(Being an appeal from a ruling of Hon.K.D. Ole Keiwua in Milimani CMCC No.3479 of 2019 dated 13 th May,2025)
The Appellant, PLAN AND PLACE INSURANCE BROKERS LIMITED, being aggrieved by the Ruling and Orders of the Honorable Chief Magistrate Daniel Ole Keiwua vide Milimani Commercial Civil Case No.3479 of 2019 delivered on 13th May 2025, has lodged the present appeal vide a Memorandum of appeal dated 12th June 2025.
BACKROUND OF THE APPEAL
The Respondent filed a civil suit against the Appellant, on 16th May 2019, claiming a sum of Ksh. 12,198,395.76/=, alleged to be due and owing in respect of unpaid insurance premiums relating to various insurance policies issued to the Appellant’s clients.
The Appellant entered appearance and filed its Statement of Defense on 6 th November 2019.
Thereafter, no steps were taken in the matter until 6 th March 2024, when the matter came up for mention.
On the said date, the trial court dismissed the case, on its own motion, for want of prosecution pursuant to the dismissal order issued on the same date.
Upon the said dismissal, the Respondent moved the trial court by way of an application dated 25 th March 2024 seeking, inter alia, the reinstatement of Civil Case No. 3479 of 2019 and that the same be set down for hearing on the merits.
The Appellant opposed the said application by filing Replying Affidavits sworn by Paul Maina and Eunice Ngea, and both parties filed written submissions.
Upon consideration, the Learned Magistrate, Honourable K.D. Ole Keiuwa, allowed the application and ordered the reinstatement of the suit.
Aggrieved by the said Ruling and Order of the trial court, the Appellant preferred the instant appeal premised on the following grounds:
a. That the learned trial Magistrate erred in law and in fact in allowing the Respondent’s application for reinstatement of the suit that was dismissed for want of prosecution due to the Respondent’s failure to prosecute the case for over 5 years.
b. That the Ruling of the learned trial magistrate was per in curium as it neither considered the law applicable to the application to reinstate the case, nor did it consider the objections by the Defendant.
c. That the learned trial Magistrate erred in law and in fact by finding that the fact that the application to reinstate the case was filed without delay was singularly sufficient grounds to allow the application to reinstate the case.
d. That the learned trial Magistrate erred in law and in fact by failing to provide sufficient reasons for allowing the Respondent’s application dated 25th March 2024.
e. That the learned trial magistrate erred in fact and law by violating the principle of stare decisis by ruling in contravention of established precedents on the principles applicable to an application for reinstatement of a suit.
f. That the learned trial magistrate erred in fact and law by failing to appreciate and protect the Appellant’s constitutional right, under Article 50 of the Constitution of Kenya 2010, to have the trial begin and conclude without unreasonable delay.
g. That the learned trial magistrate erred in fact and law by failing to appreciate that there was absolutely no evidence to show that the Respondent made any steps to prosecute the case in over 5 years.
h. That the learned trial magistrate erred in fact and law by failing to appreciate that the Respondent’s inordinate delay in prosecuting the case seriously prejudiced the Appellant.
i. That the learned trial magistrate erred in fact and law by failing to appreciate that the cause of action in the case arose over 7 years ago and several key officers who were involved in the dispute have since left the Appellant’s employment.
j. That the learned trial magistrate erred by failing to consider and apply the facts and evidence of the Appellant in the application before him, that the Respondent never made an effort to prosecute the main suit, thereby arriving at an erroneous conclusion.
k. That the Ruling of the trial Court is an abuse of judicial discretion.
l. That the Ruling of the trial Court is against the weight of the evidence and the applicable law.
APPELLANT’S SUBMISSIONS
The Appellant submitted that the present case squarely falls within the circumstances in which an appellate court is justified to interfere with the exercise of judicial discretion. That the Learned Trial Magistrate erred in law and in fact, thereby arriving at an erroneous decision. Consequently, the Appellant calls for the intervention of this Court to set aside the said decision upon the grounds set out in the Memorandum of Appeal.
The appellant submitted that the learned trial Magistrate erred in law and in fact by allowing the Respondent’s application for reinstatement of a suit that had been dismissed for want of prosecution, notwithstanding that the Respondent had failed to take any meaningful step to prosecute the matter for over five (5) years. Such prolonged and unexplained inactivity fell squarely within the ambit of dismissal under Order 17 Rule 2 of the Civil Procedure Rules.
The appellant submitted that the explanation by respondent of there being Covid -19 is neither plausible nor sufficient in light of the prolonged period of inactivity spanning over five (5) years. The Respondent did not demonstrate how the pandemic, which arose in or about 2020, could account for the entire period of inaction, including the time both before and after the pandemic.
The appellant submitted that the Respondent’s explanation is riddled with inconsistencies, unexplained gaps, and lacks evidentiary support. It falls far short of the threshold of sufficient cause as defined in law. The Learned Trial Magistrate therefore erred in accepting such an explanation and in reinstating the suit despite the Respondent’s failure to justify the inordinate delay.
That the Respondent did not deserve exercise of discretion in their favour due to its indolent conduct in prosecuting the case. The appellant cited case of Ithiga v Mwangi (Environment & Land Case 170 of 2014) [2025] KEELC 305 (KLR) it was held:
“The exercise of this discretion is not intended to aid a person who deliberately seeks to obstruct justice but to avoid hardship resulting from an accident, or excusable mistake or error.”
The appellant’s case is that Article 50 of the Constitution of Kenya, 2010 guarantees every party the right to a fair hearing, which includes the right to have disputes determined without unreasonable delay. That the reinstatement of the suit, in the face of the Respondent’s prolonged and unexplained inaction, offends this constitutional guarantee and exposes the Appellant to an unfair trial. That the appellant will be unable to mount a proper defence thereby undermining the fairness of the trial.
RESPONDENT’S SUBMISSIONS
The Respondent submitted that it is trite law that a suit such as the matter herein should not be dismissed for want of prosecution on a date when the suit is fixed for mention and not a hearing date which is what unfortunately happened on the 6th March 2024 when the suit came for mention before the Honourable Mrs.LB.Koech Senior Principal Magistrate.
The respondent cited the Court of Appeal decision in Kimata v Maloba & another (Civil Appeal 103 of 2018) [2022] KECA 1114 (KLR) (7 October 2022) (Judgment) where it was held at page 4 that;
“It seems to me strange that the suit was dismissed during a mention, a session that is not a hearing per se, but an opportunity for the court to give directions to the parties on the steps to take before hearing. It must be understood that courts do not exist merely for purposes of instilling discipline. We exist to do justice, not to crack the whip and wave the red card at every seeming default or infraction.
I can do no better than associate myself with the sentiments of Apaloo JA in Philip Keiptoo Chemwolo & another vs. Augustine Kubende [1986] eKLR to wit: I think a distinguished equity judge has said: “Blunders will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case determined on its merits.”
The Respondent had explained in the application to reinstate the suit that the delay in prosecuting the suit was caused by the Covid-19 pandemic which hampered normal court operations and thereby inhibited the Respondent from obtaining an earlier pre-trail date from March 2020 to the end of 2021.
The respondent’s case is that it was not until 2022 when normal court operations stabilized and the Respondent embarked on trying to fix the suit for pre-trial conference as demonstrated by its Advocate’s letters dated 2nd December 2022, 1st March 2023, 30th May 2023 and 30th August 2023 to the court registry seeking to be given a date for pre-trial conference but the court registry was unable to give the Respondent the mention date.
The Respondent submitted that its suit ought not to have been dismissed since the delay in having the matter heard was due to circumstances beyond its control and in any event at no time did the Appellant apply for the suit to be dismissed for want of prosecution which infers that they have suffered no prejudice.
The Respondent therefore submitted that in view of what is stated above, the Honourable Magistrate correctly exercised his discretion in reinstating the suit in his ruling dated 13 th May 2025 when he set aside the dismissal order dated 6 th March 2024.
That the Appellant has not been prejudiced by the reinstatement of the suit, because in any event the Appellant had explicitly stated in the documents filed on the 6 th November 2019 that it was “still in the process of investigating and verifying the aspects of the matters alleged in the suit and in view thereof, shall file and furnish witness statements at a later date before the trial” which means it used the period of the delay to prepare for the suit and to obtain the witness statements it required. Further that the Appellant had not filed any witness statements as at 6 th March 2024.
The Respondent submitted that it had also filed a Notice of Preliminary Objection dated 21 st August 2024 under the provisions of Order 9 Rule 9 of the Civil Procedure Rules, in response to the Notice of Change dated 8 th July 2024 filed by the firm of Maina Gathara Advocates and in objecting to the filing of the Replying Affidavits of Eunice Ngea and Paul Maina Gathara Advocate both dated 20 th August 2024 filed by the said firm of Advocates.
The preliminary objection raised was to the effect that the firm of Maina Gathara Advocates was not properly on record for the Appellant and therefore not competent to file the Replying Affidavits or any pleadings on behalf of the Appellant, rendering its Notice of Change dated 8 th July 2024 and the Replying Affidavits of Eunice Ngea and Paul Maina Gathara Advocate both dated 20 th August 2024 fatally defective ab initio, which should have been struck out from the court record.
That the firm of Maina Gathara Advocates could not therefore file a Notice of Change of Advocates from Shapley Barrer & Co. Advocates who were on record for the Appellant/Defendant when the suit herein was dismissed on the 6 th March 2024, until and unless they obtained leave of this Honourable Court to come on record in accordance with the provisions of Order 9 Rule 9 of the Civil Procedure Rules, which Court Order they failed to obtain.
ANALYSIS AND DETERMINATION
This whole appeal turns on whether the trial court properly exercised its discretion in reinstating the respondent’s suit which was dismissed for want of prosecution on 6 th March 2024.
It is well settled that an appellate court will not lightly interfere with the trial court’s exercise of discretion save where it is demonstrated that the trial court acted on wrong principles, misapprehended the facts, considered irrelevant matters, omitted relevant considerations or reached an unjustified conclusion. This is buttressed by the locus classicus case of Mbogo & Another –v- Shah (1968) EA 93 as stated in Crecentia Veronica Atieno –v- Samuel Oloo Okoth (2017) eKLR where it was held that:
“I think it is well settled that this court will not interfere with the exercise of discretion by the inferior court unless it is satisfied that the decision is clearly wrong because it has misdirected itself or because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters which it should have taken into account or consideration and in doing so arrived at a wrong conclusion.”
This being a first appeal, as a first appellate court, it is my duty to subject the whole of the evidence and the record to a fresh and exhaustive scrutiny and make my own conclusion whether the trial court properly exercised its discretion in reinstating the dismissed suit.
From a ruling of the trial court dated 6 th March 2024, the court appeared to have proceeded on the premise that the matter was listed for notice to show cause why the suit should not be dismissed for want of prosecution under Order 17 Rule 2(1) of the Civil Procedure Rules. In fact, the suit was dismissed for want of prosecution under Order 17 Rule 2(1) of the Civil Procedure Rules.
Order 17 Rule 2(1) of the Civil Procedure Rules provides as follows:
“In any suit in which no application has been made or step taken by either party for one year, the court may give notice in writing to the parties to show cause why the suit should not be dismissed, and if cause is not shown to its satisfaction, may dismiss the suit . ”
A dismissal of a suit order under 17 rule 2(1) of the civil Procedure Rules must therefore be preceded by a notice to the parties to show cause why the suit should not be dismissed for want of prosecution. Only if the parties, upon receipt of the notice fail to show cause to the satisfaction of the court should the suit be dismissed for want of prosecution.
The court record show that the suit had been fixed for mention. Unfortunately, none of the parties appeared. The respondent’s counsel, in the affidavit in support of his application to reinstate the suit, explained that due to an inadvertent technical hitch, it failed to log into the court session in time and only did so after the matter was dealt with.
Dismissal of a suit without hearing the parties is a draconian measure and must not be done casually particularly where a suit has not been fixed for hearing. Had the suit been fixed for hearing and both parties had notice of the hearing date, this would have been a perfect case to dismiss a suit for want of attendance and/or prosecution.
In the case of Kimata –v- Maloba & Another (2022) KECA 1114 (KLR) 7.10.2022 (Judgment) the court of appeal held:
“It seems to me strange that the suit was dismissed during a mention, a session that is not a hearing per se, but an opportunity for the court to give directions to the parties on the steps to take before hearing. It must be understood that courts do not exist merely for purposes of instilling discipline. We exist to do justice, not to crack the whip and wave the red card at every seeming default or infraction. I can do no better than associate myself with the sentiments of Apaloo JA in Philip Keiptoo Chemwolo & another vs. Augustine Kubende [1986] eKLR to wit: I think a distinguished equity judge has said: “Blunders will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case determined on its merits.”
It is therefore my finding that the dismissal of the suit on the date fixed for mention was irregular and did not advance the overriding objective in the administration of justice. The right to a hearing is a well-protected right in the constitution. The court must always guard the right to be heard as it is the core foundation and heart of the right to a fair hearing.
The appellant’s plea that the delay in a determination of the suit compromised its right to fair hearing is not entirely accurate. The appellant had not filed witness statement or list of documents as at the time the suit was dismissed. The appellant had never moved the court to have the suit fixed for hearing. The appellant on its part appeared to have ‘gone to sleep’ and only ‘woke up from its slumber’ when served with the application to reinstate the suit. I find that this is a classic case of a defendant seeking to rely on its own indolence to reap advantage.
As I conclude, my attention has been drawn to a notice of preliminary objection dated 21.8.2024 challenging the notice of change of advocate dated 8.7.2024 by the appellant’s advocate. Had the preliminary objection succeeded, the entire appeal herein would have been rendered incompetent. I do not wish to delve further into the preliminary objection as it was never dealt with on merit.
The upshot of the foregoing is that the right to be heard is at the cornerstone of the rule of law. Courts of law exists to decide on the rights of parties on merit. To deny a party a right to be heard should be the last resort of a court of law. The learned magistrate cannot be faulted for his finding that the respondent was entitled to its day in court.
The result is that the appeal is without merit. It is dismissed with no order as to costs.
DATED, SIGNED AND DELIVERED THIS 22 ND SEPTEMBER 2026
D.O. ONYANGO
JUDGE
9
The Appellant, PLAN AND PLACE INSURANCE BROKERS LIMITED, being aggrieved by the Ruling and Orders of the Honorable Chief Magistrate Daniel Ole Keiwua vide Milimani Commercial Civil Case No.3479 of 2019 delivered on 13th May 2025, has lodged the present appeal vide a Memorandum of appeal dated 12th June 2025.
BACKROUND OF THE APPEAL
The Respondent filed a civil suit against the Appellant, on 16th May 2019, claiming a sum of Ksh. 12,198,395.76/=, alleged to be due and owing in respect of unpaid insurance premiums relating to various insurance policies issued to the Appellant’s clients.
The Appellant entered appearance and filed its Statement of Defense on 6 th November 2019.
Thereafter, no steps were taken in the matter until 6 th March 2024, when the matter came up for mention.
On the said date, the trial court dismissed the case, on its own motion, for want of prosecution pursuant to the dismissal order issued on the same date.
Upon the said dismissal, the Respondent moved the trial court by way of an application dated 25 th March 2024 seeking, inter alia, the reinstatement of Civil Case No. 3479 of 2019 and that the same be set down for hearing on the merits.
The Appellant opposed the said application by filing Replying Affidavits sworn by Paul Maina and Eunice Ngea, and both parties filed written submissions.
Upon consideration, the Learned Magistrate, Honourable K.D. Ole Keiuwa, allowed the application and ordered the reinstatement of the suit.
Aggrieved by the said Ruling and Order of the trial court, the Appellant preferred the instant appeal premised on the following grounds:
a. That the learned trial Magistrate erred in law and in fact in allowing the Respondent’s application for reinstatement of the suit that was dismissed for want of prosecution due to the Respondent’s failure to prosecute the case for over 5 years.
b. That the Ruling of the learned trial magistrate was per in curium as it neither considered the law applicable to the application to reinstate the case, nor did it consider the objections by the Defendant.
c. That the learned trial Magistrate erred in law and in fact by finding that the fact that the application to reinstate the case was filed without delay was singularly sufficient grounds to allow the application to reinstate the case.
d. That the learned trial Magistrate erred in law and in fact by failing to provide sufficient reasons for allowing the Respondent’s application dated 25th March 2024.
e. That the learned trial magistrate erred in fact and law by violating the principle of stare decisis by ruling in contravention of established precedents on the principles applicable to an application for reinstatement of a suit.
f. That the learned trial magistrate erred in fact and law by failing to appreciate and protect the Appellant’s constitutional right, under Article 50 of the Constitution of Kenya 2010, to have the trial begin and conclude without unreasonable delay.
g. That the learned trial magistrate erred in fact and law by failing to appreciate that there was absolutely no evidence to show that the Respondent made any steps to prosecute the case in over 5 years.
h. That the learned trial magistrate erred in fact and law by failing to appreciate that the Respondent’s inordinate delay in prosecuting the case seriously prejudiced the Appellant.
i. That the learned trial magistrate erred in fact and law by failing to appreciate that the cause of action in the case arose over 7 years ago and several key officers who were involved in the dispute have since left the Appellant’s employment.
j. That the learned trial magistrate erred by failing to consider and apply the facts and evidence of the Appellant in the application before him, that the Respondent never made an effort to prosecute the main suit, thereby arriving at an erroneous conclusion.
k. That the Ruling of the trial Court is an abuse of judicial discretion.
l. That the Ruling of the trial Court is against the weight of the evidence and the applicable law.
APPELLANT’S SUBMISSIONS
The Appellant submitted that the present case squarely falls within the circumstances in which an appellate court is justified to interfere with the exercise of judicial discretion. That the Learned Trial Magistrate erred in law and in fact, thereby arriving at an erroneous decision. Consequently, the Appellant calls for the intervention of this Court to set aside the said decision upon the grounds set out in the Memorandum of Appeal.
The appellant submitted that the learned trial Magistrate erred in law and in fact by allowing the Respondent’s application for reinstatement of a suit that had been dismissed for want of prosecution, notwithstanding that the Respondent had failed to take any meaningful step to prosecute the matter for over five (5) years. Such prolonged and unexplained inactivity fell squarely within the ambit of dismissal under Order 17 Rule 2 of the Civil Procedure Rules.
The appellant submitted that the explanation by respondent of there being Covid -19 is neither plausible nor sufficient in light of the prolonged period of inactivity spanning over five (5) years. The Respondent did not demonstrate how the pandemic, which arose in or about 2020, could account for the entire period of inaction, including the time both before and after the pandemic.
The appellant submitted that the Respondent’s explanation is riddled with inconsistencies, unexplained gaps, and lacks evidentiary support. It falls far short of the threshold of sufficient cause as defined in law. The Learned Trial Magistrate therefore erred in accepting such an explanation and in reinstating the suit despite the Respondent’s failure to justify the inordinate delay.
That the Respondent did not deserve exercise of discretion in their favour due to its indolent conduct in prosecuting the case. The appellant cited case of Ithiga v Mwangi (Environment & Land Case 170 of 2014) [2025] KEELC 305 (KLR) it was held:
“The exercise of this discretion is not intended to aid a person who deliberately seeks to obstruct justice but to avoid hardship resulting from an accident, or excusable mistake or error.”
The appellant’s case is that Article 50 of the Constitution of Kenya, 2010 guarantees every party the right to a fair hearing, which includes the right to have disputes determined without unreasonable delay. That the reinstatement of the suit, in the face of the Respondent’s prolonged and unexplained inaction, offends this constitutional guarantee and exposes the Appellant to an unfair trial. That the appellant will be unable to mount a proper defence thereby undermining the fairness of the trial.
RESPONDENT’S SUBMISSIONS
The Respondent submitted that it is trite law that a suit such as the matter herein should not be dismissed for want of prosecution on a date when the suit is fixed for mention and not a hearing date which is what unfortunately happened on the 6th March 2024 when the suit came for mention before the Honourable Mrs.LB.Koech Senior Principal Magistrate.
The respondent cited the Court of Appeal decision in Kimata v Maloba & another (Civil Appeal 103 of 2018) [2022] KECA 1114 (KLR) (7 October 2022) (Judgment) where it was held at page 4 that;
“It seems to me strange that the suit was dismissed during a mention, a session that is not a hearing per se, but an opportunity for the court to give directions to the parties on the steps to take before hearing. It must be understood that courts do not exist merely for purposes of instilling discipline. We exist to do justice, not to crack the whip and wave the red card at every seeming default or infraction.
I can do no better than associate myself with the sentiments of Apaloo JA in Philip Keiptoo Chemwolo & another vs. Augustine Kubende [1986] eKLR to wit: I think a distinguished equity judge has said: “Blunders will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case determined on its merits.”
The Respondent had explained in the application to reinstate the suit that the delay in prosecuting the suit was caused by the Covid-19 pandemic which hampered normal court operations and thereby inhibited the Respondent from obtaining an earlier pre-trail date from March 2020 to the end of 2021.
The respondent’s case is that it was not until 2022 when normal court operations stabilized and the Respondent embarked on trying to fix the suit for pre-trial conference as demonstrated by its Advocate’s letters dated 2nd December 2022, 1st March 2023, 30th May 2023 and 30th August 2023 to the court registry seeking to be given a date for pre-trial conference but the court registry was unable to give the Respondent the mention date.
The Respondent submitted that its suit ought not to have been dismissed since the delay in having the matter heard was due to circumstances beyond its control and in any event at no time did the Appellant apply for the suit to be dismissed for want of prosecution which infers that they have suffered no prejudice.
The Respondent therefore submitted that in view of what is stated above, the Honourable Magistrate correctly exercised his discretion in reinstating the suit in his ruling dated 13 th May 2025 when he set aside the dismissal order dated 6 th March 2024.
That the Appellant has not been prejudiced by the reinstatement of the suit, because in any event the Appellant had explicitly stated in the documents filed on the 6 th November 2019 that it was “still in the process of investigating and verifying the aspects of the matters alleged in the suit and in view thereof, shall file and furnish witness statements at a later date before the trial” which means it used the period of the delay to prepare for the suit and to obtain the witness statements it required. Further that the Appellant had not filed any witness statements as at 6 th March 2024.
The Respondent submitted that it had also filed a Notice of Preliminary Objection dated 21 st August 2024 under the provisions of Order 9 Rule 9 of the Civil Procedure Rules, in response to the Notice of Change dated 8 th July 2024 filed by the firm of Maina Gathara Advocates and in objecting to the filing of the Replying Affidavits of Eunice Ngea and Paul Maina Gathara Advocate both dated 20 th August 2024 filed by the said firm of Advocates.
The preliminary objection raised was to the effect that the firm of Maina Gathara Advocates was not properly on record for the Appellant and therefore not competent to file the Replying Affidavits or any pleadings on behalf of the Appellant, rendering its Notice of Change dated 8 th July 2024 and the Replying Affidavits of Eunice Ngea and Paul Maina Gathara Advocate both dated 20 th August 2024 fatally defective ab initio, which should have been struck out from the court record.
That the firm of Maina Gathara Advocates could not therefore file a Notice of Change of Advocates from Shapley Barrer & Co. Advocates who were on record for the Appellant/Defendant when the suit herein was dismissed on the 6 th March 2024, until and unless they obtained leave of this Honourable Court to come on record in accordance with the provisions of Order 9 Rule 9 of the Civil Procedure Rules, which Court Order they failed to obtain.
ANALYSIS AND DETERMINATION
This whole appeal turns on whether the trial court properly exercised its discretion in reinstating the respondent’s suit which was dismissed for want of prosecution on 6 th March 2024.
It is well settled that an appellate court will not lightly interfere with the trial court’s exercise of discretion save where it is demonstrated that the trial court acted on wrong principles, misapprehended the facts, considered irrelevant matters, omitted relevant considerations or reached an unjustified conclusion. This is buttressed by the locus classicus case of Mbogo & Another –v- Shah (1968) EA 93 as stated in Crecentia Veronica Atieno –v- Samuel Oloo Okoth (2017) eKLR where it was held that:
“I think it is well settled that this court will not interfere with the exercise of discretion by the inferior court unless it is satisfied that the decision is clearly wrong because it has misdirected itself or because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters which it should have taken into account or consideration and in doing so arrived at a wrong conclusion.”
This being a first appeal, as a first appellate court, it is my duty to subject the whole of the evidence and the record to a fresh and exhaustive scrutiny and make my own conclusion whether the trial court properly exercised its discretion in reinstating the dismissed suit.
From a ruling of the trial court dated 6 th March 2024, the court appeared to have proceeded on the premise that the matter was listed for notice to show cause why the suit should not be dismissed for want of prosecution under Order 17 Rule 2(1) of the Civil Procedure Rules. In fact, the suit was dismissed for want of prosecution under Order 17 Rule 2(1) of the Civil Procedure Rules.
Order 17 Rule 2(1) of the Civil Procedure Rules provides as follows:
“In any suit in which no application has been made or step taken by either party for one year, the court may give notice in writing to the parties to show cause why the suit should not be dismissed, and if cause is not shown to its satisfaction, may dismiss the suit . ”
A dismissal of a suit order under 17 rule 2(1) of the civil Procedure Rules must therefore be preceded by a notice to the parties to show cause why the suit should not be dismissed for want of prosecution. Only if the parties, upon receipt of the notice fail to show cause to the satisfaction of the court should the suit be dismissed for want of prosecution.
The court record show that the suit had been fixed for mention. Unfortunately, none of the parties appeared. The respondent’s counsel, in the affidavit in support of his application to reinstate the suit, explained that due to an inadvertent technical hitch, it failed to log into the court session in time and only did so after the matter was dealt with.
Dismissal of a suit without hearing the parties is a draconian measure and must not be done casually particularly where a suit has not been fixed for hearing. Had the suit been fixed for hearing and both parties had notice of the hearing date, this would have been a perfect case to dismiss a suit for want of attendance and/or prosecution.
In the case of Kimata –v- Maloba & Another (2022) KECA 1114 (KLR) 7.10.2022 (Judgment) the court of appeal held:
“It seems to me strange that the suit was dismissed during a mention, a session that is not a hearing per se, but an opportunity for the court to give directions to the parties on the steps to take before hearing. It must be understood that courts do not exist merely for purposes of instilling discipline. We exist to do justice, not to crack the whip and wave the red card at every seeming default or infraction. I can do no better than associate myself with the sentiments of Apaloo JA in Philip Keiptoo Chemwolo & another vs. Augustine Kubende [1986] eKLR to wit: I think a distinguished equity judge has said: “Blunders will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case determined on its merits.”
It is therefore my finding that the dismissal of the suit on the date fixed for mention was irregular and did not advance the overriding objective in the administration of justice. The right to a hearing is a well-protected right in the constitution. The court must always guard the right to be heard as it is the core foundation and heart of the right to a fair hearing.
The appellant’s plea that the delay in a determination of the suit compromised its right to fair hearing is not entirely accurate. The appellant had not filed witness statement or list of documents as at the time the suit was dismissed. The appellant had never moved the court to have the suit fixed for hearing. The appellant on its part appeared to have ‘gone to sleep’ and only ‘woke up from its slumber’ when served with the application to reinstate the suit. I find that this is a classic case of a defendant seeking to rely on its own indolence to reap advantage.
As I conclude, my attention has been drawn to a notice of preliminary objection dated 21.8.2024 challenging the notice of change of advocate dated 8.7.2024 by the appellant’s advocate. Had the preliminary objection succeeded, the entire appeal herein would have been rendered incompetent. I do not wish to delve further into the preliminary objection as it was never dealt with on merit.
The upshot of the foregoing is that the right to be heard is at the cornerstone of the rule of law. Courts of law exists to decide on the rights of parties on merit. To deny a party a right to be heard should be the last resort of a court of law. The learned magistrate cannot be faulted for his finding that the respondent was entitled to its day in court.
The result is that the appeal is without merit. It is dismissed with no order as to costs.
DATED, SIGNED AND DELIVERED THIS 22 ND SEPTEMBER 2026
D.O. ONYANGO
JUDGE
9