JUDGMENT
A. INTRODUCTION
1. This appeal arises from the ruling of the Honourable W. C. Keter (Resident Magistrate) delivered on 26th August 2024 in Kisii MCC No. E002 of 2023, by which the trial court dismissed the Appellant’s application seeking the setting aside of ex-parte dismissal orders and reinstatement of the suit for hearing on the merits.
2. The Appellant, being dissatisfied with that decision, lodged the present appeal vide a Memorandum of Appeal dated 19th September 2024, raising ten (10) grounds, principally faulting the learned magistrate for failure to consider material placed before court, improper exercise of discretion, violation of the right to fair hearing, misapprehension of the principles governing reinstatement of suits, and overreliance on procedural technicalities.
3. The appeal was canvassed by way of written submissions. The Appellant filed submissions and authorities in support of the appeal, while the 2nd Respondent opposed the appeal through detailed written submissions and a list of authorities dated 7th October 2025. The 1st Respondent did not file submissions.
B. BACKGROUND OF THE CASE
4. The record shows that the Appellant instituted Kisii MCC No. E002 of 2023 on 3rd January 2023 against the Respondents.
5. The matter was mentioned severally before the trial court. It is not disputed that on several occasions the Appellant or his counsel failed to attend court. Eventually, following issuance of a Notice to Show Cause, the matter was fixed for mention on 14th March 2024, on which date neither the Appellant nor his advocate attended court, leading to dismissal of the suit for want of prosecution and non-attendance.
6. Upon learning of the dismissal, the Appellant filed an application dated 25th March 2024, seeking review, setting aside of the dismissal orders, and reinstatement of the suit. The explanation offered was that counsel inadvertently failed to diarise the mention date.
7. The application was opposed by the 2nd Respondent and was ultimately dismissed in the ruling of 26th August 2024, prompting the present appeal.
D. ROLE OF THE APPELLATE COURT
8. This being a first appeal from exercise of discretion , this Court is guided by the well-established principle that it should not interfere with the exercise of discretion by a trial court unless it is shown that the court misdirected itself, took into account irrelevant factors, failed to consider relevant factors, or arrived at a plainly wrong decision.This principle was restated in elle V Associated Motor Boat Co. Ltd (1968) E.A 123.
C. ISSUES FOR DETERMINATION
8. Having considered the Memorandum of Appeal, the record, and the rival submissions, this Court finds that the appeal turns on the following issues:
i. Whether the learned trial magistrate properly exercised her judicial discretion in dismissing the application for reinstatement;
ii. Whether the learned magistrate failed to consider relevant material or misapprehended the law governing reinstatement of suits dismissed for non-attendance or want of prosecution;
iii. Whether the Appellant’s constitutional right to a fair hearing was violated; and
iv. Whether the appeal is merited and what orders should issue.
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E. ANALYSIS AND DETERMINATION
(i) Whether the discretion was improperly exercised
11. The Appellant contends that the learned magistrate failed to consider his affidavit evidence, submissions, and authorities, and unjustly declined to reinstate the suit.
12. However, the ruling on record expressly states that the trial court considered the application, affidavits, replying affidavit, submissions, and the proceedings. There is nothing on record to suggest that the learned magistrate shut her eyes to any material placed before her.
13. The magistrate took into account the entire conduct of the Appellant from the time of filing the suit, including prolonged inactivity, repeated non-attendance, and the fact that the explanation tendered only related to one mention date and not the long period of dormancy preceding it.
14. The approach taken by the trial court accords with the holding in Ivita v Kyumbu [1984] KLR 441, as cited in Ronald Mackenzie v Damaris Kiarie [2021] eKLR, that the court must consider the reasons for delay, whether the delay is inordinate and inexcusable, and whether justice can still be done.
15. This Court is satisfied that the learned magistrate applied the correct principles and did not exercise her discretion capriciously or on wrong consideration.
(ii) Alleged misapprehension of the law on reinstatement
16. The Appellant heavily relied on the principle that mistakes of counsel should not be visited upon an innocent litigant, citing Belinda Murai & Others v Amis Wainaina (1978).
17. While this principle remains good law, it is equally settled that it is not a universal shield against all forms of indolence. Each case must be considered on its own facts. A litigant is under a duty to demonstrate interest in the prosecution of his case. As was held in Mobile Kitale Service Station v Mobil Oil Kenya Limited & another [2002] eKLR, delay caused by a plaintiff’s laxity cannot be transferred to the defendant.
18. The trial court was therefore entitled to find that the Appellant’s conduct went beyond an isolated mistake and amounted to casual and indifferent prosecution of the suit.
(iii) Inordinate delay
20. The Appellant argued that the delay of approximately three weeks in filing the reinstatement application was not inordinate.
21. While three weeks in isolation may not always be excessive, delay must be assessed contextually. In this case, the learned magistrate considered not only the period after dismissal but the entire history of the suit, which revealed prolonged inactivity spanning over a year.
22. This Court finds no misdirection in the learned magistrate’s conclusion that the delay, viewed holistically, was inexcusable.
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(iv) Alleged violation of Article 50 and bias
23. The Appellant alleged that his right to a fair hearing under Article 50 of the Constitution was violated and that the ruling was biased.Article 50 of the Constitution must be read together with Article 159 (2) (b) which provides that justice shall not be delayed.
24. Allegations of bias are grave and must be supported by cogent evidence. Mere dissatisfaction with a judicial outcome does not amount to bias.
25. The record does not demonstrate that the learned magistrate denied the Appellant an opportunity to be heard. On the contrary, the Appellant was heard through affidavits and submissions. The trial magistrate weighed the right to be heard and the duty of the court to administer justice expediciously and arrived at the decision to dismiss the matter for want of prosecution.
26. This Court therefore finds no basis for the claim of bias or breach of natural justice.
F. CONCLUSION
27. Upon careful re-evaluation of the record, the grounds of appeal, and the submissions by counsel, this Court is not persuaded that the learned trial magistrate misdirected herself in law or fact, or that her decision was plainly wrong.
28. The Appellant has failed to meet the threshold required for this Court to interfere with the exercise of judicial discretion.
G. DISPOSITION
29. In the result, the appeal herein lacks merit and is hereby dismissed in its entirety.
30. The ruling and orders of the trial court delivered on 26th August 2024 in Kisii MCC No. E002 of 2023 are hereby upheld.
31. The costs of this appeal are awarded to the 2nd Respondent, NCBA Bank Kenya PLC.
T.A ODERA
JUDGE
6.2.26
DELIVERED AT KISII THIS ……6TH …… DAY OF ………………FEBRUARY … 2026 AT 11.04 AM , IN THE PRESENCE OF MR MAYEGA FOR 2ND RESPONDENT & CA- MR KIPCHIRCHIR. NO APPEARANCE FOR THE APPELLANT
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A. INTRODUCTION
1. This appeal arises from the ruling of the Honourable W. C. Keter (Resident Magistrate) delivered on 26th August 2024 in Kisii MCC No. E002 of 2023, by which the trial court dismissed the Appellant’s application seeking the setting aside of ex-parte dismissal orders and reinstatement of the suit for hearing on the merits.
2. The Appellant, being dissatisfied with that decision, lodged the present appeal vide a Memorandum of Appeal dated 19th September 2024, raising ten (10) grounds, principally faulting the learned magistrate for failure to consider material placed before court, improper exercise of discretion, violation of the right to fair hearing, misapprehension of the principles governing reinstatement of suits, and overreliance on procedural technicalities.
3. The appeal was canvassed by way of written submissions. The Appellant filed submissions and authorities in support of the appeal, while the 2nd Respondent opposed the appeal through detailed written submissions and a list of authorities dated 7th October 2025. The 1st Respondent did not file submissions.
B. BACKGROUND OF THE CASE
4. The record shows that the Appellant instituted Kisii MCC No. E002 of 2023 on 3rd January 2023 against the Respondents.
5. The matter was mentioned severally before the trial court. It is not disputed that on several occasions the Appellant or his counsel failed to attend court. Eventually, following issuance of a Notice to Show Cause, the matter was fixed for mention on 14th March 2024, on which date neither the Appellant nor his advocate attended court, leading to dismissal of the suit for want of prosecution and non-attendance.
6. Upon learning of the dismissal, the Appellant filed an application dated 25th March 2024, seeking review, setting aside of the dismissal orders, and reinstatement of the suit. The explanation offered was that counsel inadvertently failed to diarise the mention date.
7. The application was opposed by the 2nd Respondent and was ultimately dismissed in the ruling of 26th August 2024, prompting the present appeal.
D. ROLE OF THE APPELLATE COURT
8. This being a first appeal from exercise of discretion , this Court is guided by the well-established principle that it should not interfere with the exercise of discretion by a trial court unless it is shown that the court misdirected itself, took into account irrelevant factors, failed to consider relevant factors, or arrived at a plainly wrong decision.This principle was restated in elle V Associated Motor Boat Co. Ltd (1968) E.A 123.
C. ISSUES FOR DETERMINATION
8. Having considered the Memorandum of Appeal, the record, and the rival submissions, this Court finds that the appeal turns on the following issues:
i. Whether the learned trial magistrate properly exercised her judicial discretion in dismissing the application for reinstatement;
ii. Whether the learned magistrate failed to consider relevant material or misapprehended the law governing reinstatement of suits dismissed for non-attendance or want of prosecution;
iii. Whether the Appellant’s constitutional right to a fair hearing was violated; and
iv. Whether the appeal is merited and what orders should issue.
________________________________________
E. ANALYSIS AND DETERMINATION
(i) Whether the discretion was improperly exercised
11. The Appellant contends that the learned magistrate failed to consider his affidavit evidence, submissions, and authorities, and unjustly declined to reinstate the suit.
12. However, the ruling on record expressly states that the trial court considered the application, affidavits, replying affidavit, submissions, and the proceedings. There is nothing on record to suggest that the learned magistrate shut her eyes to any material placed before her.
13. The magistrate took into account the entire conduct of the Appellant from the time of filing the suit, including prolonged inactivity, repeated non-attendance, and the fact that the explanation tendered only related to one mention date and not the long period of dormancy preceding it.
14. The approach taken by the trial court accords with the holding in Ivita v Kyumbu [1984] KLR 441, as cited in Ronald Mackenzie v Damaris Kiarie [2021] eKLR, that the court must consider the reasons for delay, whether the delay is inordinate and inexcusable, and whether justice can still be done.
15. This Court is satisfied that the learned magistrate applied the correct principles and did not exercise her discretion capriciously or on wrong consideration.
(ii) Alleged misapprehension of the law on reinstatement
16. The Appellant heavily relied on the principle that mistakes of counsel should not be visited upon an innocent litigant, citing Belinda Murai & Others v Amis Wainaina (1978).
17. While this principle remains good law, it is equally settled that it is not a universal shield against all forms of indolence. Each case must be considered on its own facts. A litigant is under a duty to demonstrate interest in the prosecution of his case. As was held in Mobile Kitale Service Station v Mobil Oil Kenya Limited & another [2002] eKLR, delay caused by a plaintiff’s laxity cannot be transferred to the defendant.
18. The trial court was therefore entitled to find that the Appellant’s conduct went beyond an isolated mistake and amounted to casual and indifferent prosecution of the suit.
(iii) Inordinate delay
20. The Appellant argued that the delay of approximately three weeks in filing the reinstatement application was not inordinate.
21. While three weeks in isolation may not always be excessive, delay must be assessed contextually. In this case, the learned magistrate considered not only the period after dismissal but the entire history of the suit, which revealed prolonged inactivity spanning over a year.
22. This Court finds no misdirection in the learned magistrate’s conclusion that the delay, viewed holistically, was inexcusable.
________________________________________
(iv) Alleged violation of Article 50 and bias
23. The Appellant alleged that his right to a fair hearing under Article 50 of the Constitution was violated and that the ruling was biased.Article 50 of the Constitution must be read together with Article 159 (2) (b) which provides that justice shall not be delayed.
24. Allegations of bias are grave and must be supported by cogent evidence. Mere dissatisfaction with a judicial outcome does not amount to bias.
25. The record does not demonstrate that the learned magistrate denied the Appellant an opportunity to be heard. On the contrary, the Appellant was heard through affidavits and submissions. The trial magistrate weighed the right to be heard and the duty of the court to administer justice expediciously and arrived at the decision to dismiss the matter for want of prosecution.
26. This Court therefore finds no basis for the claim of bias or breach of natural justice.
F. CONCLUSION
27. Upon careful re-evaluation of the record, the grounds of appeal, and the submissions by counsel, this Court is not persuaded that the learned trial magistrate misdirected herself in law or fact, or that her decision was plainly wrong.
28. The Appellant has failed to meet the threshold required for this Court to interfere with the exercise of judicial discretion.
G. DISPOSITION
29. In the result, the appeal herein lacks merit and is hereby dismissed in its entirety.
30. The ruling and orders of the trial court delivered on 26th August 2024 in Kisii MCC No. E002 of 2023 are hereby upheld.
31. The costs of this appeal are awarded to the 2nd Respondent, NCBA Bank Kenya PLC.
T.A ODERA
JUDGE
6.2.26
DELIVERED AT KISII THIS ……6TH …… DAY OF ………………FEBRUARY … 2026 AT 11.04 AM , IN THE PRESENCE OF MR MAYEGA FOR 2ND RESPONDENT & CA- MR KIPCHIRCHIR. NO APPEARANCE FOR THE APPELLANT
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