REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
HCCA NO. 22 OF 2018
PIUS KIRONGOSI NDIWA ...................................... APPELLANT
- VERSUS -
KENYA SEED COMPANY LIMITED ................... 1 ST RESPONDENT
THE ATTORNEY GENERAL ............................. 2 ND RESPONDENT
AND
CALVIN NDIWA KIBET….... APPLICANT (PROPOSED APPELLANT)
R U L I N G
1. The applicant in this matter seeks the following orders: that the honorable Court be pleased to reinstate this appeal, which was dismissed for want of prosecution, and that costs be awarded in the outcome of the Appeal.
2. The application is supported by the affidavit of the applicant, Calvin Ndiwa Kibet, the proposed appellant, sworn on 4/2/2026 and grounded in the grounds set out in the face of the application.
3. The applicant deposes that he is the son of the appellant, Pius Kirongosi Ndiwa, who died on 29/4/2024, and that he has since obtained a letter of administration of the deceased’s estate. That since his father’s demise, the family had agreed that no steps be taken in the instant appeal without the input of all family members, thus causing the delay in checking the progress of the appeal and issuing instructions. That he learnt from his advocate that the instant appeal had been dismissed on 9/7/2025. That no prejudice would be suffered by the respondents if the instant appeal is reinstated.
4. The application was opposed by the respondents vide their Grounds of Opposition dated 25/2/2026, in which they raised seven grounds, to wit, that the application was bad in law and fatally defective; that it lacked merit and failed to demonstrate sufficient cause for reinstatement; that it was an afterthought and an abuse of court process intended to bypass the principle of the finality of litigation; that it offended the overriding objective of the Civil Procedure Act; that it was a tactical manoeuvre aimed at frustrating the respondents’ fruits of the dismissal order dated 9/7/2025; and that it was an attempt to use the court’s equitable jurisdiction to cure the applicant’s own laches, indolence and delay.
5. The application was disposed off by way of submissions, which I have duly considered.
DETERMINATION
6. The law governing the reinstatement of suits dismissed is set out in Order 12 Rule 7 of the Civil Procedure Rules, under which the court may set aside the dismissal order on such terms as may be just. The power to reinstate is discretionary.
7. The courts have set out the factors to be taken into account in such cases. In Ivita v Kyumbu [1984] KLR 441 (Chesoni, J), the considerations were said to include whether the delay is prolonged and inexcusable; whether justice can be done despite the delay; whether justice is for both sides, so the positions of both sides must be considered; whether the other side would be prejudiced by the delay; and the reasons given for the delay.
8. Whether to reinstate a dismissed suit calls for the exercise of discretion in accordance with Articles 50 and 159 of the Constitution and the oxygen principle in sections 1, 1A and 3A of the Civil Procedure Act, Cap 21, Laws of Kenya (see the case of John Nahashon Mwangi v Kenya Finance Bank Limited (in Liquidation) [2015] eKLR [2015] KEHC 6789 (KLR) (Gikonyo, J).
9. I have carefully perused the court file and find as follows. The appellant filed his memorandum of appeal on 19.4.2018. The appeal was admitted to hearing on 20/7/2021. From the date of admission of the appeal, the appellant never proceeded with the prosecution of the appeal for one reason or another.
10. When the matter went before the Deputy Registrar on 24/7/2024, counsel for the respondents confirmed that they had finally been served with the Record of Appeal and the appellant’s submissions. However, the court was also informed that the appellant had passed away and that the family was in the process of substituting him. This process dragged on, with the appellant’s advocate seeking further adjournments on the ground that the deceased’s family had not agreed on who was to replace the deceased, despite leave being granted on 29/1/2025 for substitution.
11. On 28/5/2025, the Deputy Registrar noted that the appellant’s side had been granted sufficient time to effect the substitution but had failed to do so, and accordingly listed the appeal for Notice to Show Cause before this court as to why the appeal ought not be dismissed.
12. The matter came before this court on 9/7/2025, when, despite prior service of the Notice to Show Cause, there was no appearance by the appellant. The court dismissed the suit for want of prosecution.
13. It must be noted that the respondent did not move the court. On its own motion, the court served the appellant with the Notice to Show Cause Order, which was the proper course of action.
14. From the record, it is evident that this appeal has been in limbo since its filing on 19/4/2018. The appellant never demonstrated any urgency in prosecuting the appeal during his lifetime. In fact, from the date of filing, the respondents were served with the appeal only on 24/7/2024, almost 6 years later. Even then, following the deceased’s passing, his beneficiaries exhibited the same delay in his substitution, and at the time of determining this appeal, none of the deceased’s beneficiaries had been substituted on his behalf, despite leave having been granted for the same on 29/1/2025. Further, following the dismissal of the instant appeal on 9/7/2025, the appellant’s beneficiaries did not move the court for 6 months, until 4/2/2026, when they filed the instant application. This clearly demonstrates a lack of desire to prosecute the appeal. The applicant only became active after the dismissal. I do not think the appellant’s heirs have done much to aid his case.
15. The applicant cannot expect the court to exercise its discretion in his favour to the prejudice of the Respondents, who will likely suffer prejudice if the orders sought are granted. Litigation must come to an end.
16. I find no merit in the application dated 4/2/2026 and accordingly dismiss it. There shall be no order as to costs. The appeal file herein shall be closed.
Dated, signed and delivered virtually this 28 th Day of May 2026.
R.E. OUGO
JUDGE
In the presence:
Applicant/Absent
Respondent/ Absent
Wilkister C/A
HCCA NO. 22 OF 2018-RULING 2
IN THE HIGH COURT OF KENYA AT BUNGOMA
HCCA NO. 22 OF 2018
PIUS KIRONGOSI NDIWA ...................................... APPELLANT
- VERSUS -
KENYA SEED COMPANY LIMITED ................... 1 ST RESPONDENT
THE ATTORNEY GENERAL ............................. 2 ND RESPONDENT
AND
CALVIN NDIWA KIBET….... APPLICANT (PROPOSED APPELLANT)
R U L I N G
1. The applicant in this matter seeks the following orders: that the honorable Court be pleased to reinstate this appeal, which was dismissed for want of prosecution, and that costs be awarded in the outcome of the Appeal.
2. The application is supported by the affidavit of the applicant, Calvin Ndiwa Kibet, the proposed appellant, sworn on 4/2/2026 and grounded in the grounds set out in the face of the application.
3. The applicant deposes that he is the son of the appellant, Pius Kirongosi Ndiwa, who died on 29/4/2024, and that he has since obtained a letter of administration of the deceased’s estate. That since his father’s demise, the family had agreed that no steps be taken in the instant appeal without the input of all family members, thus causing the delay in checking the progress of the appeal and issuing instructions. That he learnt from his advocate that the instant appeal had been dismissed on 9/7/2025. That no prejudice would be suffered by the respondents if the instant appeal is reinstated.
4. The application was opposed by the respondents vide their Grounds of Opposition dated 25/2/2026, in which they raised seven grounds, to wit, that the application was bad in law and fatally defective; that it lacked merit and failed to demonstrate sufficient cause for reinstatement; that it was an afterthought and an abuse of court process intended to bypass the principle of the finality of litigation; that it offended the overriding objective of the Civil Procedure Act; that it was a tactical manoeuvre aimed at frustrating the respondents’ fruits of the dismissal order dated 9/7/2025; and that it was an attempt to use the court’s equitable jurisdiction to cure the applicant’s own laches, indolence and delay.
5. The application was disposed off by way of submissions, which I have duly considered.
DETERMINATION
6. The law governing the reinstatement of suits dismissed is set out in Order 12 Rule 7 of the Civil Procedure Rules, under which the court may set aside the dismissal order on such terms as may be just. The power to reinstate is discretionary.
7. The courts have set out the factors to be taken into account in such cases. In Ivita v Kyumbu [1984] KLR 441 (Chesoni, J), the considerations were said to include whether the delay is prolonged and inexcusable; whether justice can be done despite the delay; whether justice is for both sides, so the positions of both sides must be considered; whether the other side would be prejudiced by the delay; and the reasons given for the delay.
8. Whether to reinstate a dismissed suit calls for the exercise of discretion in accordance with Articles 50 and 159 of the Constitution and the oxygen principle in sections 1, 1A and 3A of the Civil Procedure Act, Cap 21, Laws of Kenya (see the case of John Nahashon Mwangi v Kenya Finance Bank Limited (in Liquidation) [2015] eKLR [2015] KEHC 6789 (KLR) (Gikonyo, J).
9. I have carefully perused the court file and find as follows. The appellant filed his memorandum of appeal on 19.4.2018. The appeal was admitted to hearing on 20/7/2021. From the date of admission of the appeal, the appellant never proceeded with the prosecution of the appeal for one reason or another.
10. When the matter went before the Deputy Registrar on 24/7/2024, counsel for the respondents confirmed that they had finally been served with the Record of Appeal and the appellant’s submissions. However, the court was also informed that the appellant had passed away and that the family was in the process of substituting him. This process dragged on, with the appellant’s advocate seeking further adjournments on the ground that the deceased’s family had not agreed on who was to replace the deceased, despite leave being granted on 29/1/2025 for substitution.
11. On 28/5/2025, the Deputy Registrar noted that the appellant’s side had been granted sufficient time to effect the substitution but had failed to do so, and accordingly listed the appeal for Notice to Show Cause before this court as to why the appeal ought not be dismissed.
12. The matter came before this court on 9/7/2025, when, despite prior service of the Notice to Show Cause, there was no appearance by the appellant. The court dismissed the suit for want of prosecution.
13. It must be noted that the respondent did not move the court. On its own motion, the court served the appellant with the Notice to Show Cause Order, which was the proper course of action.
14. From the record, it is evident that this appeal has been in limbo since its filing on 19/4/2018. The appellant never demonstrated any urgency in prosecuting the appeal during his lifetime. In fact, from the date of filing, the respondents were served with the appeal only on 24/7/2024, almost 6 years later. Even then, following the deceased’s passing, his beneficiaries exhibited the same delay in his substitution, and at the time of determining this appeal, none of the deceased’s beneficiaries had been substituted on his behalf, despite leave having been granted for the same on 29/1/2025. Further, following the dismissal of the instant appeal on 9/7/2025, the appellant’s beneficiaries did not move the court for 6 months, until 4/2/2026, when they filed the instant application. This clearly demonstrates a lack of desire to prosecute the appeal. The applicant only became active after the dismissal. I do not think the appellant’s heirs have done much to aid his case.
15. The applicant cannot expect the court to exercise its discretion in his favour to the prejudice of the Respondents, who will likely suffer prejudice if the orders sought are granted. Litigation must come to an end.
16. I find no merit in the application dated 4/2/2026 and accordingly dismiss it. There shall be no order as to costs. The appeal file herein shall be closed.
Dated, signed and delivered virtually this 28 th Day of May 2026.
R.E. OUGO
JUDGE
In the presence:
Applicant/Absent
Respondent/ Absent
Wilkister C/A
HCCA NO. 22 OF 2018-RULING 2