LYLE ASILIGWA ……………………..……....................... APPELLANT
VERSUS
THE STANDARD GROUP PLC ………..……………………RESPONDENT
(Being an appeal against the Ruling delivered on 31st July 2025 by Hon. William Lopokoiyit, Senior Resident Magistrate, in Milimani CMCC No. 308 of 2023, previously HCCC No. E070 of 2020)
JUDGMENT
Introduction
1. This appeal arises from the Ruling of the Senior Resident Magistrate delivered on 31st July 2025 in MCCC No. 308 of 2023, whereby the Appellant’s application dated 28th March 2025 seeking reinstatement of the suit was dismissed with costs to the Respondent.
2. The suit had been dismissed suo motu on 17th March 2025 for want of prosecution, the trial court noting that the Appellant had not taken steps to fix a hearing date since 3rd August, 2023.
Background
3. The suit was instituted by way of Plaint dated 21st August 2020 at the high court in HCCC No. E070 of 2020 and subsequently transferred to the Magistrate's Court. On 3rd August 2023, Hon. L.B. Koech certified the matter ready for hearing, minuting that “parties to move the court for a hearing date once ready”, the Court Tracking System (CTS) confirming no hearing date was issued on that occasion.
4. By letter dated 5th October 2023 (Exhibit “CK-3”), the Appellant's advocates requested a hearing date, noting that despite repeated visits to the registry they had been informed that dates would be issued online. A handwritten endorsement on that letter records that counsel's clerk proceeded to Hon. Koech's court and “found that the matter has been given a mention date on 6.5.2024.”
5. The matter was not mentioned on 6th May 2024, the court file not having been placed before the court. By July 2024, the Appellant's counsel, on checking the CTS, found that the court had unilaterally fixed the matter for mention on 11th February 2025. A Mention Notice dated 10th July 2024 was served on the Respondent's advocates on 10th July 2024, evidenced by an Affidavit of Service sworn by the process server Fredrick K. Korir (Exhibit “CK-5”).
6. On 5th February 2025, the Appellant's counsel received a text message from the court rescheduling the mention, without explanation, from 11th February 2025 to 17th March 2025.
7. On 17th March 2025, the Appellant's counsel did not appear, having, on her account, encountered a “Certificate Authority Invalid” error when attempting to log into the virtual session and having contacted the court's helpline, which confirmed ongoing technical issues. The Respondent's counsel was present and, per the trial court's own Ruling, submitted that the Appellant “appeared to have lost interest in prosecuting the matter.” The court thereupon dismissed the suit suo motu for want of prosecution, without prior notice to show cause.
8. The Appellant's reinstatement application of 28th March 2025 was unopposed. The Respondent filed no response and did not attend either the hearing of 15th July 2025 or the delivery of the Ruling on 31st July 2025. The Ruling nonetheless dismissed the application, with costs to the Respondent, on the footing that the Appellant had not accounted for the period between 5th October 2023 and 17th March 2025.
APPEAL
9. Aggrieved by the said dismissal of the reinstatement application, the appellant preferred this appeal dated 26th August 2025 premised on twelve grounds, which the parties, in their written submissions, helpfully grouped into five issues:
a) Whether the trial court erred in law by dismissing the suit on a date fixed for mention, without a Notice to Show Cause?
b) Whether the court failed to acknowledge the uncontroverted chronology showing the delay was court-occasioned?
c) Whether the reason for counsel’s absence on 17th March 2025 was unreasonably rejected?
d) Whether the dismissal and refusal to reinstate offended natural justice and ignored the absence of prejudice to the Respondent? And
e) Whether costs were properly awarded to a non-participating Respondent?
ANALYSIS AND DETERMINATION
10. Both parties have correctly identify this as an appeal against the exercise of judicial discretion. The applicable appellate test was stated by the Court of Appeal in Eurobank Limited v Shah Munge & Partners (2016) eKLR, cited by the Appellant:
“…this is an appeal against exercise of discretion by the learned judge. The guiding principle in that respect is that an appellate court will not interfere with exercise of discretion by the trial court unless it is demonstrated that the trial court misdirected itself, or considered matters it should not have considered, or failed to take into account matters which it should have taken into account, and in so doing arrived at the wrong decision.”
11. The Respondent relies on the same formulation via Habo Agencies Limited v Wilfred Odhiambo Musingo [2015] eKLR, and on Ivita v Kyumbu [1984] KLR 441 for the test on dismissal for want of prosecution as whether the delay is prolonged and inexcusable and, if so, whether justice can nevertheless be done despite the delay. These authorities are not in dispute; what is in dispute is their application to this record.
I. Was the suo motu dismissal on a mention date, without notice to show cause, procedurally sound?
12. Order 17 Rule 2(1) of the Civil Procedure Rules contemplates a specific mechanism. It provides thus:
“(1) In any suit in which no application has been made or step taken by either party for one year, the court may give notice in writing to the parties to show cause why the suit should not be dismissed, and if cause is not shown to its satisfaction, may dismiss the suit.
(2) If cause is shown to the satisfaction of the court, it may make such orders as it thinks fit to obtain expeditious hearing of the suit.
(3) Any party to the suit may apply for its dismissal as provided in sub-rule 1.
(4) The court may dismiss the suit for non-compliance with any direction given under this Order.”
13. Upon this court’s analysis of the record, it is evident that this is not what occurred before the trial court. No prior direction had been issued and breached. What occurred on 17th March 2025 was a suo motu dismissal, on a date listed only for mention, in the absence of the Appellant's counsel, without any notice to show cause preceding it and without the Appellant being heard on the question of dismissal at all.
14. The Court of Appeal in Rahab Wanjiku v Esso Kenya Limited [1995-1998] EA 332, cited by the Appellant, is directly in point:
“Where a matter is fixed for mention, the court has no business determining the substantive issues therein on that date, and it can only do so, if the parties so agree and of course after having complied with the elementary procedure of hearing what submissions counsel may wish to make on behalf of the parties. There must be good reasons for adopting a contrary procedure repugnant to the administration of justice.”
15. The principle as codified under Order 17 Rule 2 (1) of the Civil Procedure Rules must be construed in concomitant with the right to be heard under Article 50(1) of the Constitution and the plethora of authorities on the principle of natural-justice, including but not limited to the case of Onyango v Attorney General (1986-1989) EA 456, where Nyarangi JA held that:
“a decision in breach of the rules of natural justice is not cured by holding that the decision would otherwise have been right”
16. The foregoing principles support the Appellant's position that a party ought ordinarily to have an opportunity to be heard before the ultimate sanction of dismissal is visited upon it. Particularly where, as here, the record shows the court itself had generated the immediately preceding sequence of rescheduling’s (6th May 2024, then 11th February 2025, then 17th March 2025) without any default on record by the Appellant.
17. The Respondent's contention that Order 17 Rule 2 is concerned with “the existence of delay, rather than the nomenclature attached to the particular court appearance,” relying on Caledonia Supermarket Limited v Kenya National Examinations Council [2013] eKLR is not without force. I further agree that a procedural irregularity of this kind does not automatically entitle a litigant to reinstatement. It must still be shown that the irregularity, in combination with the substantive record, produced an unjust result. It is to that substantive record that I now turn.
II. Was the delay in fact prolonged and inexcusable?
18. The trial court's central finding was that the Appellant “made no effective effort to fix a hearing date” after 5th October 2023, and that the ensuing period which it measured to 17th March 2025 was unexplained. That finding does not sit easily with the documentary record now before this Court.
19. The CTS printout (Exhibit “CK-4”) itself confirms that the matter was certified ready for hearing on 3rd August 2023 with an express minute that it was for the parties to move the court once a date was available thus placing an obligation of diligence on both sides, not the Appellant alone. The letter of 5th October 2023 (Exhibit “CK-3”) plainly demonstrates a step taken to prosecute the suit, and its handwritten endorsement shows the appellant’s counsel's clerk personally following up at the assigned courtroom and being informed of a mention date of 6th May 2024 a date fixed by the court itself.
20. Critically, the record does not stop in October 2023. The sworn Affidavit of Service of Fredrick K. Korir (Exhibit “CK-5”) establishes that on 10th July 2024 the Appellant served the Respondent's advocates with a Mention Notice reflecting that the matter had been fixed by the court for mention on 11th February 2025. That act of service undertaken after the Appellant's counsel had checked the CTS and discovered the court's own scheduling of the matter was itself a step taken in prosecution of the suit, materially narrowing any period of true inactivity chargeable to the Appellant. The subsequent rescheduling’s, from 11th February 2025 to 17th March 2025, were communicated unilaterally by the court by text message, without explanation and without any input from either party.
21. On this record, the finding that the Appellant “did not take any tangible steps to prosecute the suit” for a continuous period exceeding one year and five months does not withstand scrutiny. The learned Magistrate, in my respectful view, either overlooked or failed to give appropriate weight to the CTS entries, the letter of 5th October 2023 with it’s endorsement, and most significantly the Mention Notice served on 10th July 2024, all of which were before the trial court as annexures to the supporting affidavit.
22. This is precisely the category of misdirection contemplated in Eurobank v Shah Munge (supra), a failure to take into account matters which the court should have taken into account.
23. The Court of Appeal's reasoning in David Kimei v Energy Regulation Commission & Others, Civil Appeal No. 408 of 2018, is also instructive by analogy:
“The appellant took sufficient steps to set down the suit for hearing... There was also the explanation by the appellant that earlier hearing dates were not available... The appellant cannot be faulted for the predicament he found himself in. Had the learned Judge considered all these factors, she would definitely have arrived at a different conclusion... The appellant cannot justifiably be accused of inexcusable indolence.”
24. That reasoning applies with equal force here. A litigant who has certified readiness, written to the registry, attended upon the assigned courtroom, monitored the CTS, and served mention notices as and when the court itself generated dates, cannot fairly be characterized as indolent merely because the court's own diary moved slowly or was rescheduled without explanation.
III. Was the explanation for counsel's absence on 17th March 2025 reasonable?
25. Even taken in isolation, the explanation for the Appellant's absence on the day of dismissal a documented “Certificate Authority Invalid” error and contemporaneous calls to the court's technical helpline (Exhibits “CK-7” and “CK-8”) was a specific, evidenced explanation going to a single, discrete day, and ought to have been assessed as such. The trial court's ruling treated this explanation as incapable, on its own, of curing what it perceived as the preceding fifteen months of inactivity.
26. Given my findings hereinabove, that preceding period was not, in truth, a period of unexplained inactivity. The technical-difficulty evidence therefore did not need to carry the additional weight the trial court placed on it; it needed only to explain the single day, which it did.
IV. Prejudice and the interests of justice
27. It is relevant, though not determinative on its own, that the Respondent's counsel was present on 17th March 2025 and on the trial court's own account engaged with the merits of the matter, rather than treating the suit as abandoned. It is noteworthy that the counsel actually sought for a hearing date as opposed to the dismissal of the suit for non-attendance. The Respondent also did not participate at all in the reinstatement application, filing no response and attending to neither the hearing nor the delivery of the Ruling.
28. No prejudice specific to the Respondent, whether to the availability of evidence or witnesses or otherwise, was asserted before the trial court or demonstrated on this record. Article 159(2)(d) of the Constitution enjoins courts to administer justice without undue regard to procedural technicalities. The dismissal of a suit is a draconian measure of last resort, to be reserved for cases of real and demonstrated inexcusable delay causing prejudice a case not made out here.
29. Taking the procedural irregularity identified hereinabove, together with the substantive misdirection identified, I am satisfied that this is a case in which the threshold for appellate interference under Eurobank v Shah Munge(supra) and Habo Agencies v Musingo (supra) is met. The trial court considered the case as though a discrete, unexplained fifteen-month gap existed, when the record it had before it showed a continuous, if occasionally slow, chain of engagement substantially driven by the court's own scheduling processes.
V. Costs of the reinstatement application
30. Costs are, ordinarily, discretionary and follow the event under Section 27 of the Civil Procedure Act. However, an award of costs presupposes a “successful party” who has incurred costs in relation to the proceeding in question. The Respondent neither filed a response to, nor appeared at the hearing or delivery of the ruling on, the application dated 28th March 2025.
31. The Supreme Court's observation in Okoiti & 2 Others v Attorney General & 14 Others [2023] KESC 31 (KLR) is apposite:
“Costs are not awarded to a party that has not spent time or resources in prosecuting or defending a matter and the ‘costs follow the event’ principle would in the circumstances not be applicable.”
32. In the absence of any demonstrated engagement by the Respondent with that specific application, the award of costs to it cannot stand.
33. Premised upon the foregoing reasons, I find that the Appellant has demonstrated that the learned Senior Resident Magistrate misdirected himself by failing to take into account relevant and uncontroverted documentary evidence bearing directly on the question of delay, and further erred in dismissing the suit suo motu on a mention date without affording the Appellant an opportunity to be heard. The appeal succeeds.
34. Consequently, it is hereby ordered:
A. The appeal be and is hereby allowed.
B. The Ruling of the learned Senior Resident Magistrate delivered on 31st July 2025 in MCCC No. 308 of 2023, together with the order dismissing the suit on 17th March 2025, be and are hereby set aside.
C. MCCC No. 308 of 2023 be and is hereby reinstated, to be heard and determined on its merits before a Magistrate other than Hon. William Lopokoiyit.
D. The matter be set down for hearing on priority basis considering its age.
E. The order for costs made against the Appellant in the Ruling of 31st July 2025 be and is hereby set aside.
F. Each party to bear it’s own cost of this appeal.
It is so ordered.
DATED, SIGNED AND DELIVERED AT NAIROBI
THIS 22 DAY OF SEPTEMBER 2026.
M. SHARIFF
JUDGE
VERSUS
THE STANDARD GROUP PLC ………..……………………RESPONDENT
(Being an appeal against the Ruling delivered on 31st July 2025 by Hon. William Lopokoiyit, Senior Resident Magistrate, in Milimani CMCC No. 308 of 2023, previously HCCC No. E070 of 2020)
JUDGMENT
Introduction
1. This appeal arises from the Ruling of the Senior Resident Magistrate delivered on 31st July 2025 in MCCC No. 308 of 2023, whereby the Appellant’s application dated 28th March 2025 seeking reinstatement of the suit was dismissed with costs to the Respondent.
2. The suit had been dismissed suo motu on 17th March 2025 for want of prosecution, the trial court noting that the Appellant had not taken steps to fix a hearing date since 3rd August, 2023.
Background
3. The suit was instituted by way of Plaint dated 21st August 2020 at the high court in HCCC No. E070 of 2020 and subsequently transferred to the Magistrate's Court. On 3rd August 2023, Hon. L.B. Koech certified the matter ready for hearing, minuting that “parties to move the court for a hearing date once ready”, the Court Tracking System (CTS) confirming no hearing date was issued on that occasion.
4. By letter dated 5th October 2023 (Exhibit “CK-3”), the Appellant's advocates requested a hearing date, noting that despite repeated visits to the registry they had been informed that dates would be issued online. A handwritten endorsement on that letter records that counsel's clerk proceeded to Hon. Koech's court and “found that the matter has been given a mention date on 6.5.2024.”
5. The matter was not mentioned on 6th May 2024, the court file not having been placed before the court. By July 2024, the Appellant's counsel, on checking the CTS, found that the court had unilaterally fixed the matter for mention on 11th February 2025. A Mention Notice dated 10th July 2024 was served on the Respondent's advocates on 10th July 2024, evidenced by an Affidavit of Service sworn by the process server Fredrick K. Korir (Exhibit “CK-5”).
6. On 5th February 2025, the Appellant's counsel received a text message from the court rescheduling the mention, without explanation, from 11th February 2025 to 17th March 2025.
7. On 17th March 2025, the Appellant's counsel did not appear, having, on her account, encountered a “Certificate Authority Invalid” error when attempting to log into the virtual session and having contacted the court's helpline, which confirmed ongoing technical issues. The Respondent's counsel was present and, per the trial court's own Ruling, submitted that the Appellant “appeared to have lost interest in prosecuting the matter.” The court thereupon dismissed the suit suo motu for want of prosecution, without prior notice to show cause.
8. The Appellant's reinstatement application of 28th March 2025 was unopposed. The Respondent filed no response and did not attend either the hearing of 15th July 2025 or the delivery of the Ruling on 31st July 2025. The Ruling nonetheless dismissed the application, with costs to the Respondent, on the footing that the Appellant had not accounted for the period between 5th October 2023 and 17th March 2025.
APPEAL
9. Aggrieved by the said dismissal of the reinstatement application, the appellant preferred this appeal dated 26th August 2025 premised on twelve grounds, which the parties, in their written submissions, helpfully grouped into five issues:
a) Whether the trial court erred in law by dismissing the suit on a date fixed for mention, without a Notice to Show Cause?
b) Whether the court failed to acknowledge the uncontroverted chronology showing the delay was court-occasioned?
c) Whether the reason for counsel’s absence on 17th March 2025 was unreasonably rejected?
d) Whether the dismissal and refusal to reinstate offended natural justice and ignored the absence of prejudice to the Respondent? And
e) Whether costs were properly awarded to a non-participating Respondent?
ANALYSIS AND DETERMINATION
10. Both parties have correctly identify this as an appeal against the exercise of judicial discretion. The applicable appellate test was stated by the Court of Appeal in Eurobank Limited v Shah Munge & Partners (2016) eKLR, cited by the Appellant:
“…this is an appeal against exercise of discretion by the learned judge. The guiding principle in that respect is that an appellate court will not interfere with exercise of discretion by the trial court unless it is demonstrated that the trial court misdirected itself, or considered matters it should not have considered, or failed to take into account matters which it should have taken into account, and in so doing arrived at the wrong decision.”
11. The Respondent relies on the same formulation via Habo Agencies Limited v Wilfred Odhiambo Musingo [2015] eKLR, and on Ivita v Kyumbu [1984] KLR 441 for the test on dismissal for want of prosecution as whether the delay is prolonged and inexcusable and, if so, whether justice can nevertheless be done despite the delay. These authorities are not in dispute; what is in dispute is their application to this record.
I. Was the suo motu dismissal on a mention date, without notice to show cause, procedurally sound?
12. Order 17 Rule 2(1) of the Civil Procedure Rules contemplates a specific mechanism. It provides thus:
“(1) In any suit in which no application has been made or step taken by either party for one year, the court may give notice in writing to the parties to show cause why the suit should not be dismissed, and if cause is not shown to its satisfaction, may dismiss the suit.
(2) If cause is shown to the satisfaction of the court, it may make such orders as it thinks fit to obtain expeditious hearing of the suit.
(3) Any party to the suit may apply for its dismissal as provided in sub-rule 1.
(4) The court may dismiss the suit for non-compliance with any direction given under this Order.”
13. Upon this court’s analysis of the record, it is evident that this is not what occurred before the trial court. No prior direction had been issued and breached. What occurred on 17th March 2025 was a suo motu dismissal, on a date listed only for mention, in the absence of the Appellant's counsel, without any notice to show cause preceding it and without the Appellant being heard on the question of dismissal at all.
14. The Court of Appeal in Rahab Wanjiku v Esso Kenya Limited [1995-1998] EA 332, cited by the Appellant, is directly in point:
“Where a matter is fixed for mention, the court has no business determining the substantive issues therein on that date, and it can only do so, if the parties so agree and of course after having complied with the elementary procedure of hearing what submissions counsel may wish to make on behalf of the parties. There must be good reasons for adopting a contrary procedure repugnant to the administration of justice.”
15. The principle as codified under Order 17 Rule 2 (1) of the Civil Procedure Rules must be construed in concomitant with the right to be heard under Article 50(1) of the Constitution and the plethora of authorities on the principle of natural-justice, including but not limited to the case of Onyango v Attorney General (1986-1989) EA 456, where Nyarangi JA held that:
“a decision in breach of the rules of natural justice is not cured by holding that the decision would otherwise have been right”
16. The foregoing principles support the Appellant's position that a party ought ordinarily to have an opportunity to be heard before the ultimate sanction of dismissal is visited upon it. Particularly where, as here, the record shows the court itself had generated the immediately preceding sequence of rescheduling’s (6th May 2024, then 11th February 2025, then 17th March 2025) without any default on record by the Appellant.
17. The Respondent's contention that Order 17 Rule 2 is concerned with “the existence of delay, rather than the nomenclature attached to the particular court appearance,” relying on Caledonia Supermarket Limited v Kenya National Examinations Council [2013] eKLR is not without force. I further agree that a procedural irregularity of this kind does not automatically entitle a litigant to reinstatement. It must still be shown that the irregularity, in combination with the substantive record, produced an unjust result. It is to that substantive record that I now turn.
II. Was the delay in fact prolonged and inexcusable?
18. The trial court's central finding was that the Appellant “made no effective effort to fix a hearing date” after 5th October 2023, and that the ensuing period which it measured to 17th March 2025 was unexplained. That finding does not sit easily with the documentary record now before this Court.
19. The CTS printout (Exhibit “CK-4”) itself confirms that the matter was certified ready for hearing on 3rd August 2023 with an express minute that it was for the parties to move the court once a date was available thus placing an obligation of diligence on both sides, not the Appellant alone. The letter of 5th October 2023 (Exhibit “CK-3”) plainly demonstrates a step taken to prosecute the suit, and its handwritten endorsement shows the appellant’s counsel's clerk personally following up at the assigned courtroom and being informed of a mention date of 6th May 2024 a date fixed by the court itself.
20. Critically, the record does not stop in October 2023. The sworn Affidavit of Service of Fredrick K. Korir (Exhibit “CK-5”) establishes that on 10th July 2024 the Appellant served the Respondent's advocates with a Mention Notice reflecting that the matter had been fixed by the court for mention on 11th February 2025. That act of service undertaken after the Appellant's counsel had checked the CTS and discovered the court's own scheduling of the matter was itself a step taken in prosecution of the suit, materially narrowing any period of true inactivity chargeable to the Appellant. The subsequent rescheduling’s, from 11th February 2025 to 17th March 2025, were communicated unilaterally by the court by text message, without explanation and without any input from either party.
21. On this record, the finding that the Appellant “did not take any tangible steps to prosecute the suit” for a continuous period exceeding one year and five months does not withstand scrutiny. The learned Magistrate, in my respectful view, either overlooked or failed to give appropriate weight to the CTS entries, the letter of 5th October 2023 with it’s endorsement, and most significantly the Mention Notice served on 10th July 2024, all of which were before the trial court as annexures to the supporting affidavit.
22. This is precisely the category of misdirection contemplated in Eurobank v Shah Munge (supra), a failure to take into account matters which the court should have taken into account.
23. The Court of Appeal's reasoning in David Kimei v Energy Regulation Commission & Others, Civil Appeal No. 408 of 2018, is also instructive by analogy:
“The appellant took sufficient steps to set down the suit for hearing... There was also the explanation by the appellant that earlier hearing dates were not available... The appellant cannot be faulted for the predicament he found himself in. Had the learned Judge considered all these factors, she would definitely have arrived at a different conclusion... The appellant cannot justifiably be accused of inexcusable indolence.”
24. That reasoning applies with equal force here. A litigant who has certified readiness, written to the registry, attended upon the assigned courtroom, monitored the CTS, and served mention notices as and when the court itself generated dates, cannot fairly be characterized as indolent merely because the court's own diary moved slowly or was rescheduled without explanation.
III. Was the explanation for counsel's absence on 17th March 2025 reasonable?
25. Even taken in isolation, the explanation for the Appellant's absence on the day of dismissal a documented “Certificate Authority Invalid” error and contemporaneous calls to the court's technical helpline (Exhibits “CK-7” and “CK-8”) was a specific, evidenced explanation going to a single, discrete day, and ought to have been assessed as such. The trial court's ruling treated this explanation as incapable, on its own, of curing what it perceived as the preceding fifteen months of inactivity.
26. Given my findings hereinabove, that preceding period was not, in truth, a period of unexplained inactivity. The technical-difficulty evidence therefore did not need to carry the additional weight the trial court placed on it; it needed only to explain the single day, which it did.
IV. Prejudice and the interests of justice
27. It is relevant, though not determinative on its own, that the Respondent's counsel was present on 17th March 2025 and on the trial court's own account engaged with the merits of the matter, rather than treating the suit as abandoned. It is noteworthy that the counsel actually sought for a hearing date as opposed to the dismissal of the suit for non-attendance. The Respondent also did not participate at all in the reinstatement application, filing no response and attending to neither the hearing nor the delivery of the Ruling.
28. No prejudice specific to the Respondent, whether to the availability of evidence or witnesses or otherwise, was asserted before the trial court or demonstrated on this record. Article 159(2)(d) of the Constitution enjoins courts to administer justice without undue regard to procedural technicalities. The dismissal of a suit is a draconian measure of last resort, to be reserved for cases of real and demonstrated inexcusable delay causing prejudice a case not made out here.
29. Taking the procedural irregularity identified hereinabove, together with the substantive misdirection identified, I am satisfied that this is a case in which the threshold for appellate interference under Eurobank v Shah Munge(supra) and Habo Agencies v Musingo (supra) is met. The trial court considered the case as though a discrete, unexplained fifteen-month gap existed, when the record it had before it showed a continuous, if occasionally slow, chain of engagement substantially driven by the court's own scheduling processes.
V. Costs of the reinstatement application
30. Costs are, ordinarily, discretionary and follow the event under Section 27 of the Civil Procedure Act. However, an award of costs presupposes a “successful party” who has incurred costs in relation to the proceeding in question. The Respondent neither filed a response to, nor appeared at the hearing or delivery of the ruling on, the application dated 28th March 2025.
31. The Supreme Court's observation in Okoiti & 2 Others v Attorney General & 14 Others [2023] KESC 31 (KLR) is apposite:
“Costs are not awarded to a party that has not spent time or resources in prosecuting or defending a matter and the ‘costs follow the event’ principle would in the circumstances not be applicable.”
32. In the absence of any demonstrated engagement by the Respondent with that specific application, the award of costs to it cannot stand.
33. Premised upon the foregoing reasons, I find that the Appellant has demonstrated that the learned Senior Resident Magistrate misdirected himself by failing to take into account relevant and uncontroverted documentary evidence bearing directly on the question of delay, and further erred in dismissing the suit suo motu on a mention date without affording the Appellant an opportunity to be heard. The appeal succeeds.
34. Consequently, it is hereby ordered:
A. The appeal be and is hereby allowed.
B. The Ruling of the learned Senior Resident Magistrate delivered on 31st July 2025 in MCCC No. 308 of 2023, together with the order dismissing the suit on 17th March 2025, be and are hereby set aside.
C. MCCC No. 308 of 2023 be and is hereby reinstated, to be heard and determined on its merits before a Magistrate other than Hon. William Lopokoiyit.
D. The matter be set down for hearing on priority basis considering its age.
E. The order for costs made against the Appellant in the Ruling of 31st July 2025 be and is hereby set aside.
F. Each party to bear it’s own cost of this appeal.
It is so ordered.
DATED, SIGNED AND DELIVERED AT NAIROBI
THIS 22 DAY OF SEPTEMBER 2026.
M. SHARIFF
JUDGE