REPUBLIC OF KsENYA
IN THE HIGH COURT OF KENYA AT KILGORIS
CIVIL CASE NO. E001 OF 2023
(CORAM: HON. CHARLES M. KARIUKI – J)
NGINA GITIBA……………………………………………………PLAINTIFF/APPLICANT
VERSUS
TRANSMARA SUGAR COMPANY LIMITED ………… DEFENDANT/RESPONDENT
RULING
03/07/2026
A. INTRODUCTION AND BACKGROUND
1) This ruling concerns the Plaintiff/Applicant's Notice of Motion dated 2 nd February 2026 seeking the setting aside of the order made on 2 nd December 2024 dismissing this suit for want of prosecution and the consequent reinstatement of the suit for hearing on its merits. The application invokes this Court's discretionary jurisdiction under Sections 1A, 1B, and 3A of the Civil Procedure Act and Order 12 Rule 7 of the Civil Procedure Rules.
2) The suit was instituted on 15 th March 2023 by the Plaintiff against the Defendant seeking reliefs arising from an alleged breach of contract relating to unpaid sugarcane supplied to the Defendant. However, following inactivity in the matter, the suit was dismissed for want of prosecution on 2 nd December 2024.
3) The Plaintiff contends that neither she nor her then advocates were served with the Notices to Show Cause preceding the dismissal of the suit and that she only became aware of the dismissal in January 2026 after instructing her present advocates to ascertain the status of the matter. She attributes the delay in prosecuting the suit to the omissions and inaction of her previous advocates and urges the Court not to visit counsel's mistakes upon an innocent litigant.
4) The Defendant opposes the application principally on two fronts. First, it contends that the application is incompetent for failure to comply with the mandatory provisions of Order 9 Rule 9 of the Civil Procedure Rules, the Plaintiff having changed advocates after the dismissal of the suit, without leave of the Court or the consent of the outgoing advocates. Secondly, it argues that the Plaintiff has failed to demonstrate sufficient cause to justify reinstatement of the suit after an inordinate and unexplained delay.
B. PLEADINGS
i. Notice of Motion.
5) The Plaintiff/Applicant, Ngina Gitiba, moved the Court by a Notice of Motion dated 2 nd February 2026 seeking, principally, the setting aside of the order made on 2 nd December 2024 dismissing the suit for want of prosecution, reinstatement of the suit, and the allocation of a mention date for further directions.
6) The application was expressed to be brought under Sections 1A, 1B, and 3A of the Civil Procedure Act, Order 12 Rule 7 of the Civil Procedure Rules, and all other enabling provisions of the law.
7) The application was premised on the grounds that neither the Plaintiff nor her advocates on record had been served with the Notices to Show Cause dated 10 th July 2024 and 7 th August 2024, and that there was no affidavit of service on the court record demonstrating that service had been effected.
8) The Applicant contended that she is the owner of the property which is the subject matter of the suit and ought to be afforded an opportunity to have the dispute heard and determined on its merits. She further maintained that the suit concerns a claim founded on breach of contract relating to unpaid sugarcane supplied to the Defendant and that dismissal of the suit would occasion substantial prejudice to her commercial interests.
9) The Applicant attributed the delay in prosecuting the matter to the failure of her previous advocates to keep her informed, difficulties in obtaining hearing dates, and the unexplained unavailability of the court file.
10) She further asserted that the Defendant would not suffer any prejudice if the suit were reinstated, any inconvenience being compensable by an award of costs, and urged that it was in the interests of justice for the application to be allowed.
ii. Supporting Affidavit.
11) The application was supported by the affidavit of Ngina Gitiba, sworn on 2 nd February 2026. She deponed that she instituted the suit on 15 th March 2023 through the firm of Owino & Company Advocates and thereafter made numerous inquiries regarding its progress.
12) According to the Applicant, she was consistently informed that she would be contacted once pre-trial or hearing dates were issued. She stated that despite making further follow-up calls in November 2024, March 2025, and July 2025, she was unable to reach the advocate managing her matter, as he was either absent from the office or indisposed, while members of the firm's staff were unable to provide any meaningful update.
13) The Applicant further deponed that on 21 st January 2026, she personally visited the offices of her former advocates to inspect the status of her case, but was unable to meet the advocate, and even the receptionist was unaware of the whereabouts of her file.
14) Concerned by the lack of information, she sought legal assistance from Cheboi Ouma Oriema & Associates Advocates, who, after conducting a search through the Judiciary system, informed her that the suit had been dismissed on 2 nd December 2024 for want of prosecution. She subsequently instructed the new firm to take over conduct of the matter on 29 th January 2026.
15) The Applicant averred that upon perusal of the court file, her new advocates established that her former advocates had neither taken steps to set the suit down for mention or hearing nor attended the mentions reflected in the court record. She further stated that she later confronted her former advocate, who denied ever having been served with the Notices to Show Cause.
16) Upon advice from her current advocates, which she believed to be true, she deponed that although Notices to Show Cause dated 10 th July 2024 and 7 th August 2024 appeared on the court record, neither she nor her advocates had been served with them, and there was no affidavit of service evidencing such service.
17) The Applicant maintained that she had always remained interested in prosecuting the suit and that any inactivity was attributable solely to the omissions of her former advocates rather than to any lack of diligence on her part.
18) She reiterated that the suit concerns commercial and contractual rights arising from unpaid sugarcane supplied to the Defendant and that justice required the dispute to be determined after a full hearing on the merits. She further deponed that reinstatement of the suit would occasion no prejudice to the Defendant beyond what could adequately be compensated by costs. In contrast, dismissal would irreparably prejudice her commercial interests.
19) She therefore urged the Court to exercise its discretion in her favour, stressing that the application had been brought promptly upon discovery of the dismissal, that she had approached the Court in good faith and with clean hands, and that she was willing to comply with any directions issued by the Court to facilitate the expeditious hearing and determination of the suit.
iii. Grounds of Opposition.
20) The Defendant/Respondent, Transmara Sugar Company Limited, opposed the Notice of Motion dated 2 nd February 2026 by filing Grounds of Opposition dated 12 th March 2026. The Respondent contended that the application was incompetent and legally untenable for failure to comply with the mandatory provisions of Order 9 Rule 9 of the Civil Procedure Rules, arguing that the Applicant's change of advocates after the dismissal of the suit had not been effected in accordance with the law.
21) The Respondent further maintained that the Applicant had failed to establish sufficient cause to warrant the exercise of the Court's discretion in her favour. It was argued that the delay in seeking reinstatement of the suit was inordinate and had not been satisfactorily explained, thereby disentitling the Applicant to the equitable relief sought. On that basis, the Respondent urged the Court to find that the application lacked merit and to dismiss it with costs.
C. Directions of the court.
22) The application was canvassed by way of written submissions.
D. THE PARTIES' SUBMISSIONS
i. The Plaintiff/Applicant’s Submissions
23) The Plaintiff/Applicant filed written submissions in support of the Notice of Motion dated 2 nd February 2026, urging the Court to set aside the order dismissing the suit for want of prosecution, reinstate the suit, and allow it to proceed to a hearing on the merits. The Applicant submitted that the application was properly before the Court and was necessitated by circumstances beyond her control, principally the failure of her former advocates to prosecute the matter and the failure to serve the Notices to Show Cause, which culminated in the dismissal of the suit.
24) The Applicant recounted that the suit was instituted on 15 th March 2023 through the firm of Owino & Company Advocates to recover payment allegedly due for sugarcane supplied to the Defendant under a contractual arrangement. It was submitted that, despite making numerous inquiries to her former advocates, including telephone calls in November 2024, March 2025, and July 2025, she was consistently unable to obtain meaningful information about the progress of the matter. She further submitted that upon personally visiting her former advocates’ offices on 21 st January 2026, she was unable to trace either the advocate managing her matter or her court file. Consequently, she instructed the firm of Cheboi Ouma Oriema & Associates Advocates, who discovered through the Judiciary system that the suit had been dismissed on 2 nd December 2024 for want of prosecution. It was emphasized that the application for reinstatement was filed on 2nd February 2026, only a few days after she became aware of the dismissal, demonstrating diligence and prompt action.
25) In response to the Respondent’s first ground of opposition, namely that the application offended Order 9 Rule 9 of the Civil Procedure Rules, the Applicant submitted that the objection was misconceived. Counsel argued that Order 9 Rule 9 applies only where there has been a judgment concluding the rights of the parties and not where there has merely been an order dismissing a suit for want of prosecution. It was submitted that a dismissal for want of prosecution is a procedural order arising from default and does not amount to a determination of the parties' substantive rights. Reliance was placed on Section 2 of the Civil Procedure Act, which distinguishes a decree from an order of dismissal for default. The Applicant further argued that the purpose of Order 9 Rule 9 is to safeguard the interests of an outgoing advocate who has brought a matter to its conclusion. This circumstance did not arise in the present case because the former advocates had failed to prosecute the suit, attend to mentions, or keep the Applicant informed of the progress of the matter.
26) The Applicant also submitted that the dismissal order itself was irregular because the Notices to Show Cause dated 10 th July 2024 and 7 th August 2024 had never been served upon either herself or her former advocates. She argued that there was no affidavit of service on the court record and that the failure to notify her before dismissing the suit violated her constitutional right to a fair hearing under Article 50 of the Constitution. Consequently, the Court was urged to invoke its inherent jurisdiction under Section 3A of the Civil Procedure Act, together with the overriding objective under Sections 1A and 1B of the Act, to set aside the dismissal ex debito justitiae rather than permit procedural technicalities to defeat substantive justice.
27) In support of this argument, the Applicant relied on Kochieng v County Assembly Service Board & another [2023] KEHC 1681 (KLR) , distinguishing that decision on the basis that the rationale behind Order 9 Rule 9 is to protect advocates who have concluded litigation on behalf of their clients, which was not the position in the present case. Greater reliance was placed on Sujal Construction Ltd v Medicross Kenya Ltd [2025] KEHC 4478 (KLR), where the High Court reinstated a suit that had been dismissed for want of prosecution, notwithstanding a delay of over one year in seeking reinstatement. Counsel submitted that in that case the Court held that sufficient cause should receive a liberal interpretation, that mistakes of counsel should not ordinarily be visited upon an innocent litigant, and that a litigant should not bear the consequences of an advocate’s default unless the litigant were personally complicit in the default. The Applicant submitted that the present case was analogous and that the same principles ought to apply.
28) Addressing the Respondent’s second ground of opposition regarding alleged inordinate delay, the Applicant submitted that sufficient cause had been demonstrated to justify reinstatement of the suit. Counsel argued that the applicable test under Order 12 Rule 7 of the Civil Procedure Rules is whether sufficient cause has been shown. That sufficient cause includes lack of knowledge of the dismissal due to non-service, prompt action upon discovery of the dismissal, and the absence of prejudice to the opposing party. It was submitted that the Applicant did not become aware of either the Notices to Show Cause or the dismissal of the suit until January 2026, as neither she nor her advocates had been served with the notices. The Applicant further maintained that the chronology of events demonstrated her continuous diligence through repeated attempts to obtain updates from her former advocates. That, immediately upon learning of the dismissal, she instructed new counsel and filed the present application without delay.
29) The Applicant further argued that the delay between the dismissal of the suit and the filing of the application was satisfactorily explained and was attributable solely to the omissions and neglect of her former advocates rather than any lack of interest on her part. Counsel submitted that Kenyan courts have consistently held that an innocent litigant ought not to be punished for the mistakes or negligence of counsel where the litigant has demonstrated diligence. It was therefore urged that the period of approximately fourteen months between the dismissal and the filing of the application could not properly be characterized as inordinate when viewed against the background of non-service and the conduct of the former advocates.
30) The Applicant further submitted that reinstatement of the suit would occasion no prejudice to the Defendant, particularly because the dispute concerned a straightforward contractual claim for unpaid sugarcane supplied to the Defendant. At the same time, an award of costs could adequately compensate for any inconvenience. Conversely, it was argued that refusing reinstatement would occasion grave prejudice to the Applicant by permanently denying her an opportunity to ventilate her commercial claim. Counsel therefore invoked Article 159(2) of the Constitution, urging the Court to administer justice without undue regard to procedural technicalities and to ensure that disputes are determined on their substantive merits rather than on procedural defaults.
31) On the whole, the Applicant submitted that the Court should exercise its discretion in favour of reinstating the suit, find that the application was competent and supported by sufficient cause, reject the Respondent's Grounds of Opposition, set aside the dismissal order of 2nd December 2024, reinstate the suit for hearing on the merits, and direct that the matter be mentioned for case management, with costs either awarded to the Applicant or be in the cause.
ii. The Defendant/Respondent’s Submissions
32) The Defendant/Respondent filed written submissions opposing the Plaintiff’s Notice of Motion dated 2 nd February 2026, urging the Court to dismiss the application with costs. The Respondent submitted that the application was incompetent for failure to comply with the mandatory provisions of Order 9 Rule 9 of the Civil Procedure Rules and, in any event, that the Plaintiff had failed to establish sufficient cause to warrant the exercise of the Court’s discretion in setting aside the dismissal order and reinstating the suit.
33) On the issue of competence, the Respondent submitted that the Plaintiff’s present advocates came on record after the suit had been dismissed on 2 nd December 2024, without first obtaining leave of the Court or filing a consent between the outgoing and incoming advocates as required under Order 9 Rule 9 of the Civil Procedure Rules. Counsel argued that the provision is couched in mandatory terms and applies whenever there is a change of advocates after judgment has been entered. It was therefore contended that the Plaintiff’s attempt to distinguish a dismissal for want of prosecution from a judgment was contrary to settled jurisprudence.
34) In support of that proposition, the Respondent relied on the decision of the Court of Appeal in Njue Ngai v Peanuts Njiru Ngai & Another [2016] eKLR , where the Court held that a judgment encompasses a judicial determination of the issues before the court and includes an order dismissing proceedings or a suit, such dismissal constituting a judgment in favour of the defendant. It was submitted that the dismissal of the present suit, therefore, amounted to a judgment, thereby triggering the mandatory requirements of Order 9 Rule 9.
35) The Respondent further relied on Stephen Mwangi Kimote v Murata Sacco Society [2018] eKLR, in which the High Court, guided by the decision in Njue Ngai v Ephantus Njiru Ngai & Another (supra), held that dismissal for want of prosecution constitutes a judgment and consequently upheld a preliminary objection, striking out an application that had been filed in contravention of Order 9 Rule 9. Counsel also cited Gicheru & Another v Ongonga [2023] KEELC 38 (KLR), where the Court held that an order dismissing a suit for want of prosecution amounts to a final judgment in favour of the adverse party and cannot be regarded as a mere procedural order.
36) Counsel further submitted that compliance with Order 9 Rule 9 is mandatory and not a mere procedural technicality capable of being overlooked. Reliance was placed on Lalji Bhimji Sanghani Builders & Contractors v City Council of Nairobi [2012] eKLR , in which the Court held that failure to comply with Order 9 Rule 9 renders the proceedings incompetent. Similar reliance was placed on Phylis Amwayi Okuyosi v Paul Musyoka Kaloki [2019] KEELC 896 (KLR), in which the Court struck out an application seeking reinstatement of a suit for failure to comply with the requirements governing change of advocates after judgment. The Respondent therefore submitted that because the Plaintiff neither sought leave of the Court nor filed a consent with the outgoing advocates before filing the present application, the application was fatally defective and ought to be struck out.
37) Without prejudice to the foregoing objection, the Respondent submitted that the Plaintiff had failed to demonstrate sufficient cause to justify reinstatement of the suit. Counsel argued that the suit had been dismissed on 2 nd December 2024 for want of prosecution after the Plaintiff failed to take any meaningful steps towards prosecuting the claim. Yet the application for reinstatement was filed only on 2 nd February 2026, more than one year after the dismissal. It was contended that such delay was inordinate, excessive, and wholly unexplained.
38) The Respondent rejected the Plaintiff’s attempt to attribute the delay entirely to the negligence of her former advocates, submitting that the responsibility for prosecuting a suit ultimately rests with the litigant rather than counsel. It was argued that although the Plaintiff alleged that she had made follow-up telephone calls to her advocates in November 2024, March 2025, and July 2025, those averments in fact demonstrated a lack of diligence. Counsel pointed out that the calls allegedly made in March and July 2025 occurred several months after the suit had already been dismissed. Yet, the Plaintiff failed to make any independent inquiry at the court registry to ascertain the status of the case. The Respondent further submitted that the Plaintiff did not explain the additional six-month period of inactivity between July 2025 and January 2026, when she eventually visited her advocates’ offices. Given that the claim concerned substantial sums allegedly due under a commercial contract for sugarcane supplied to the Defendant, counsel argued that a genuinely diligent litigant would not have allowed the matter to remain unattended for such a prolonged period.
39) To reinforce the principle that litigants bear primary responsibility for following up their cases, the Respondent relied on Maina & 3 Others (All Suing as Officials of Kondoo Training Centre Self Help Group) v Attorney General & 4 Others [2024] KEELC 37 (KLR), where the Court, in declining to extend time for filing an appeal, held that a case belongs to the litigant and not the advocate, and that where communication with counsel has broken down, a litigant is expected to make independent inquiries at the court registry regarding the progress of the matter. Counsel submitted that the same principle had been affirmed in Musau v Musau & Another [2025] KEELC 3602 (KLR) and Malindi Salt Works Limited v Rongai Workshop & Transport Ltd [2019] KEHC 4938 (KLR) , where the courts reiterated that litigants have a continuing obligation to monitor the progress of their cases and cannot indefinitely rely upon their advocates.
40) The Respondent also challenged the Plaintiff’s attempt to blame her former advocates without involving them in the present proceedings. Reliance was placed on Onyango v Techspa General Supplies & 2 Others [2022] KEHC 12937 (KLR) , in which the Court dismissed an application seeking to set aside judgment on the ground of advocate error, observing that where serious allegations of professional negligence are levelled against an advocate, the advocate ought to be served with the application and allowed to respond. Counsel submitted that in the present case, the Plaintiff’s former advocates had not been served with the application. Therefore, the Court had no basis upon which to ascertain the truthfulness of the allegations made against them.
41) The Respondent ultimately submitted that reinstatement of a suit is an equitable and discretionary remedy intended to benefit vigilant litigants rather than parties who sleep on their rights. It was argued that the Plaintiff had failed to demonstrate diligence, had not satisfactorily explained the prolonged delay between dismissal of the suit and the filing of the application, and had failed to comply with the mandatory procedural requirements governing change of advocates after judgment. The Court was therefore urged to find that the application amounted to an abuse of the court process and to dismiss it with costs to the Defendant/Respondent.
E. ISSUES FOR DETERMINATION
42) Having considered the pleadings, affidavits, Grounds of Opposition, rival submissions, authorities cited by counsel, and the applicable law, the Court is of the view that the issues falling for determination are: -
i. Whether the present application is incompetent for failure to comply with Order 9 Rule 9 of the Civil Procedure Rules.
ii. Whether the Plaintiff/Applicant has established sufficient cause to warrant the setting aside of the order dismissing the suit for want of prosecution and reinstatement of the suit.
iii. Who should bear the costs of the application?
F. ANALYSIS AND DETERMINATION
i. Whether the application is incompetent for failure to comply with Order 9 Rule 9 of the Civil Procedure Rules
43) The Defendant's primary objection is that the present advocates came on record after the dismissal of the suit without first obtaining leave of Court or filing a consent between the outgoing and incoming advocates as required under Order 9 Rule 9 of the Civil Procedure Rules.
44) Order 9 Rule 9 provides: -
"When there is a change of advocate, or when a party decides to act in person having previously engaged an advocate, after judgment has been passed, such change or intention to act in person shall not be effected without an order of the court—(a)upon an application with notice to all the parties; or(b)upon a consent filed between the outgoing advocate and the proposed incoming advocate or party intending to act in person as the case may be.”
45) The question, therefore, is whether the dismissal of a suit for want of prosecution constitutes a judgment for purposes of Order 9 Rule 9.
46) That question is no longer res integra. The Court of Appeal settled the position in Njue Ngai v Ephantus Njiru Ngai & Another [2016] eKLR, where it held:
"A judgment is a judicial determination or decision of a court on the main question(s) in a proceeding and includes dismissal of the proceedings or a suit …A dismissal of a suit …is a judgment for the defendant against the plaintiff."
47) Being a decision of the Court of Appeal, this Court is bound by that pronouncement.
48) The same position has consistently been adopted by the High Court in Stephen Mwangi Kimote v Murata Sacco Society [2018] eKLR, Gicheru & Another v Ongonga [2023] KEELC 38 (KLR), Lalji Bhimji Sanghani Builders & Contractors v City Council of Nairobi [2012] eKLR, and Phylis Amwayi Okuyosi v Paul Musyoka Kaloki [2019] KEELC 896 (KLR).
49) Consequently, I disagree with the Applicant's submission that Order 9 Rule 9 is inapplicable merely because the suit was dismissed for prosecution. The dismissal constituted a judgment within the meaning given by the Court of Appeal.
50) However, that does not conclude the matter. The jurisprudence emerging from our superior courts demonstrates that although compliance with Order 9 Rule 9 is mandatory, courts retain inherent jurisdiction to regularize representation where justice so demands, rather than driving parties away from the seat of justice.
51) The Supreme Court in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR emphasized that procedural rules are handmaidens of justice and should facilitate rather than impede the determination of disputes on their merits.
52) Likewise, Article 159(2)(d) of the Constitution obligates courts to administer justice without undue regard to procedural technicalities.
53) The present application itself seeks leave of the Court to set aside the dismissal and regularize proceedings. Striking it out solely because incoming counsel did not first obtain leave would elevate procedural form over substantive justice, particularly where the complaint concerns the conduct of previous advocates.
54) Accordingly, while I find that Order 9 Rule 9 was applicable, I am not persuaded that the omission is fatal in the peculiar circumstances of this case. The defect is curable through the exercise of this Court's discretion.
ii. Whether sufficient cause has been established to warrant reinstatement
55) The applicable law is Order 12 Rule 7 of the Civil Procedure Rules together with the Court's inherent jurisdiction under Section 3A of the Civil Procedure Act.
56) The principles governing reinstatement are now well settled. The discretion is wide but must be exercised judiciously and not capriciously.
57) In Shah v Mbogo & Another [1967] EA 116, Harris J. stated that the discretion to set aside is intended:
"...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 course of justice."
58) That principle has remained the guiding authority for decades.
59) Similarly, in Patel v E.A. Cargo Handling Services Ltd [1974] EA 75 , the East African Court of Appeal held that there are no limits to the judge's discretion except that it should be exercised to avoid injustice.
60) In determining whether sufficient cause has been shown, the Court considers several factors, including: -
a. the explanation for the delay.
b. whether the applicant acted promptly upon discovery;
c. whether there was proper service;
d. prejudice likely to be suffered by either party; and
e. the broader interests of justice.
61) The Plaintiff asserts that neither she nor her advocates received the Notices to Show Cause dated 10 th July 2024 and 7 th August 2024. Significantly, she further depones that there is no affidavit of service in the court file.
62) The Defendant elected to oppose the application purely on the grounds of Opposition. No reply affidavit was filed to controvert the Plaintiff's factual deposition that the Notices to Show Cause were not served. Consequently, the Plaintiff's factual assertions remain unchallenged.
63) It is trite that Grounds of Opposition raise points of law only and cannot controvert factual matters deponed to on oath. See Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696.
64) Equally important is the fact that the Court record does not disclose any affidavit of service demonstrating that the Notices to Show Cause were ever served.
65) Order 17 Rule 2 of the Civil Procedure Rules contemplates service of a Notice to Show Cause before dismissal of a suit. Service is not an idle procedural step. It is the mechanism through which the constitutional right to be heard under Article 50(1) is safeguarded.
66) Where no notice is served, the dismissal becomes procedurally irregular because a party is condemned without being allowed to explain the delay.
67) I also find merit in the Plaintiff's explanation regarding the delay. Although litigants bea
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IN THE HIGH COURT OF KENYA AT KILGORIS
CIVIL CASE NO. E001 OF 2023
(CORAM: HON. CHARLES M. KARIUKI – J)
NGINA GITIBA……………………………………………………PLAINTIFF/APPLICANT
VERSUS
TRANSMARA SUGAR COMPANY LIMITED ………… DEFENDANT/RESPONDENT
RULING
03/07/2026
A. INTRODUCTION AND BACKGROUND
1) This ruling concerns the Plaintiff/Applicant's Notice of Motion dated 2 nd February 2026 seeking the setting aside of the order made on 2 nd December 2024 dismissing this suit for want of prosecution and the consequent reinstatement of the suit for hearing on its merits. The application invokes this Court's discretionary jurisdiction under Sections 1A, 1B, and 3A of the Civil Procedure Act and Order 12 Rule 7 of the Civil Procedure Rules.
2) The suit was instituted on 15 th March 2023 by the Plaintiff against the Defendant seeking reliefs arising from an alleged breach of contract relating to unpaid sugarcane supplied to the Defendant. However, following inactivity in the matter, the suit was dismissed for want of prosecution on 2 nd December 2024.
3) The Plaintiff contends that neither she nor her then advocates were served with the Notices to Show Cause preceding the dismissal of the suit and that she only became aware of the dismissal in January 2026 after instructing her present advocates to ascertain the status of the matter. She attributes the delay in prosecuting the suit to the omissions and inaction of her previous advocates and urges the Court not to visit counsel's mistakes upon an innocent litigant.
4) The Defendant opposes the application principally on two fronts. First, it contends that the application is incompetent for failure to comply with the mandatory provisions of Order 9 Rule 9 of the Civil Procedure Rules, the Plaintiff having changed advocates after the dismissal of the suit, without leave of the Court or the consent of the outgoing advocates. Secondly, it argues that the Plaintiff has failed to demonstrate sufficient cause to justify reinstatement of the suit after an inordinate and unexplained delay.
B. PLEADINGS
i. Notice of Motion.
5) The Plaintiff/Applicant, Ngina Gitiba, moved the Court by a Notice of Motion dated 2 nd February 2026 seeking, principally, the setting aside of the order made on 2 nd December 2024 dismissing the suit for want of prosecution, reinstatement of the suit, and the allocation of a mention date for further directions.
6) The application was expressed to be brought under Sections 1A, 1B, and 3A of the Civil Procedure Act, Order 12 Rule 7 of the Civil Procedure Rules, and all other enabling provisions of the law.
7) The application was premised on the grounds that neither the Plaintiff nor her advocates on record had been served with the Notices to Show Cause dated 10 th July 2024 and 7 th August 2024, and that there was no affidavit of service on the court record demonstrating that service had been effected.
8) The Applicant contended that she is the owner of the property which is the subject matter of the suit and ought to be afforded an opportunity to have the dispute heard and determined on its merits. She further maintained that the suit concerns a claim founded on breach of contract relating to unpaid sugarcane supplied to the Defendant and that dismissal of the suit would occasion substantial prejudice to her commercial interests.
9) The Applicant attributed the delay in prosecuting the matter to the failure of her previous advocates to keep her informed, difficulties in obtaining hearing dates, and the unexplained unavailability of the court file.
10) She further asserted that the Defendant would not suffer any prejudice if the suit were reinstated, any inconvenience being compensable by an award of costs, and urged that it was in the interests of justice for the application to be allowed.
ii. Supporting Affidavit.
11) The application was supported by the affidavit of Ngina Gitiba, sworn on 2 nd February 2026. She deponed that she instituted the suit on 15 th March 2023 through the firm of Owino & Company Advocates and thereafter made numerous inquiries regarding its progress.
12) According to the Applicant, she was consistently informed that she would be contacted once pre-trial or hearing dates were issued. She stated that despite making further follow-up calls in November 2024, March 2025, and July 2025, she was unable to reach the advocate managing her matter, as he was either absent from the office or indisposed, while members of the firm's staff were unable to provide any meaningful update.
13) The Applicant further deponed that on 21 st January 2026, she personally visited the offices of her former advocates to inspect the status of her case, but was unable to meet the advocate, and even the receptionist was unaware of the whereabouts of her file.
14) Concerned by the lack of information, she sought legal assistance from Cheboi Ouma Oriema & Associates Advocates, who, after conducting a search through the Judiciary system, informed her that the suit had been dismissed on 2 nd December 2024 for want of prosecution. She subsequently instructed the new firm to take over conduct of the matter on 29 th January 2026.
15) The Applicant averred that upon perusal of the court file, her new advocates established that her former advocates had neither taken steps to set the suit down for mention or hearing nor attended the mentions reflected in the court record. She further stated that she later confronted her former advocate, who denied ever having been served with the Notices to Show Cause.
16) Upon advice from her current advocates, which she believed to be true, she deponed that although Notices to Show Cause dated 10 th July 2024 and 7 th August 2024 appeared on the court record, neither she nor her advocates had been served with them, and there was no affidavit of service evidencing such service.
17) The Applicant maintained that she had always remained interested in prosecuting the suit and that any inactivity was attributable solely to the omissions of her former advocates rather than to any lack of diligence on her part.
18) She reiterated that the suit concerns commercial and contractual rights arising from unpaid sugarcane supplied to the Defendant and that justice required the dispute to be determined after a full hearing on the merits. She further deponed that reinstatement of the suit would occasion no prejudice to the Defendant beyond what could adequately be compensated by costs. In contrast, dismissal would irreparably prejudice her commercial interests.
19) She therefore urged the Court to exercise its discretion in her favour, stressing that the application had been brought promptly upon discovery of the dismissal, that she had approached the Court in good faith and with clean hands, and that she was willing to comply with any directions issued by the Court to facilitate the expeditious hearing and determination of the suit.
iii. Grounds of Opposition.
20) The Defendant/Respondent, Transmara Sugar Company Limited, opposed the Notice of Motion dated 2 nd February 2026 by filing Grounds of Opposition dated 12 th March 2026. The Respondent contended that the application was incompetent and legally untenable for failure to comply with the mandatory provisions of Order 9 Rule 9 of the Civil Procedure Rules, arguing that the Applicant's change of advocates after the dismissal of the suit had not been effected in accordance with the law.
21) The Respondent further maintained that the Applicant had failed to establish sufficient cause to warrant the exercise of the Court's discretion in her favour. It was argued that the delay in seeking reinstatement of the suit was inordinate and had not been satisfactorily explained, thereby disentitling the Applicant to the equitable relief sought. On that basis, the Respondent urged the Court to find that the application lacked merit and to dismiss it with costs.
C. Directions of the court.
22) The application was canvassed by way of written submissions.
D. THE PARTIES' SUBMISSIONS
i. The Plaintiff/Applicant’s Submissions
23) The Plaintiff/Applicant filed written submissions in support of the Notice of Motion dated 2 nd February 2026, urging the Court to set aside the order dismissing the suit for want of prosecution, reinstate the suit, and allow it to proceed to a hearing on the merits. The Applicant submitted that the application was properly before the Court and was necessitated by circumstances beyond her control, principally the failure of her former advocates to prosecute the matter and the failure to serve the Notices to Show Cause, which culminated in the dismissal of the suit.
24) The Applicant recounted that the suit was instituted on 15 th March 2023 through the firm of Owino & Company Advocates to recover payment allegedly due for sugarcane supplied to the Defendant under a contractual arrangement. It was submitted that, despite making numerous inquiries to her former advocates, including telephone calls in November 2024, March 2025, and July 2025, she was consistently unable to obtain meaningful information about the progress of the matter. She further submitted that upon personally visiting her former advocates’ offices on 21 st January 2026, she was unable to trace either the advocate managing her matter or her court file. Consequently, she instructed the firm of Cheboi Ouma Oriema & Associates Advocates, who discovered through the Judiciary system that the suit had been dismissed on 2 nd December 2024 for want of prosecution. It was emphasized that the application for reinstatement was filed on 2nd February 2026, only a few days after she became aware of the dismissal, demonstrating diligence and prompt action.
25) In response to the Respondent’s first ground of opposition, namely that the application offended Order 9 Rule 9 of the Civil Procedure Rules, the Applicant submitted that the objection was misconceived. Counsel argued that Order 9 Rule 9 applies only where there has been a judgment concluding the rights of the parties and not where there has merely been an order dismissing a suit for want of prosecution. It was submitted that a dismissal for want of prosecution is a procedural order arising from default and does not amount to a determination of the parties' substantive rights. Reliance was placed on Section 2 of the Civil Procedure Act, which distinguishes a decree from an order of dismissal for default. The Applicant further argued that the purpose of Order 9 Rule 9 is to safeguard the interests of an outgoing advocate who has brought a matter to its conclusion. This circumstance did not arise in the present case because the former advocates had failed to prosecute the suit, attend to mentions, or keep the Applicant informed of the progress of the matter.
26) The Applicant also submitted that the dismissal order itself was irregular because the Notices to Show Cause dated 10 th July 2024 and 7 th August 2024 had never been served upon either herself or her former advocates. She argued that there was no affidavit of service on the court record and that the failure to notify her before dismissing the suit violated her constitutional right to a fair hearing under Article 50 of the Constitution. Consequently, the Court was urged to invoke its inherent jurisdiction under Section 3A of the Civil Procedure Act, together with the overriding objective under Sections 1A and 1B of the Act, to set aside the dismissal ex debito justitiae rather than permit procedural technicalities to defeat substantive justice.
27) In support of this argument, the Applicant relied on Kochieng v County Assembly Service Board & another [2023] KEHC 1681 (KLR) , distinguishing that decision on the basis that the rationale behind Order 9 Rule 9 is to protect advocates who have concluded litigation on behalf of their clients, which was not the position in the present case. Greater reliance was placed on Sujal Construction Ltd v Medicross Kenya Ltd [2025] KEHC 4478 (KLR), where the High Court reinstated a suit that had been dismissed for want of prosecution, notwithstanding a delay of over one year in seeking reinstatement. Counsel submitted that in that case the Court held that sufficient cause should receive a liberal interpretation, that mistakes of counsel should not ordinarily be visited upon an innocent litigant, and that a litigant should not bear the consequences of an advocate’s default unless the litigant were personally complicit in the default. The Applicant submitted that the present case was analogous and that the same principles ought to apply.
28) Addressing the Respondent’s second ground of opposition regarding alleged inordinate delay, the Applicant submitted that sufficient cause had been demonstrated to justify reinstatement of the suit. Counsel argued that the applicable test under Order 12 Rule 7 of the Civil Procedure Rules is whether sufficient cause has been shown. That sufficient cause includes lack of knowledge of the dismissal due to non-service, prompt action upon discovery of the dismissal, and the absence of prejudice to the opposing party. It was submitted that the Applicant did not become aware of either the Notices to Show Cause or the dismissal of the suit until January 2026, as neither she nor her advocates had been served with the notices. The Applicant further maintained that the chronology of events demonstrated her continuous diligence through repeated attempts to obtain updates from her former advocates. That, immediately upon learning of the dismissal, she instructed new counsel and filed the present application without delay.
29) The Applicant further argued that the delay between the dismissal of the suit and the filing of the application was satisfactorily explained and was attributable solely to the omissions and neglect of her former advocates rather than any lack of interest on her part. Counsel submitted that Kenyan courts have consistently held that an innocent litigant ought not to be punished for the mistakes or negligence of counsel where the litigant has demonstrated diligence. It was therefore urged that the period of approximately fourteen months between the dismissal and the filing of the application could not properly be characterized as inordinate when viewed against the background of non-service and the conduct of the former advocates.
30) The Applicant further submitted that reinstatement of the suit would occasion no prejudice to the Defendant, particularly because the dispute concerned a straightforward contractual claim for unpaid sugarcane supplied to the Defendant. At the same time, an award of costs could adequately compensate for any inconvenience. Conversely, it was argued that refusing reinstatement would occasion grave prejudice to the Applicant by permanently denying her an opportunity to ventilate her commercial claim. Counsel therefore invoked Article 159(2) of the Constitution, urging the Court to administer justice without undue regard to procedural technicalities and to ensure that disputes are determined on their substantive merits rather than on procedural defaults.
31) On the whole, the Applicant submitted that the Court should exercise its discretion in favour of reinstating the suit, find that the application was competent and supported by sufficient cause, reject the Respondent's Grounds of Opposition, set aside the dismissal order of 2nd December 2024, reinstate the suit for hearing on the merits, and direct that the matter be mentioned for case management, with costs either awarded to the Applicant or be in the cause.
ii. The Defendant/Respondent’s Submissions
32) The Defendant/Respondent filed written submissions opposing the Plaintiff’s Notice of Motion dated 2 nd February 2026, urging the Court to dismiss the application with costs. The Respondent submitted that the application was incompetent for failure to comply with the mandatory provisions of Order 9 Rule 9 of the Civil Procedure Rules and, in any event, that the Plaintiff had failed to establish sufficient cause to warrant the exercise of the Court’s discretion in setting aside the dismissal order and reinstating the suit.
33) On the issue of competence, the Respondent submitted that the Plaintiff’s present advocates came on record after the suit had been dismissed on 2 nd December 2024, without first obtaining leave of the Court or filing a consent between the outgoing and incoming advocates as required under Order 9 Rule 9 of the Civil Procedure Rules. Counsel argued that the provision is couched in mandatory terms and applies whenever there is a change of advocates after judgment has been entered. It was therefore contended that the Plaintiff’s attempt to distinguish a dismissal for want of prosecution from a judgment was contrary to settled jurisprudence.
34) In support of that proposition, the Respondent relied on the decision of the Court of Appeal in Njue Ngai v Peanuts Njiru Ngai & Another [2016] eKLR , where the Court held that a judgment encompasses a judicial determination of the issues before the court and includes an order dismissing proceedings or a suit, such dismissal constituting a judgment in favour of the defendant. It was submitted that the dismissal of the present suit, therefore, amounted to a judgment, thereby triggering the mandatory requirements of Order 9 Rule 9.
35) The Respondent further relied on Stephen Mwangi Kimote v Murata Sacco Society [2018] eKLR, in which the High Court, guided by the decision in Njue Ngai v Ephantus Njiru Ngai & Another (supra), held that dismissal for want of prosecution constitutes a judgment and consequently upheld a preliminary objection, striking out an application that had been filed in contravention of Order 9 Rule 9. Counsel also cited Gicheru & Another v Ongonga [2023] KEELC 38 (KLR), where the Court held that an order dismissing a suit for want of prosecution amounts to a final judgment in favour of the adverse party and cannot be regarded as a mere procedural order.
36) Counsel further submitted that compliance with Order 9 Rule 9 is mandatory and not a mere procedural technicality capable of being overlooked. Reliance was placed on Lalji Bhimji Sanghani Builders & Contractors v City Council of Nairobi [2012] eKLR , in which the Court held that failure to comply with Order 9 Rule 9 renders the proceedings incompetent. Similar reliance was placed on Phylis Amwayi Okuyosi v Paul Musyoka Kaloki [2019] KEELC 896 (KLR), in which the Court struck out an application seeking reinstatement of a suit for failure to comply with the requirements governing change of advocates after judgment. The Respondent therefore submitted that because the Plaintiff neither sought leave of the Court nor filed a consent with the outgoing advocates before filing the present application, the application was fatally defective and ought to be struck out.
37) Without prejudice to the foregoing objection, the Respondent submitted that the Plaintiff had failed to demonstrate sufficient cause to justify reinstatement of the suit. Counsel argued that the suit had been dismissed on 2 nd December 2024 for want of prosecution after the Plaintiff failed to take any meaningful steps towards prosecuting the claim. Yet the application for reinstatement was filed only on 2 nd February 2026, more than one year after the dismissal. It was contended that such delay was inordinate, excessive, and wholly unexplained.
38) The Respondent rejected the Plaintiff’s attempt to attribute the delay entirely to the negligence of her former advocates, submitting that the responsibility for prosecuting a suit ultimately rests with the litigant rather than counsel. It was argued that although the Plaintiff alleged that she had made follow-up telephone calls to her advocates in November 2024, March 2025, and July 2025, those averments in fact demonstrated a lack of diligence. Counsel pointed out that the calls allegedly made in March and July 2025 occurred several months after the suit had already been dismissed. Yet, the Plaintiff failed to make any independent inquiry at the court registry to ascertain the status of the case. The Respondent further submitted that the Plaintiff did not explain the additional six-month period of inactivity between July 2025 and January 2026, when she eventually visited her advocates’ offices. Given that the claim concerned substantial sums allegedly due under a commercial contract for sugarcane supplied to the Defendant, counsel argued that a genuinely diligent litigant would not have allowed the matter to remain unattended for such a prolonged period.
39) To reinforce the principle that litigants bear primary responsibility for following up their cases, the Respondent relied on Maina & 3 Others (All Suing as Officials of Kondoo Training Centre Self Help Group) v Attorney General & 4 Others [2024] KEELC 37 (KLR), where the Court, in declining to extend time for filing an appeal, held that a case belongs to the litigant and not the advocate, and that where communication with counsel has broken down, a litigant is expected to make independent inquiries at the court registry regarding the progress of the matter. Counsel submitted that the same principle had been affirmed in Musau v Musau & Another [2025] KEELC 3602 (KLR) and Malindi Salt Works Limited v Rongai Workshop & Transport Ltd [2019] KEHC 4938 (KLR) , where the courts reiterated that litigants have a continuing obligation to monitor the progress of their cases and cannot indefinitely rely upon their advocates.
40) The Respondent also challenged the Plaintiff’s attempt to blame her former advocates without involving them in the present proceedings. Reliance was placed on Onyango v Techspa General Supplies & 2 Others [2022] KEHC 12937 (KLR) , in which the Court dismissed an application seeking to set aside judgment on the ground of advocate error, observing that where serious allegations of professional negligence are levelled against an advocate, the advocate ought to be served with the application and allowed to respond. Counsel submitted that in the present case, the Plaintiff’s former advocates had not been served with the application. Therefore, the Court had no basis upon which to ascertain the truthfulness of the allegations made against them.
41) The Respondent ultimately submitted that reinstatement of a suit is an equitable and discretionary remedy intended to benefit vigilant litigants rather than parties who sleep on their rights. It was argued that the Plaintiff had failed to demonstrate diligence, had not satisfactorily explained the prolonged delay between dismissal of the suit and the filing of the application, and had failed to comply with the mandatory procedural requirements governing change of advocates after judgment. The Court was therefore urged to find that the application amounted to an abuse of the court process and to dismiss it with costs to the Defendant/Respondent.
E. ISSUES FOR DETERMINATION
42) Having considered the pleadings, affidavits, Grounds of Opposition, rival submissions, authorities cited by counsel, and the applicable law, the Court is of the view that the issues falling for determination are: -
i. Whether the present application is incompetent for failure to comply with Order 9 Rule 9 of the Civil Procedure Rules.
ii. Whether the Plaintiff/Applicant has established sufficient cause to warrant the setting aside of the order dismissing the suit for want of prosecution and reinstatement of the suit.
iii. Who should bear the costs of the application?
F. ANALYSIS AND DETERMINATION
i. Whether the application is incompetent for failure to comply with Order 9 Rule 9 of the Civil Procedure Rules
43) The Defendant's primary objection is that the present advocates came on record after the dismissal of the suit without first obtaining leave of Court or filing a consent between the outgoing and incoming advocates as required under Order 9 Rule 9 of the Civil Procedure Rules.
44) Order 9 Rule 9 provides: -
"When there is a change of advocate, or when a party decides to act in person having previously engaged an advocate, after judgment has been passed, such change or intention to act in person shall not be effected without an order of the court—(a)upon an application with notice to all the parties; or(b)upon a consent filed between the outgoing advocate and the proposed incoming advocate or party intending to act in person as the case may be.”
45) The question, therefore, is whether the dismissal of a suit for want of prosecution constitutes a judgment for purposes of Order 9 Rule 9.
46) That question is no longer res integra. The Court of Appeal settled the position in Njue Ngai v Ephantus Njiru Ngai & Another [2016] eKLR, where it held:
"A judgment is a judicial determination or decision of a court on the main question(s) in a proceeding and includes dismissal of the proceedings or a suit …A dismissal of a suit …is a judgment for the defendant against the plaintiff."
47) Being a decision of the Court of Appeal, this Court is bound by that pronouncement.
48) The same position has consistently been adopted by the High Court in Stephen Mwangi Kimote v Murata Sacco Society [2018] eKLR, Gicheru & Another v Ongonga [2023] KEELC 38 (KLR), Lalji Bhimji Sanghani Builders & Contractors v City Council of Nairobi [2012] eKLR, and Phylis Amwayi Okuyosi v Paul Musyoka Kaloki [2019] KEELC 896 (KLR).
49) Consequently, I disagree with the Applicant's submission that Order 9 Rule 9 is inapplicable merely because the suit was dismissed for prosecution. The dismissal constituted a judgment within the meaning given by the Court of Appeal.
50) However, that does not conclude the matter. The jurisprudence emerging from our superior courts demonstrates that although compliance with Order 9 Rule 9 is mandatory, courts retain inherent jurisdiction to regularize representation where justice so demands, rather than driving parties away from the seat of justice.
51) The Supreme Court in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR emphasized that procedural rules are handmaidens of justice and should facilitate rather than impede the determination of disputes on their merits.
52) Likewise, Article 159(2)(d) of the Constitution obligates courts to administer justice without undue regard to procedural technicalities.
53) The present application itself seeks leave of the Court to set aside the dismissal and regularize proceedings. Striking it out solely because incoming counsel did not first obtain leave would elevate procedural form over substantive justice, particularly where the complaint concerns the conduct of previous advocates.
54) Accordingly, while I find that Order 9 Rule 9 was applicable, I am not persuaded that the omission is fatal in the peculiar circumstances of this case. The defect is curable through the exercise of this Court's discretion.
ii. Whether sufficient cause has been established to warrant reinstatement
55) The applicable law is Order 12 Rule 7 of the Civil Procedure Rules together with the Court's inherent jurisdiction under Section 3A of the Civil Procedure Act.
56) The principles governing reinstatement are now well settled. The discretion is wide but must be exercised judiciously and not capriciously.
57) In Shah v Mbogo & Another [1967] EA 116, Harris J. stated that the discretion to set aside is intended:
"...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 course of justice."
58) That principle has remained the guiding authority for decades.
59) Similarly, in Patel v E.A. Cargo Handling Services Ltd [1974] EA 75 , the East African Court of Appeal held that there are no limits to the judge's discretion except that it should be exercised to avoid injustice.
60) In determining whether sufficient cause has been shown, the Court considers several factors, including: -
a. the explanation for the delay.
b. whether the applicant acted promptly upon discovery;
c. whether there was proper service;
d. prejudice likely to be suffered by either party; and
e. the broader interests of justice.
61) The Plaintiff asserts that neither she nor her advocates received the Notices to Show Cause dated 10 th July 2024 and 7 th August 2024. Significantly, she further depones that there is no affidavit of service in the court file.
62) The Defendant elected to oppose the application purely on the grounds of Opposition. No reply affidavit was filed to controvert the Plaintiff's factual deposition that the Notices to Show Cause were not served. Consequently, the Plaintiff's factual assertions remain unchallenged.
63) It is trite that Grounds of Opposition raise points of law only and cannot controvert factual matters deponed to on oath. See Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696.
64) Equally important is the fact that the Court record does not disclose any affidavit of service demonstrating that the Notices to Show Cause were ever served.
65) Order 17 Rule 2 of the Civil Procedure Rules contemplates service of a Notice to Show Cause before dismissal of a suit. Service is not an idle procedural step. It is the mechanism through which the constitutional right to be heard under Article 50(1) is safeguarded.
66) Where no notice is served, the dismissal becomes procedurally irregular because a party is condemned without being allowed to explain the delay.
67) I also find merit in the Plaintiff's explanation regarding the delay. Although litigants bea
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