on record for negligence and non-professionalism. The Applicant stated that he was willing to prosecute his matter and should be given an opportunity to be heard.
2. In support of the application, the Applicant deponed that he had previously complained to his former advocates on their non-professionalism but thereafter, his calls went unanswered. He all along believed that this matter was active until when he engaged the services of the current lawyer, when he realized that his matter had been dismissed for non-attendance. The discovery was made on 20/05/2025. He subsequently filed his application without any delay.
3. In the Replying Affidavit dated 05/11/2025, the Respondents through their counsel Naomi H. Kinuva deponed that the Applicant had a pending application dated 09/12/2024 seeking to set aside the orders dismissing the suit. Further, the suit belongs to the litigant nit the counsel. This court was invited to look at the record in the matter to establish whether the Applicant deserved the orders as prayed. The Applicant had taken a total of over 8 years without prosecuting his matter, and it is until the suit was dismissed that he seeks to prosecute the suit. The Respondents prayed to have the application dismissed with costs.
4. The application was canvassed by way of written submissions. Both parties complied by filing their rival submissions which I have considered.
Analysis
5. I have considered the application, supporting affidavit and the annexures thereto. and submissions by the parties. The issues for determination are: -
(a) Whether the Appellant established sufficient cause to warrant reinstatement of the suit
(b) Whether reinstatement would occasion prejudice
(c) Who should bear costs
6. On whether the Appellant established sufficient cause to warrant reinstatement of the suit, the Appellant attributed the dismissal of the suit to the negligence of his previous advocates and contended that he was unaware of the dismissal, until when he procured the services of his current lawyer.
7. While courts are generally reluctant to punish litigants for mistakes of counsel, parties also bear a responsibility to follow up their cases. In Bi-Mach Engineers Limited v James Kahoro Mwangi [2011] KECA 242 (KLR), the court emphasized that: -
“The applicant had a duty to pursue his advocates to find out the position on the litigation but there is no disclosure that the applicant bothered to follow up the matter with his erstwhile advocates. It is not enough simply to accuse the advocate of failure to inform as if there is no duty on the client to pursue his matter. If the advocate was simply guilty of inaction, that is not an excusable mistake which the court may consider with some sympathy. The client has a remedy against such an advocate.”
8. It is on record that since the filing if the suit, there has been prolonged inactivity extending over several years. The Applicant took no steps in having the matter set down for hearing. The Applicant cannot state that he was under the believe that the matter was active yet as a party to the suit, he took no action to ensure that the matter is heard and determined.
9. Further, the suit was dismissed on 23/05/2024. The Applicant filed an application to reinstate the suit dated 09/12/2024, 7months after the suit was dismissed. The application has since been disowned by the Applicant and withdrawn. Nevertheless, the Applicant filed this application almost one year after the suit was dismissed. In his Supporting Affidavit, he deponed that he has been following up with his previous advocates on record to know the status of his matter. The only communication between him and his previous advocates are the annexed emails dated 20/05/2025. There is no evidence of communication, to show that the Applicant bothered with the following up of his matter with his advocates.
10. I find that there is no excuse in the delay and prosecuting the suit, and further, in filing the application for reinstatement of suit.
11. On whether reinstatement would occasion prejudice, the prolonged delay inevitably prejudices the fair determination of disputes. Witnesses become unavailable, memories fade and documentary evidence may no longer be readily accessible.
12. The overriding objective under Sections 1A and 1B of the Civil Procedure Act and Article 159(2)(b) of the Constitution requires courts to facilitate the expeditious disposal of cases. Justice is owed not only to plaintiffs but also to defendants who are entitled to finality in litigation.
13. In Ivita v Kyumbu [1984] KLR 441, the court held that: -
“The test is whether the delay is prolonged and inexcusable, and, if it is, can justice be done despite the delay ... 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.”
14. The history of this matter reveals repeated inactivity despite the various opportunities that the Applicant has had to prosecute his suit. Reinstating the suit would undermine the principle of finality in litigation and reward persistent indolence.
15. On costs, the same follows the event. The court has the discretion on whether or not to award costs. This matter has been in the system for over 10 years since the time of filing suit. The suit was dismissed before the hearing commenced. Litigation must come to an end. On this ground, each party to bear its own costs.
Determination
16. Accordingly, the court makes the following orders;
a. The Notice of Motion dated 21/05/2025 lacks merit and is hereby dismissed.
b. Each party to bear its own costs.
Dated and delivered virtually at Mombasa this 25th day of June, 2026
………………………..
HON. F. WANGARI
JUDGE OF THE HIGH COURT
In the presence of: -
Mr. Mramba Advocate h/b for Mr. Waziri Advocate for the Applicant
N/A by the Respondent
Ms. Salwa, Court Assistant
2. In support of the application, the Applicant deponed that he had previously complained to his former advocates on their non-professionalism but thereafter, his calls went unanswered. He all along believed that this matter was active until when he engaged the services of the current lawyer, when he realized that his matter had been dismissed for non-attendance. The discovery was made on 20/05/2025. He subsequently filed his application without any delay.
3. In the Replying Affidavit dated 05/11/2025, the Respondents through their counsel Naomi H. Kinuva deponed that the Applicant had a pending application dated 09/12/2024 seeking to set aside the orders dismissing the suit. Further, the suit belongs to the litigant nit the counsel. This court was invited to look at the record in the matter to establish whether the Applicant deserved the orders as prayed. The Applicant had taken a total of over 8 years without prosecuting his matter, and it is until the suit was dismissed that he seeks to prosecute the suit. The Respondents prayed to have the application dismissed with costs.
4. The application was canvassed by way of written submissions. Both parties complied by filing their rival submissions which I have considered.
Analysis
5. I have considered the application, supporting affidavit and the annexures thereto. and submissions by the parties. The issues for determination are: -
(a) Whether the Appellant established sufficient cause to warrant reinstatement of the suit
(b) Whether reinstatement would occasion prejudice
(c) Who should bear costs
6. On whether the Appellant established sufficient cause to warrant reinstatement of the suit, the Appellant attributed the dismissal of the suit to the negligence of his previous advocates and contended that he was unaware of the dismissal, until when he procured the services of his current lawyer.
7. While courts are generally reluctant to punish litigants for mistakes of counsel, parties also bear a responsibility to follow up their cases. In Bi-Mach Engineers Limited v James Kahoro Mwangi [2011] KECA 242 (KLR), the court emphasized that: -
“The applicant had a duty to pursue his advocates to find out the position on the litigation but there is no disclosure that the applicant bothered to follow up the matter with his erstwhile advocates. It is not enough simply to accuse the advocate of failure to inform as if there is no duty on the client to pursue his matter. If the advocate was simply guilty of inaction, that is not an excusable mistake which the court may consider with some sympathy. The client has a remedy against such an advocate.”
8. It is on record that since the filing if the suit, there has been prolonged inactivity extending over several years. The Applicant took no steps in having the matter set down for hearing. The Applicant cannot state that he was under the believe that the matter was active yet as a party to the suit, he took no action to ensure that the matter is heard and determined.
9. Further, the suit was dismissed on 23/05/2024. The Applicant filed an application to reinstate the suit dated 09/12/2024, 7months after the suit was dismissed. The application has since been disowned by the Applicant and withdrawn. Nevertheless, the Applicant filed this application almost one year after the suit was dismissed. In his Supporting Affidavit, he deponed that he has been following up with his previous advocates on record to know the status of his matter. The only communication between him and his previous advocates are the annexed emails dated 20/05/2025. There is no evidence of communication, to show that the Applicant bothered with the following up of his matter with his advocates.
10. I find that there is no excuse in the delay and prosecuting the suit, and further, in filing the application for reinstatement of suit.
11. On whether reinstatement would occasion prejudice, the prolonged delay inevitably prejudices the fair determination of disputes. Witnesses become unavailable, memories fade and documentary evidence may no longer be readily accessible.
12. The overriding objective under Sections 1A and 1B of the Civil Procedure Act and Article 159(2)(b) of the Constitution requires courts to facilitate the expeditious disposal of cases. Justice is owed not only to plaintiffs but also to defendants who are entitled to finality in litigation.
13. In Ivita v Kyumbu [1984] KLR 441, the court held that: -
“The test is whether the delay is prolonged and inexcusable, and, if it is, can justice be done despite the delay ... 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.”
14. The history of this matter reveals repeated inactivity despite the various opportunities that the Applicant has had to prosecute his suit. Reinstating the suit would undermine the principle of finality in litigation and reward persistent indolence.
15. On costs, the same follows the event. The court has the discretion on whether or not to award costs. This matter has been in the system for over 10 years since the time of filing suit. The suit was dismissed before the hearing commenced. Litigation must come to an end. On this ground, each party to bear its own costs.
Determination
16. Accordingly, the court makes the following orders;
a. The Notice of Motion dated 21/05/2025 lacks merit and is hereby dismissed.
b. Each party to bear its own costs.
Dated and delivered virtually at Mombasa this 25th day of June, 2026
………………………..
HON. F. WANGARI
JUDGE OF THE HIGH COURT
In the presence of: -
Mr. Mramba Advocate h/b for Mr. Waziri Advocate for the Applicant
N/A by the Respondent
Ms. Salwa, Court Assistant