The Appellant/Applicant has moved this Court by a Notice of Motion dated 23rd October 2025 seeking, inter alia, that the orders issued on 29th November 2023 dismissing this appeal for want of prosecution be set aside and that he be granted leave to prosecute the appeal within 45 days.
The application is premised on the grounds on its face and is supported by the Applicant’s affidavit sworn on the same date. The Applicant avers that prior to the dismissal of the appeal, he had already filed the Record of Appeal and was not notified that the matter had been listed for Notice to Show Cause. He contends that he has always been desirous of prosecuting the appeal and urges the Court to allow the application in the interest of justice.
The application is opposed. The Respondent filed a Replying Affidavit sworn on 4th February 2026, deposing that the Applicant has persistently filed multiple suits and applications touching on the same subject matter before various courts. He lists several matters allegedly filed by the Applicant, including proceedings before the High Court at Embu, Kerugoya, Runyenjes, and other subordinate courts. The Respondent contends that the present application is an abuse of the court process, is brought after inordinate delay of approximately two years, and that no sufficient explanation has been offered. He further alleges that the Applicant is in contempt of court orders and urges the Court to decline the application.
The parties elected not to file written submissions.
Issues for Determination
The singular issue for determination is whether the Applicant has made a case for setting aside the dismissal order issued on 29th November 2023.
Analysis and Determination
The power of the Court to set aside an order dismissing a suit for want of prosecution is discretionary. This discretion must, however, be exercised judiciously and on the basis of sound legal principles. The applicable framework is found under Order 12 Rule 7 and Order 17 Rule 2 of the Civil Procedure Rules, as read together with Sections 1A, 1B and 3A of the Civil Procedure Act.
In considering whether to set aside such an order, the Court is guided by, inter alia, the following principles:
i) Whether there is a reasonable and satisfactory explanation for the delay;
ii) Whether the delay is inordinate;
iii) Whether the Respondent will suffer prejudice; and
iv) Whether the application is brought in good faith.
First, on the question of delay, the impugned order was made on 29th November 2023 while the present application was filed on 23rd October 2025. This translates to a delay of nearly two years. Such delay is, prima facie, inordinate.
The explanation tendered by the Applicant is that he was not aware that the matter had been listed for Notice to Show Cause. While lack of notice may, in appropriate cases, constitute a sufficient ground, the Applicant has not demonstrated any steps taken to follow up his appeal for a prolonged period. Litigation is a party-driven process, and it behoves a litigant to actively pursue his case.
Second, the Applicant asserts that he had filed the Record of Appeal prior to dismissal. Even assuming that to be true, the filing of a record alone does not absolve a party from the duty to prosecute the appeal. There is no evidence that the Applicant took any steps to fix the appeal for directions or hearing.
Third, the Respondent has raised the issue of multiplicity of suits and alleged abuse of the court process. While this Court has not been furnished with full records of the cited matters, the list presented raises legitimate concern that the Applicant may be engaging in repetitive litigation over the same subject matter. Courts must guard against such conduct in order to uphold the integrity of the judicial process.
Fourth, the Court must consider prejudice. This dispute has been in existence for a considerable period, and reopening the matter after such delay would occasion prejudice to the Respondent, particularly in light of the history of litigation alluded to.
Finally, although the Court is enjoined under Article 159(2)(d) of the Constitution to administer justice without undue regard to procedural technicalities, this provision is not a panacea for indolence or inordinate delay. Justice cuts both ways and must be balanced against the rights of the opposing party.
Conclusion
In the circumstances, the Applicant has failed to provide a satisfactory explanation for the inordinate delay in bringing the present application. The Court is not persuaded that this is a proper case for the exercise of its discretion in favour of the Applicant.
Orders
1. The Notice of Motion dated 23rd October 2025 is hereby dismissed.
2. The orders issued on 29th November 2023 dismissing the appeal for want of prosecution shall remain in force.
3. The Applicant shall bear the costs of the application.
DATED, SIGNED AND DELIVERED AT EMBU THIS 30TH DAY OF APRIL, 2026.
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HON. E.C CHERONO
ELC JUDGE, EMBU
In the presence of;
1. Mr. Kahuthu for the Respondent
2. Appellant/Applicant in person-present
3. Diana Kemboi C/A
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