1. The Appellant herein is aggrieved by the ruling delivered on 9.10.23 in Kilifi SPMCC No. 79 of 2019 in which the trial Magistrate dismissed her suit for want of prosecution.
2. Following the impugned ruling, the Appellant filed this appeal dated 18.10.23. The summarized grounds of appeal are that the trial Magistrate erred in law and fact by:
1. failing to exercise discretion in favour of the Appellant and dismissing the suit.
2. misapprehending the applicable principles in exercise of discretion.
3. misapprehending the applicable principles in dismissal of suits for want of prosecution.
3. The Appellant prayed that the impugned decision be set aside and that the suit be remitted back to the Magistrate’s court for assessment of damages. She also sought costs of the Appeal.
4. Being a first appeal, this Court is called upon to re-assess and analyze the evidence on record being mindful that it neither saw nor heard the witnesses testify. (See Selle v Associated Motor Boat Co. [1968] EA 123).
5. The record shows that the Appellant instituted the suit against the Respondent seeking damages arising from injuries sustained in a road traffic accident that occurred on 28.10.18. The record further shows that other claims arising from the same accident had been filed in Mariakani Law Courts and that Mariakani CMCC No. 38 of 2019 was to be the test case. The matter was mentioned on diverse dates between 29.7.19 to 13.9.21 during which the trial court was told that the test case was still pending and further mention dates would be given. On 2.9.19, the Respondent’s advocate informed the trial court that they had been served with an order from the Mariakani case staying the suit herein, whereupon the court fixed the matter for mention on 2.12.19. The matter was mentioned on several other dates and on 13.9.21, the trial court was informed that the test case was pending consent on liability and the matter was fixed for mention on 18.10.21. The next time the matter was in court was on 9.10.23 when the suit was dismissed for want of prosecution.
6. It is this order that provoked the Appeal herein. The Appellant filed written submissions while the Respondent opted not to.
7. Order 17 Rule 2 of the Civil Procedure Rules provides for dismissal of suits for want of prosecution as follows:
(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.
(5) A suit stands dismissed after two years where no step has been undertaken.
(6) A party may apply to court after dismissal of a suit under this Order.
8. The above provision confers upon the courts the discretion to dismiss cases for want of prosecution. This discretion must however be exercised judicially. Further, discretion must be exercised in a manner that achieves the interests of justice. In the case of Shah v Mbogo [1967] EA 116, the Court of Appeal stated:
This discretion is intended to be exercised to avoid injustice or hardship resulting from accident inadvertence, or excusable mistake or error, but is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the course of justice.
9. In the present case, it is noted that the Appellant was always represented in all court appearances including the date when the suit was dismissed. There is nothing on record to show a deliberate obstruction or delay of the course of justice on the part of the Appellant.
10. The record shows that in the impugned order, the trial Magistrate stated:
I am not satisfied that the court file was missing. No evidence of email or correspondence to court in that regard as purported in annexure JKK -4 16. Suit dismissed for want of prosecution.
11. The circumstances herein are that there was a test case proceeding in the court in Mariakani on liability, which had a bearing on the Appellant’s suit. In the last appearance before the suit was dismissed, the trial court was informed that the test case was pending consent on liability.
12. The record shows that on 9.10.23 when the suit was dismissed, the learned Magistrate did not give the Appellant’s counsel an opportunity to show cause why the suit should not be dismissed. Rather, after recording the coram, the learned Magistrate proceeded to dismiss the suit for want of prosecution.
13. The decision of the trial court is in my view rather drastic. The trial court ought to have inquired on the outcome of the test case, before making the decision to dismiss the suit, in order to avoid injustice. In this regard, I associate with Aburili, J. who in Nilesh Premchand Mulji Shah & another t/a Ketan Emporium v M.D. Popat and others & another [2016] eKLR stated:
Nonetheless, Article 159 of the Constitution and Order 17 Rule 2(3) gives the court the discretion to dismiss the suit where no action has been taken for one year and on application by a party as justice delayed without explanation is justice denied and delay defeats equity. That discretion must be exercised on the basis that it is in the interest of justice regard being had to whether the party instituting the suit has lost interest in it, or whether the delay in prosecuting the suit is inordinate, unreasonable, inexcusable, and is likely to cause serious prejudice to the defendant on account of that delay.
14. It is well settled that no suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action. As a court of justice, the trial Magistrate was enjoined to aim at sustaining the suit rather than terminating it by summary dismissal. See D.T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & another [1980] eKLR. The trial Magistrate ought not to have dismissed the suit without seeking to know from the Appellant, the outcome of the test suit.
15. Article 50 of the Constitution guarantees to every person the right to a fair trial. Clause (1) provides that every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body. The Appellant had the right to have her suit heard and determined on merit, by the court below. In the premises, I do find that, given its ramifications, the order of the trial court dismissing the suit in its entirety for want of prosecution was drastic and unjustifiable.
16. In the end and in view of the foregoing, I find that the Appeal is merited and make the following orders:
i) The order of the trial Magistrate of 9.10.23 is hereby set aside.
ii) Kilifi SPMCC No. 79 of 2019 is reinstated for hearing and determination on merit by a Magistrate other than Hon. S. D. Sitati.
iii) The Appellant shall have costs of this Appeal.
DATED SIGNED and DELIVERED in MALINDI this 18th day of September 2026
2. Following the impugned ruling, the Appellant filed this appeal dated 18.10.23. The summarized grounds of appeal are that the trial Magistrate erred in law and fact by:
1. failing to exercise discretion in favour of the Appellant and dismissing the suit.
2. misapprehending the applicable principles in exercise of discretion.
3. misapprehending the applicable principles in dismissal of suits for want of prosecution.
3. The Appellant prayed that the impugned decision be set aside and that the suit be remitted back to the Magistrate’s court for assessment of damages. She also sought costs of the Appeal.
4. Being a first appeal, this Court is called upon to re-assess and analyze the evidence on record being mindful that it neither saw nor heard the witnesses testify. (See Selle v Associated Motor Boat Co. [1968] EA 123).
5. The record shows that the Appellant instituted the suit against the Respondent seeking damages arising from injuries sustained in a road traffic accident that occurred on 28.10.18. The record further shows that other claims arising from the same accident had been filed in Mariakani Law Courts and that Mariakani CMCC No. 38 of 2019 was to be the test case. The matter was mentioned on diverse dates between 29.7.19 to 13.9.21 during which the trial court was told that the test case was still pending and further mention dates would be given. On 2.9.19, the Respondent’s advocate informed the trial court that they had been served with an order from the Mariakani case staying the suit herein, whereupon the court fixed the matter for mention on 2.12.19. The matter was mentioned on several other dates and on 13.9.21, the trial court was informed that the test case was pending consent on liability and the matter was fixed for mention on 18.10.21. The next time the matter was in court was on 9.10.23 when the suit was dismissed for want of prosecution.
6. It is this order that provoked the Appeal herein. The Appellant filed written submissions while the Respondent opted not to.
7. Order 17 Rule 2 of the Civil Procedure Rules provides for dismissal of suits for want of prosecution as follows:
(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.
(5) A suit stands dismissed after two years where no step has been undertaken.
(6) A party may apply to court after dismissal of a suit under this Order.
8. The above provision confers upon the courts the discretion to dismiss cases for want of prosecution. This discretion must however be exercised judicially. Further, discretion must be exercised in a manner that achieves the interests of justice. In the case of Shah v Mbogo [1967] EA 116, the Court of Appeal stated:
This discretion is intended to be exercised to avoid injustice or hardship resulting from accident inadvertence, or excusable mistake or error, but is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the course of justice.
9. In the present case, it is noted that the Appellant was always represented in all court appearances including the date when the suit was dismissed. There is nothing on record to show a deliberate obstruction or delay of the course of justice on the part of the Appellant.
10. The record shows that in the impugned order, the trial Magistrate stated:
I am not satisfied that the court file was missing. No evidence of email or correspondence to court in that regard as purported in annexure JKK -4 16. Suit dismissed for want of prosecution.
11. The circumstances herein are that there was a test case proceeding in the court in Mariakani on liability, which had a bearing on the Appellant’s suit. In the last appearance before the suit was dismissed, the trial court was informed that the test case was pending consent on liability.
12. The record shows that on 9.10.23 when the suit was dismissed, the learned Magistrate did not give the Appellant’s counsel an opportunity to show cause why the suit should not be dismissed. Rather, after recording the coram, the learned Magistrate proceeded to dismiss the suit for want of prosecution.
13. The decision of the trial court is in my view rather drastic. The trial court ought to have inquired on the outcome of the test case, before making the decision to dismiss the suit, in order to avoid injustice. In this regard, I associate with Aburili, J. who in Nilesh Premchand Mulji Shah & another t/a Ketan Emporium v M.D. Popat and others & another [2016] eKLR stated:
Nonetheless, Article 159 of the Constitution and Order 17 Rule 2(3) gives the court the discretion to dismiss the suit where no action has been taken for one year and on application by a party as justice delayed without explanation is justice denied and delay defeats equity. That discretion must be exercised on the basis that it is in the interest of justice regard being had to whether the party instituting the suit has lost interest in it, or whether the delay in prosecuting the suit is inordinate, unreasonable, inexcusable, and is likely to cause serious prejudice to the defendant on account of that delay.
14. It is well settled that no suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action. As a court of justice, the trial Magistrate was enjoined to aim at sustaining the suit rather than terminating it by summary dismissal. See D.T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & another [1980] eKLR. The trial Magistrate ought not to have dismissed the suit without seeking to know from the Appellant, the outcome of the test suit.
15. Article 50 of the Constitution guarantees to every person the right to a fair trial. Clause (1) provides that every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body. The Appellant had the right to have her suit heard and determined on merit, by the court below. In the premises, I do find that, given its ramifications, the order of the trial court dismissing the suit in its entirety for want of prosecution was drastic and unjustifiable.
16. In the end and in view of the foregoing, I find that the Appeal is merited and make the following orders:
i) The order of the trial Magistrate of 9.10.23 is hereby set aside.
ii) Kilifi SPMCC No. 79 of 2019 is reinstated for hearing and determination on merit by a Magistrate other than Hon. S. D. Sitati.
iii) The Appellant shall have costs of this Appeal.
DATED SIGNED and DELIVERED in MALINDI this 18th day of September 2026