1. The background of the appeal is a suit filed in court on 22nd October 2009 in respect of a cause of action that arose on 23rd October 2006. The matter was dismissed on 17th July 2017 under Order 17 Rule 2 (1) of the Civil Procedure Rules and on 24th October 2017, the previous advocates on record for the Plaintiff made an application for reinstatement of the suit, and vide a ruling delivered on 15th November 2018, the High Court set aside the order of dismissal of the suit and the matter was then transferred to the Chief Magistrates Court for mention on 3rd December 2018. The matter was again dismissed on 6th November 2023 for want of prosecution.
2. The Appellant, as the Plaintiff in the trial court, filed a Notice of Motion application dated 6th June 2024 seeking setting aside of the dismissal orders made on 6th November 2023, and for reinstatement of the suit. The said application was opposed by the Defendant’s Grounds of Opposition dated 4th July 2024 on the basis that the application was frivolous and an abuse of the court process, was not bona fide and lacked merit, and that the application was filed after unreasonable delay which was not explained.
3. The trial court in its ruling delivered on 4th February 2025 made the following findings: -
“Clearly the plaintiff has slept on its laurels in so far as prosecution of this matter is concerned. The matter was filed in 2009 in the High Court and was transferred to this court in 2019. After the said transfer, the plaintiff did not take any step to prosecute the same. Even of counsel previously on record were to be blamed, the defendant was under a duty to find out from the said advocate the progress of its case. The defendant has failed to cause the court to exercise its discretion in its favour. The application is therefore dismissed with costs to the defendant.”
4. Being dissatisfied, the Appellant appealed the ruling through the Memorandum of Appeal dated 13th February 2025 on the following grounds: -
1. That the Learned Magistrate erred in law and in fact in dismissing the appellant’s application dated 6th June, 2024 which was seeking to reinstate this suit that was previously dismissed for want of prosecution.
2. That the Learned Magistrate erred in law and in fact in finding no merit in the application that was well grounded and with reasons why the suit was not prosecuted by the Appellant.
3. That the learned magistrate erred in law and in fact as it did not consider the Appellant’s submissions and evidence adduced by the Appellants.
4. That the learned magistrate erred in law and in fact in dismissing the Appellant’s suit which had a valid claim of Kshs. 5,789,422/= against the Respondent without having due regard ensuring that substantive justice is achieved.
5. That the learned magistrate erred in Law in not exercising his discretion judicially.
6. That the learned magistrate’s finding and decision was against the weight of the evidence adduced by the Appellants.
5. The Appellant prayed for orders that the appeal be allowed, that the entire ruling delivered on 4th February 2025 be set aside, that the Appellant’s suit in CMCC No. 16 of 2019 be reinstated and the same be prosecuted within a limited time, and that the Appellant be granted costs of this appeal.
6. The appeal was canvassed by way of written submissions. The Appellant in their submissions dated 13th February 2025 argued that the trial magistrate erred in law and fact by dismissing the application dated 6th June 2024 which sought reinstatement of the suit. It was argued that although the suit was purportedly dismissed under Order 17 Rule 2(5) of the Civil Procedure Rules, the court failed to comply with the mandatory requirement under Order 17 Rule 2(1) to issue and serve a Notice to Show Cause before dismissal.
7. According to the Appellant, the court record does not demonstrate that any such notice was ever served. Further, the Appellant contended that the last action in the matter was taken on 7th April 2022 when the case came up for mention, yet the suit was dismissed on 6th November 2023, before the expiry of the two-year period contemplated under Order 17 Rule 2(5). The Appellant therefore maintained that the dismissal was premature and irregular. It was also submitted that the trial court failed to consider the uncontroverted evidence that the Appellant only became aware of the dismissal after instructing a new firm of advocates to peruse the court file.
8. The Appellant further argued that the learned magistrate failed to appreciate that the delay in prosecuting the suit was attributable to the negligence of previous advocates who neither informed the Appellant of the progress of the case nor notified him of any court attendance requirements. The Appellant contended that this mistake of counsel should not be visited upon an innocent litigant. Upon engaging new advocates, the Appellant discovered that the suit had been dismissed for want of prosecution. It was emphasized that neither the court nor the former advocates notified the Appellant of the Notice to Show Cause proceedings.
9. The Appellant submitted that the claim involves a substantial sum of Kshs. 5,789,422.00 being repair costs incurred following a road traffic accident involving the Respondent’s motor vehicle, and that the matter ought to be determined on its merits. The Appellant expressed readiness to promptly call witnesses and comply with any directions or conditions imposed by the court. It was argued that there was no deliberate attempt to delay or obstruct justice and that the interests of justice favour allowing parties to be heard.
10. Relying on Articles 48 and 50(1) of the Constitution, the Appellant contended that the dismissal of the reinstatement application infringed the constitutional rights to access justice and a fair hearing. The Appellant further argued that courts generally lean towards sustaining suits and determining disputes on their merits rather than shutting litigants out on procedural grounds. Reliance was placed on Thathini Development Company Limited v Mombasa Water & Sewerage Company & another (2022) eKLR and Catherine Kigasia Kivai v Ernest Ogesi Kivai & 4 others, Civil Suit No. 20 of 2018, where courts favoured substantive justice while imposing timelines for expeditious prosecution. Consequently, the Appellant urged the court to allow the appeal, reinstate the suit, and grant a limited period within which the matter can be heard and concluded.
11. The Respondent in their submissions dated 31st October 2025 argued that the trial magistrate properly exercised judicial discretion in declining to reinstate the suit. Relying on Shah v Mbogo & another [1967] EA 116, as cited in Kimuri Housing Company Limited & another v Skys Displays Limited & 3 others; Gallant Worldwide Auctioneers (Interested Party) [2025] KEELC 7272 (KLR), the Respondent argued that the power to set aside or reinstate a dismissed suit must be exercised judiciously. The magistrate correctly found that the Appellant had ‘slept on its laurels’, despite previously benefiting from the court’s indulgence in 2018. Further, citing Bi-Mach Engineers Ltd v James Kahoro Mwangi (2011) eKLR, the Respondent maintained that a litigant bears a duty to follow up on its case and cannot solely blame its advocate for inaction.
12. The Respondent further contended that the Appellant failed to demonstrate sufficient cause for reinstatement. The suit was dismissed after a Notice to Show Cause was issued and listed for hearing on 6th November 2023, at which the Appellant failed to appear, thus complying with Order 17 Rule 2(1) of the Civil Procedure Rules. Reliance was placed on FRANC Investments Ltd v G4S Security Services Ltd (2015) eKLR, where the court held that notice published through the cause list or court website constitutes sufficient notice.
13. The Respondent also pointed out that this was the Appellant’s second attempt at reinstatement, having previously secured reinstatement in 2018 in MSA HCCC No. 365 of 2009, Narendra Karsan Sanghani t/a K.B Sanghani & Sons v P.N Mashru Ltd. The repeated applications, it was argued, amounted to abuse of court process as recognized in Joseph Awino v Advocates Disciplinary Tribunal & another (2019) eKLR. Citing Eric Oluoch Olele v Kenneth O. Obae (2013) eKLR, the Respondent submitted that the Appellant’s prolonged inactivity of over four years and the unexplained seven-month delay in seeking reinstatement demonstrated inexcusable indolence.
14. On prejudice, the Respondent argued that the dispute had been pending for nearly eighteen years, causing significant prejudice through the loss of witnesses and fading of records. It was submitted that reinstatement would undermine the constitutional principle of expeditious justice under Articles 48 and 159(2)(b) of the Constitution and the overriding objective in Sections 1A and 1B of the Civil Procedure Act. The Respondent therefore urged that the matter should be allowed to rest and not be revived to the detriment of a diligent defendant awaiting closure.
15. Finally, the Respondent argued that the appeal lacks merit because the Appellant had not demonstrated any misdirection in law or improper exercise of discretion by the magistrate. Citing Mrao Ltd v First American Bank of Kenya Ltd & 2 others (2003) eKLR, the Respondent submitted that an appellate court should not interfere with a discretionary decision unless it is shown that the lower court acted on wrong principles or misdirected itself. Since no such error had been established, the Respondent urged the court to dismiss the appeal with costs.
16. The role of the first appellate court to reexamine and to reevaluate evidence to come up with its own findings was set out in Selle v Associated Motor Boat Co. (1968) E.A 123 as follows: -
“… Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect …”
Analysis
17. I have considered the Record of Appeal dated 27th March 2025 and submissions by the parties. The issues for determination are: -
(a) Whether the learned magistrate misdirected himself in declining to reinstate the suit
(b) Whether the Appellant established sufficient cause to warrant reinstatement of the suit
(c) Whether reinstatement would occasion prejudice
(d) Who should bear costs
18. On whether the learned magistrate misdirected himself in declining to reinstate the suit, the law regarding setting aside dismissal orders and reinstatement of suits is settled. The power is discretionary and must be exercised judicially and not capriciously. In Shah v Mbogo & another [1967] EA 116, the court held that: -
“Applying the principle that the Court's discretion to set aside an ex-parte judgment is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but not to assist a person who has deliberately sought (whether by evasion or otherwise) to obstruct or delay the cause by justice, the motion should be refused.”
19. An appellate court will not interfere with the exercise of judicial discretion merely because it would have reached a different conclusion. Interference is only justified where it is shown that the court misdirected itself, considered irrelevant matters, failed to consider relevant matters, or reached a plainly wrong decision. This principle was authoritatively stated in Mbogo & another v Shah [1968] EA 93 and reiterated in Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KECA 175 (KLR).
20. The record reveals that after reinstatement in November 2018 and transfer to the subordinate court, the Appellant took no meaningful steps to prosecute the matter. The suit remained dormant for several years. Even after dismissal on 6th November 2023, the Appellant waited approximately seven months before filing the application for reinstatement on 6th June 2024.
21. The learned magistrate found that the Appellant had ‘slept on its laurels’ and had failed to demonstrate diligence in prosecuting the suit. Upon re-evaluation of the record, this court finds no basis to fault that conclusion.
22. On whether the Appellant established sufficient cause to warrant reinstatement of the suit, the Appellant attributed the delay to the negligence of its previous advocates and contended that it was unaware of the dismissal.
23. 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.”
24. The Appellant benefited from the court's indulgence once before when the suit was reinstated in 2018 after an earlier dismissal. Having been granted a second chance, a higher degree of diligence was expected. Instead, the record demonstrates prolonged inactivity extending over several years.
25. This court is unable to accept that for such an extended period the Appellant remained unaware of the status of a claim valued at Kshs. 5,789,422.00. The explanation offered does not satisfactorily account for the prolonged inactivity both before and after reinstatement.
26. The Appellant further argued that no Notice to Show Cause was served prior to dismissal. However, the Respondent demonstrated that the matter had been listed under a Notice to Show Cause and that publication through the cause list constituted sufficient notice. In Fran Investments Limited v G4S Security Services Limited [2015] KEHC 8121 (KLR), the court held that: -
“Order 17 Rule 2 (1) of the Civil Procedure Rules does not require service of notice; it uses the word ‘’give notice’’. The court may give notice of dismissal through its official website or through the cause-list. And those mediums will constitute sufficient notice for purposes of Order 17 Rule 2 (1) of the Civil Procedure Rules.”
27. More importantly, even assuming procedural shortcomings existed, this court must consider the entire history of the litigation. The suit has remained pending since 2009, while the cause of action arose in 2006. Nearly two decades have elapsed since the events giving rise to the dispute.
28. On whether reinstatement would occasion prejudice, this court agrees with the Respondent that prolonged delay inevitably prejudices the fair determination of disputes. Witnesses become unavailable, memories fade and documentary evidence may no longer be readily accessible.
29. 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.
30. 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.”
31. The history of this matter reveals repeated inactivity despite prior judicial intervention. Reinstating the suit yet again would undermine the principle of finality in litigation and reward persistent indolence.
Determination
32. Accordingly, the court makes the following orders;
a. The appeal lacks merit and is hereby dismissed.
b. The ruling and orders of the trial court delivered on 4th February 2025 are hereby upheld.
c. The Respondent shall have the costs of the appeal.
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. Chamwada Advocate for the Applicant
Mr. Musyoki Advocate h/b for Mr. Gor Advocate for the Respondent
Ms. Salwa, Court Assistant
2. The Appellant, as the Plaintiff in the trial court, filed a Notice of Motion application dated 6th June 2024 seeking setting aside of the dismissal orders made on 6th November 2023, and for reinstatement of the suit. The said application was opposed by the Defendant’s Grounds of Opposition dated 4th July 2024 on the basis that the application was frivolous and an abuse of the court process, was not bona fide and lacked merit, and that the application was filed after unreasonable delay which was not explained.
3. The trial court in its ruling delivered on 4th February 2025 made the following findings: -
“Clearly the plaintiff has slept on its laurels in so far as prosecution of this matter is concerned. The matter was filed in 2009 in the High Court and was transferred to this court in 2019. After the said transfer, the plaintiff did not take any step to prosecute the same. Even of counsel previously on record were to be blamed, the defendant was under a duty to find out from the said advocate the progress of its case. The defendant has failed to cause the court to exercise its discretion in its favour. The application is therefore dismissed with costs to the defendant.”
4. Being dissatisfied, the Appellant appealed the ruling through the Memorandum of Appeal dated 13th February 2025 on the following grounds: -
1. That the Learned Magistrate erred in law and in fact in dismissing the appellant’s application dated 6th June, 2024 which was seeking to reinstate this suit that was previously dismissed for want of prosecution.
2. That the Learned Magistrate erred in law and in fact in finding no merit in the application that was well grounded and with reasons why the suit was not prosecuted by the Appellant.
3. That the learned magistrate erred in law and in fact as it did not consider the Appellant’s submissions and evidence adduced by the Appellants.
4. That the learned magistrate erred in law and in fact in dismissing the Appellant’s suit which had a valid claim of Kshs. 5,789,422/= against the Respondent without having due regard ensuring that substantive justice is achieved.
5. That the learned magistrate erred in Law in not exercising his discretion judicially.
6. That the learned magistrate’s finding and decision was against the weight of the evidence adduced by the Appellants.
5. The Appellant prayed for orders that the appeal be allowed, that the entire ruling delivered on 4th February 2025 be set aside, that the Appellant’s suit in CMCC No. 16 of 2019 be reinstated and the same be prosecuted within a limited time, and that the Appellant be granted costs of this appeal.
6. The appeal was canvassed by way of written submissions. The Appellant in their submissions dated 13th February 2025 argued that the trial magistrate erred in law and fact by dismissing the application dated 6th June 2024 which sought reinstatement of the suit. It was argued that although the suit was purportedly dismissed under Order 17 Rule 2(5) of the Civil Procedure Rules, the court failed to comply with the mandatory requirement under Order 17 Rule 2(1) to issue and serve a Notice to Show Cause before dismissal.
7. According to the Appellant, the court record does not demonstrate that any such notice was ever served. Further, the Appellant contended that the last action in the matter was taken on 7th April 2022 when the case came up for mention, yet the suit was dismissed on 6th November 2023, before the expiry of the two-year period contemplated under Order 17 Rule 2(5). The Appellant therefore maintained that the dismissal was premature and irregular. It was also submitted that the trial court failed to consider the uncontroverted evidence that the Appellant only became aware of the dismissal after instructing a new firm of advocates to peruse the court file.
8. The Appellant further argued that the learned magistrate failed to appreciate that the delay in prosecuting the suit was attributable to the negligence of previous advocates who neither informed the Appellant of the progress of the case nor notified him of any court attendance requirements. The Appellant contended that this mistake of counsel should not be visited upon an innocent litigant. Upon engaging new advocates, the Appellant discovered that the suit had been dismissed for want of prosecution. It was emphasized that neither the court nor the former advocates notified the Appellant of the Notice to Show Cause proceedings.
9. The Appellant submitted that the claim involves a substantial sum of Kshs. 5,789,422.00 being repair costs incurred following a road traffic accident involving the Respondent’s motor vehicle, and that the matter ought to be determined on its merits. The Appellant expressed readiness to promptly call witnesses and comply with any directions or conditions imposed by the court. It was argued that there was no deliberate attempt to delay or obstruct justice and that the interests of justice favour allowing parties to be heard.
10. Relying on Articles 48 and 50(1) of the Constitution, the Appellant contended that the dismissal of the reinstatement application infringed the constitutional rights to access justice and a fair hearing. The Appellant further argued that courts generally lean towards sustaining suits and determining disputes on their merits rather than shutting litigants out on procedural grounds. Reliance was placed on Thathini Development Company Limited v Mombasa Water & Sewerage Company & another (2022) eKLR and Catherine Kigasia Kivai v Ernest Ogesi Kivai & 4 others, Civil Suit No. 20 of 2018, where courts favoured substantive justice while imposing timelines for expeditious prosecution. Consequently, the Appellant urged the court to allow the appeal, reinstate the suit, and grant a limited period within which the matter can be heard and concluded.
11. The Respondent in their submissions dated 31st October 2025 argued that the trial magistrate properly exercised judicial discretion in declining to reinstate the suit. Relying on Shah v Mbogo & another [1967] EA 116, as cited in Kimuri Housing Company Limited & another v Skys Displays Limited & 3 others; Gallant Worldwide Auctioneers (Interested Party) [2025] KEELC 7272 (KLR), the Respondent argued that the power to set aside or reinstate a dismissed suit must be exercised judiciously. The magistrate correctly found that the Appellant had ‘slept on its laurels’, despite previously benefiting from the court’s indulgence in 2018. Further, citing Bi-Mach Engineers Ltd v James Kahoro Mwangi (2011) eKLR, the Respondent maintained that a litigant bears a duty to follow up on its case and cannot solely blame its advocate for inaction.
12. The Respondent further contended that the Appellant failed to demonstrate sufficient cause for reinstatement. The suit was dismissed after a Notice to Show Cause was issued and listed for hearing on 6th November 2023, at which the Appellant failed to appear, thus complying with Order 17 Rule 2(1) of the Civil Procedure Rules. Reliance was placed on FRANC Investments Ltd v G4S Security Services Ltd (2015) eKLR, where the court held that notice published through the cause list or court website constitutes sufficient notice.
13. The Respondent also pointed out that this was the Appellant’s second attempt at reinstatement, having previously secured reinstatement in 2018 in MSA HCCC No. 365 of 2009, Narendra Karsan Sanghani t/a K.B Sanghani & Sons v P.N Mashru Ltd. The repeated applications, it was argued, amounted to abuse of court process as recognized in Joseph Awino v Advocates Disciplinary Tribunal & another (2019) eKLR. Citing Eric Oluoch Olele v Kenneth O. Obae (2013) eKLR, the Respondent submitted that the Appellant’s prolonged inactivity of over four years and the unexplained seven-month delay in seeking reinstatement demonstrated inexcusable indolence.
14. On prejudice, the Respondent argued that the dispute had been pending for nearly eighteen years, causing significant prejudice through the loss of witnesses and fading of records. It was submitted that reinstatement would undermine the constitutional principle of expeditious justice under Articles 48 and 159(2)(b) of the Constitution and the overriding objective in Sections 1A and 1B of the Civil Procedure Act. The Respondent therefore urged that the matter should be allowed to rest and not be revived to the detriment of a diligent defendant awaiting closure.
15. Finally, the Respondent argued that the appeal lacks merit because the Appellant had not demonstrated any misdirection in law or improper exercise of discretion by the magistrate. Citing Mrao Ltd v First American Bank of Kenya Ltd & 2 others (2003) eKLR, the Respondent submitted that an appellate court should not interfere with a discretionary decision unless it is shown that the lower court acted on wrong principles or misdirected itself. Since no such error had been established, the Respondent urged the court to dismiss the appeal with costs.
16. The role of the first appellate court to reexamine and to reevaluate evidence to come up with its own findings was set out in Selle v Associated Motor Boat Co. (1968) E.A 123 as follows: -
“… Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect …”
Analysis
17. I have considered the Record of Appeal dated 27th March 2025 and submissions by the parties. The issues for determination are: -
(a) Whether the learned magistrate misdirected himself in declining to reinstate the suit
(b) Whether the Appellant established sufficient cause to warrant reinstatement of the suit
(c) Whether reinstatement would occasion prejudice
(d) Who should bear costs
18. On whether the learned magistrate misdirected himself in declining to reinstate the suit, the law regarding setting aside dismissal orders and reinstatement of suits is settled. The power is discretionary and must be exercised judicially and not capriciously. In Shah v Mbogo & another [1967] EA 116, the court held that: -
“Applying the principle that the Court's discretion to set aside an ex-parte judgment is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but not to assist a person who has deliberately sought (whether by evasion or otherwise) to obstruct or delay the cause by justice, the motion should be refused.”
19. An appellate court will not interfere with the exercise of judicial discretion merely because it would have reached a different conclusion. Interference is only justified where it is shown that the court misdirected itself, considered irrelevant matters, failed to consider relevant matters, or reached a plainly wrong decision. This principle was authoritatively stated in Mbogo & another v Shah [1968] EA 93 and reiterated in Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KECA 175 (KLR).
20. The record reveals that after reinstatement in November 2018 and transfer to the subordinate court, the Appellant took no meaningful steps to prosecute the matter. The suit remained dormant for several years. Even after dismissal on 6th November 2023, the Appellant waited approximately seven months before filing the application for reinstatement on 6th June 2024.
21. The learned magistrate found that the Appellant had ‘slept on its laurels’ and had failed to demonstrate diligence in prosecuting the suit. Upon re-evaluation of the record, this court finds no basis to fault that conclusion.
22. On whether the Appellant established sufficient cause to warrant reinstatement of the suit, the Appellant attributed the delay to the negligence of its previous advocates and contended that it was unaware of the dismissal.
23. 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.”
24. The Appellant benefited from the court's indulgence once before when the suit was reinstated in 2018 after an earlier dismissal. Having been granted a second chance, a higher degree of diligence was expected. Instead, the record demonstrates prolonged inactivity extending over several years.
25. This court is unable to accept that for such an extended period the Appellant remained unaware of the status of a claim valued at Kshs. 5,789,422.00. The explanation offered does not satisfactorily account for the prolonged inactivity both before and after reinstatement.
26. The Appellant further argued that no Notice to Show Cause was served prior to dismissal. However, the Respondent demonstrated that the matter had been listed under a Notice to Show Cause and that publication through the cause list constituted sufficient notice. In Fran Investments Limited v G4S Security Services Limited [2015] KEHC 8121 (KLR), the court held that: -
“Order 17 Rule 2 (1) of the Civil Procedure Rules does not require service of notice; it uses the word ‘’give notice’’. The court may give notice of dismissal through its official website or through the cause-list. And those mediums will constitute sufficient notice for purposes of Order 17 Rule 2 (1) of the Civil Procedure Rules.”
27. More importantly, even assuming procedural shortcomings existed, this court must consider the entire history of the litigation. The suit has remained pending since 2009, while the cause of action arose in 2006. Nearly two decades have elapsed since the events giving rise to the dispute.
28. On whether reinstatement would occasion prejudice, this court agrees with the Respondent that prolonged delay inevitably prejudices the fair determination of disputes. Witnesses become unavailable, memories fade and documentary evidence may no longer be readily accessible.
29. 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.
30. 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.”
31. The history of this matter reveals repeated inactivity despite prior judicial intervention. Reinstating the suit yet again would undermine the principle of finality in litigation and reward persistent indolence.
Determination
32. Accordingly, the court makes the following orders;
a. The appeal lacks merit and is hereby dismissed.
b. The ruling and orders of the trial court delivered on 4th February 2025 are hereby upheld.
c. The Respondent shall have the costs of the appeal.
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. Chamwada Advocate for the Applicant
Mr. Musyoki Advocate h/b for Mr. Gor Advocate for the Respondent
Ms. Salwa, Court Assistant