Introduction
1. Before this Court is the Notice of Motion dated 3rd July 2025 by the Plaintiff/Applicant seeking, principally, an order that this Court be pleased to set aside, vary or discharge the orders made on 2nd July 2025 dismissing the suit for want of prosecution, and to reinstate the suit for hearing and determination on the merits.
2. The Application is based on the grounds specified therein, and is supported by the affidavit of Mr. Crispus Kanyi Kiruchi, Advocate, sworn on the same date.
3. The application is opposed by both the 1st and 2nd Respondents. The 1st Respondent filed a replying affidavit sworn by him on 18th July 2025. The 2nd Respondent’s affidavit is dated 9th July 2025.
4. By directions of the Court, the application was canvassed by way of written submissions. The Applicant filed submissions dated 25th July 2025, whereas the 1st and the 2nd Respondents filed their submissions dated 25th August 2025 and 10th September 2025, respectively.
5. The Court has carefully considered pleadings, submissions, together with the court record and applicable law.
6. The suit herein was filed in the year 2021. On 2nd July 2025, the matter was scheduled for hearing. Neither the Plaintiff nor her counsel attended court, and no explanation was tendered at the time. The Court, noting the history of the matter and previous conduct, dismissed the suit for want of prosecution.
7. The Applicant contends that failure to attend court on the said date was occasioned by technical difficulties during virtual proceedings, which made it impossible for counsel to log in or unmute in time before the matter was dismissed. It is urged that the mistake was inadvertent and should not be visited upon the litigant.
8. Relying on Andrew Mbare v Attorney General & 11 others [2021] eKLR, the Applicant asserts that dismissal should be a last resort and that the right to be heard is constitutionally protected.
9. The Respondents, on the other hand, collectively argued that the Applicant has a history of consistent and regular absence from court, and that the 2nd July incident was not an isolated event but a continuation of dilatory conduct in a matter that has been pending since 2021.
10. They relied on the principle in Shah v Mbogo (1967) EA 116, stating that judicial discretion should not assist a party who has deliberately sought to delay the cause of justice.
11. The 2nd Respondent further argued that the Applicant has failed to provide a plausible explanation for the repeated non-attendance.
Analysis and Determination
12. From the pleadings and submissions, the Court identifies that the sole issue for determination is whether the Applicant has demonstrated sufficient cause to warrant the setting aside of the dismissal order.
13. The court’s power to set aside a dismissal for non-attendance is discretionary, as provided under Order 12 Rule 7 of the Civil Procedure Rules, which allows the court to set aside such orders upon such terms as may be just.
14. It is trite that the discretion conferred upon the Court is wide but judicial, and must be exercised to avoid injustice, not to aid indolence or deliberate delay. The guiding principle was aptly stated in Shah v Mbogo & Another (1967) EA 116, that the discretion is intended to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake, but not to assist a party who has deliberately sought to obstruct or delay the course of justice.
15. Both Respondents have submitted, and the record bears out, that the non-attendance on 2nd July 2025 was not an isolated incident, but part of a pattern of non-attendance and lack of diligence on the part of the Plaintiff in prosecuting the suit. The matter has been pending for several years without substantive progress.
16. While the Court notes the Respondents' concerns regarding the age of the suit and the Applicant's alleged previous absences, the specific failure on 2nd July 2025 has been attributed to a technical glitch during a virtual hearing.
17. Technical challenges in the digital transition of the judiciary are recognized as potential sources of inadvertent error. In Kungu & 3 others v Equity Bank (Kenya) Limited & another [2026] KEHC 4950 (KLR), this Court, while allowing an application based on substantially similar facts, stated that:
“In balancing the competing interests and taking into account the existing judicial precedence, the court observes that while the delay since 2019 is significant, driving a party out of the seat of justice without a hearing on the merits should be a last resort, especially where the party claims to have been present for the hearing, as in the present situation.”
18. The Court is alive to the constitutional imperative that disputes ought, where possible, to be determined on the merits, and that dismissal of suits is a draconian measure. Nevertheless, this principle must be balanced against the equally important duty placed upon courts by Article 159(2)(b) of the Constitution, that justice shall not be delayed.
19. In exercising this discretion, the court must balance the need to hear a case on its merits against the need to prevent the abuse of the court process by indolent litigants. The core test is whether the failure to attend was due to accident, inadvertence, or excusable mistake, rather than a deliberate attempt to obstruct justice.
20. In Ivita v Kyumbu [1984] KLR 441, the Court held that the test is whether the delay is prolonged and inexcusable, and whether justice can still be done despite the delay. Justice, it must be emphasized, is justice to both parties. In the present case, the Applicant acted with extreme promptness by filing the reinstatement application only one day after the dismissal.
21. In the premises, the Court finds that it is in the interest of justice to allow the parties to ventilate their case on merit. As held in Andrew Mbare v Attorney General & 11 others [2021] eKLR, Dismissal is indeed a draconian measure that should be used sparingly.
22. Accordingly, the Notice of Motion dated 3rd July 2025 is hereby allowed as follows;
i. The order of this Court made on 2nd July 2025, dismissing the suit for want of prosecution, is hereby set aside.
ii. The suit is reinstated for hearing and determination on merit.
iii. The Applicant shall pay throw-away costs to each of the Respondents as a condition for reinstatement, hereby assessed at Kshs. 30,000/-.
23. It is so ordered.
DATED, SIGNED, AND DELIVERED AT NAIROBI
THIS 17TH DAY OF APRIL 2026
HON. MR. JUSTICE MOSES ADO
Judge of the High Court
In the presence of: -
C/A – Moses
Wachira h/b for Kanyi.…………………. for the Plaintiff
Dr. Kinyajui….……………. for the 1st Defendant
Mureithi…………………..for the 2nd Defendant
1. Before this Court is the Notice of Motion dated 3rd July 2025 by the Plaintiff/Applicant seeking, principally, an order that this Court be pleased to set aside, vary or discharge the orders made on 2nd July 2025 dismissing the suit for want of prosecution, and to reinstate the suit for hearing and determination on the merits.
2. The Application is based on the grounds specified therein, and is supported by the affidavit of Mr. Crispus Kanyi Kiruchi, Advocate, sworn on the same date.
3. The application is opposed by both the 1st and 2nd Respondents. The 1st Respondent filed a replying affidavit sworn by him on 18th July 2025. The 2nd Respondent’s affidavit is dated 9th July 2025.
4. By directions of the Court, the application was canvassed by way of written submissions. The Applicant filed submissions dated 25th July 2025, whereas the 1st and the 2nd Respondents filed their submissions dated 25th August 2025 and 10th September 2025, respectively.
5. The Court has carefully considered pleadings, submissions, together with the court record and applicable law.
6. The suit herein was filed in the year 2021. On 2nd July 2025, the matter was scheduled for hearing. Neither the Plaintiff nor her counsel attended court, and no explanation was tendered at the time. The Court, noting the history of the matter and previous conduct, dismissed the suit for want of prosecution.
7. The Applicant contends that failure to attend court on the said date was occasioned by technical difficulties during virtual proceedings, which made it impossible for counsel to log in or unmute in time before the matter was dismissed. It is urged that the mistake was inadvertent and should not be visited upon the litigant.
8. Relying on Andrew Mbare v Attorney General & 11 others [2021] eKLR, the Applicant asserts that dismissal should be a last resort and that the right to be heard is constitutionally protected.
9. The Respondents, on the other hand, collectively argued that the Applicant has a history of consistent and regular absence from court, and that the 2nd July incident was not an isolated event but a continuation of dilatory conduct in a matter that has been pending since 2021.
10. They relied on the principle in Shah v Mbogo (1967) EA 116, stating that judicial discretion should not assist a party who has deliberately sought to delay the cause of justice.
11. The 2nd Respondent further argued that the Applicant has failed to provide a plausible explanation for the repeated non-attendance.
Analysis and Determination
12. From the pleadings and submissions, the Court identifies that the sole issue for determination is whether the Applicant has demonstrated sufficient cause to warrant the setting aside of the dismissal order.
13. The court’s power to set aside a dismissal for non-attendance is discretionary, as provided under Order 12 Rule 7 of the Civil Procedure Rules, which allows the court to set aside such orders upon such terms as may be just.
14. It is trite that the discretion conferred upon the Court is wide but judicial, and must be exercised to avoid injustice, not to aid indolence or deliberate delay. The guiding principle was aptly stated in Shah v Mbogo & Another (1967) EA 116, that the discretion is intended to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake, but not to assist a party who has deliberately sought to obstruct or delay the course of justice.
15. Both Respondents have submitted, and the record bears out, that the non-attendance on 2nd July 2025 was not an isolated incident, but part of a pattern of non-attendance and lack of diligence on the part of the Plaintiff in prosecuting the suit. The matter has been pending for several years without substantive progress.
16. While the Court notes the Respondents' concerns regarding the age of the suit and the Applicant's alleged previous absences, the specific failure on 2nd July 2025 has been attributed to a technical glitch during a virtual hearing.
17. Technical challenges in the digital transition of the judiciary are recognized as potential sources of inadvertent error. In Kungu & 3 others v Equity Bank (Kenya) Limited & another [2026] KEHC 4950 (KLR), this Court, while allowing an application based on substantially similar facts, stated that:
“In balancing the competing interests and taking into account the existing judicial precedence, the court observes that while the delay since 2019 is significant, driving a party out of the seat of justice without a hearing on the merits should be a last resort, especially where the party claims to have been present for the hearing, as in the present situation.”
18. The Court is alive to the constitutional imperative that disputes ought, where possible, to be determined on the merits, and that dismissal of suits is a draconian measure. Nevertheless, this principle must be balanced against the equally important duty placed upon courts by Article 159(2)(b) of the Constitution, that justice shall not be delayed.
19. In exercising this discretion, the court must balance the need to hear a case on its merits against the need to prevent the abuse of the court process by indolent litigants. The core test is whether the failure to attend was due to accident, inadvertence, or excusable mistake, rather than a deliberate attempt to obstruct justice.
20. In Ivita v Kyumbu [1984] KLR 441, the Court held that the test is whether the delay is prolonged and inexcusable, and whether justice can still be done despite the delay. Justice, it must be emphasized, is justice to both parties. In the present case, the Applicant acted with extreme promptness by filing the reinstatement application only one day after the dismissal.
21. In the premises, the Court finds that it is in the interest of justice to allow the parties to ventilate their case on merit. As held in Andrew Mbare v Attorney General & 11 others [2021] eKLR, Dismissal is indeed a draconian measure that should be used sparingly.
22. Accordingly, the Notice of Motion dated 3rd July 2025 is hereby allowed as follows;
i. The order of this Court made on 2nd July 2025, dismissing the suit for want of prosecution, is hereby set aside.
ii. The suit is reinstated for hearing and determination on merit.
iii. The Applicant shall pay throw-away costs to each of the Respondents as a condition for reinstatement, hereby assessed at Kshs. 30,000/-.
23. It is so ordered.
DATED, SIGNED, AND DELIVERED AT NAIROBI
THIS 17TH DAY OF APRIL 2026
HON. MR. JUSTICE MOSES ADO
Judge of the High Court
In the presence of: -
C/A – Moses
Wachira h/b for Kanyi.…………………. for the Plaintiff
Dr. Kinyajui….……………. for the 1st Defendant
Mureithi…………………..for the 2nd Defendant