1. The Appellant/ Applicant filed this appeal against the ruling by Hon. G. Sogomo PM, delivered on 28th August, 2023, having been granted leave to appeal out of time in Mombasa HCC Misc. No. E257 of 2023 vide the ruling dated 13th February, 2024. On 27th March, 2024, the Appellant filed the Memorandum of Appeal dated 19th September, 2023, which was 43 days after the leave to appeal out of time was granted.
2. No action was taken until when the Appellant’s counsel on record filed a Chamber Summons dated 21st May, 2024 seeking leave to cease acting, stating that he had lost communication with the Appellant and that the Appellant had issued him with a bouncing cheque which was meant to be his instructions fees. The application having been served upon the Appellant and with no response, and failure to attend court for hearing of the application, the application was allowed as prayed.
3. On 28th October 2024, directions on the appeal were issued and notice was to be issued to the Appellant. On 25th November, 2024, the court was informed that the Appellant was duly served and he had failed to comply with the court’s directions on filing of the Record of Appeal. Pursuant to the directions issued on 28th October 2024 and 25th November 2024, the Appellant was deemed not to be interested in prosecuting his appeal and the appeal was dismissed with costs.
4. Subsequently, the Appellant appointed new Advocates now on record, and filed the Notice of Motion dated 29th November 2024 and a similar application dated 9th December 2024. Pending the hearing and determination of the 2 applications, the Appellant again filed a Notice of Motion dated 30th October, 2026 which was dismissed in limine on 3rd December, 2025.
5. Coming up for ruling are the 2 applications dated 29th November 2024 and 9th December 2024. The same shall be consolidated as they seek similar orders. The Applicant seeks the setting aside of the dismissal orders made 21st May, 2024 and for reinstatement of the appeal, and the time to file the Record of Appeal be extended.
6. In support of the applications, the Applicant deponed that he had instructed his previous advocates to file the appeal, and he was unaware that he had ceased acting. Further, he came to learn that the appeal had been dismissed for want of prosecution. The appellant stated that he was battling a medical condition that caused him to cut communication with his previous advocates. He annexed hospital documents from Premier Hospital dated 24th November, 2024 and 5th August 2024. He states that he desirous of prosecuting his appeal and he had already deposited the bank guarantee of Kshs. 1,000,000/= as ordered by the court on 13th February, 2024.
7. The said applications were opposed by the Respondent and a consolidated Replying Affidavit dated 13th January 2025 and sworn by Rose Juma, an Advocate of the High Court, was filed. It was deponed that despite the Appellant being granted leave to file the appeal out of time on 13th February, 2024, the same was not complied with. Further, the Appellant did not comply with the order to have the Bank Guarantee deposited in court, for reasons that when the Respondent sought to have the Original Bank Guarantee from the Deputy Registrar, High Court Mombasa, they were informed that the Bank Guarantee was not deposited in court. A copy of the correspondence was annexed.
8. It was further deponed that even after the previous advocates for the Appellant ceased to act on his behalf, the Appellant engaged the services of the current advocate and was active in the lower court proceedings in opposing the Advocate/ Client Bill of Costs dated 19th June 2024. A copy of Preliminary Objection dated 3rd September 2024 by the Appellant filed by the current advocates was annexed.
9. The Appellant filed a Further Affidavit dated 13th February, 2015. I have perused the court proceedings that no leave was sought to have the same filed, nor did the counsel for the Respondent, Mr. Nyanje, who appeared in court on 27th February 2025, seek to have the Further Affidavit deemed as properly filed. The same is hereby expunged from the court records.
10. It was directed that the applications be canvassed by way of written submissions. None of the parties complied with the said directive.
Analysis
11. I have considered the two application, Supporting Affidavits and the Replying Affidavit. The issues for determination are: -
(a) Whether the Appellant established sufficient cause to warrant reinstatement of the appeal
(b) Whether reinstatement would occasion prejudice
(c) Who should bear costs
12. The law regarding setting aside dismissal orders and reinstatement of suits is settled. The power is discretionary and must be exercised judicially and not capriciously. In Shah v Mbogo & another [1967] EA 116, the court held that: -
“Applying the principle that the Court's discretion to set aside an ex-parte judgment is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but not to assist a person who has deliberately sought (whether by evasion or otherwise) to obstruct or delay the cause by justice, the motion should be refused.”
13. The record reveals the Appellant delayed in filing of this appeal, and he had to seek leave to file the appeal out of time. The appeal was filed 43 days after leave was granted. No action was taken until when the then advocate for the Appellant filed his application to cease from acting citing lack of communication from the Appellant, and being issued with a bouncing cheque for his instruction fees.
14. The Appellant states that his lack of communication was due to the fact that he was battling a medical condition, depression, and he only came to learn that the appeal had been dismissed after making follow-ups on the matter.
15. While courts are generally reluctant to punish litigants for mistakes of counsel, parties also bear a responsibility to follow up their cases. In Bi-Mach Engineers Limited v James Kahoro Mwangi [2011] KECA 242 (KLR), the court emphasized that: -
“The applicant had a duty to pursue his advocates to find out the position on the litigation but there is no disclosure that the applicant bothered to follow up the matter with his erstwhile advocates. It is not enough simply to accuse the advocate of failure to inform as if there is no duty on the client to pursue his matter. If the advocate was simply guilty of inaction, that is not an excusable mistake which the court may consider with some sympathy. The client has a remedy against such an advocate.”
16. The Appellant benefited from the court's indulgence by being granted leave to appeal out of time. It cannot be ignored that the Appellant was battling a medical condition. However, the application to reinstate the suit was first made on 29th November, 2024. It is on record that the Appellant was active in the lower court proceedings in opposing the Advocate/ Client Bill of Costs by filing the Preliminary Objection dated 3rd September, 2024.
17. By appointing a new advocate, the Appellant must have been aware that his previous advocate had ceased acting on his behalf. Further, this application subject to this ruling was filed over 2 months after the filing of the pleadings in the lower court. Even if the Appellant was to be given the benefit of doubt that he was not aware that his counsel had ceased from acting, and that he was battling a medical condition, there is no excuse as to why no action was taken in this matter by the Appellant during the time he was actively participating in the lower court proceedings. I find the delay in filing the application to reinstate the suit inexcusable.
18. The overriding objective under Sections 1A and 1B of the Civil Procedure Act and Article 159(2)(b) of the Constitution requires courts to facilitate the expeditious disposal of cases. Justice is owed not only to plaintiffs but also to defendants who are entitled to finality in litigation.
19. In Ivita v Kyumbu [1984] KLR 441, the court held that: -
“The test is whether the delay is prolonged and inexcusable, and, if it is, can justice be done despite the delay ... Thus, even if delay is prolonged, if the court is satisfied with the plaintiff’s excuse for the delay, the action will not be dismissed but it will be ordered that it be set down for hearing at the earliest available time.”
20. The history of this matter reveals repeated inactivity despite prior judicial intervention, and failure to adhere to the court’s orders. Reinstating the suit would undermine the principle of finality in litigation and reward persistent indolence.
21. On costs, it has been settled that costs follow the event. This court retains its discretion on whether or not to award the same. The Respondent having been active in this appeal, and the Appellant having failed to comply with the various court orders, I find no reason to deny the Respondent the costs of these applications.
Determination
22. Accordingly, the court makes the following orders;
a. The Notice of Motion applications dated 29th November, 2024 and 9th December, 2024 lack merits and are hereby dismissed.
b. This appeal remains dismissed.
c. The Respondent shall have the costs of the appeal.
Dated and delivered virtually at Mombasa this 6th day of August, 2026
………………………..
HON. F. WANGARI
JUDGE OF THE HIGH COURT
In the presence of: -
Mr. Chalo Onjari Advocate for the Appellant/ Applicant
N/A by the Respondent
Ms. Salwa, Court Assistant
2. No action was taken until when the Appellant’s counsel on record filed a Chamber Summons dated 21st May, 2024 seeking leave to cease acting, stating that he had lost communication with the Appellant and that the Appellant had issued him with a bouncing cheque which was meant to be his instructions fees. The application having been served upon the Appellant and with no response, and failure to attend court for hearing of the application, the application was allowed as prayed.
3. On 28th October 2024, directions on the appeal were issued and notice was to be issued to the Appellant. On 25th November, 2024, the court was informed that the Appellant was duly served and he had failed to comply with the court’s directions on filing of the Record of Appeal. Pursuant to the directions issued on 28th October 2024 and 25th November 2024, the Appellant was deemed not to be interested in prosecuting his appeal and the appeal was dismissed with costs.
4. Subsequently, the Appellant appointed new Advocates now on record, and filed the Notice of Motion dated 29th November 2024 and a similar application dated 9th December 2024. Pending the hearing and determination of the 2 applications, the Appellant again filed a Notice of Motion dated 30th October, 2026 which was dismissed in limine on 3rd December, 2025.
5. Coming up for ruling are the 2 applications dated 29th November 2024 and 9th December 2024. The same shall be consolidated as they seek similar orders. The Applicant seeks the setting aside of the dismissal orders made 21st May, 2024 and for reinstatement of the appeal, and the time to file the Record of Appeal be extended.
6. In support of the applications, the Applicant deponed that he had instructed his previous advocates to file the appeal, and he was unaware that he had ceased acting. Further, he came to learn that the appeal had been dismissed for want of prosecution. The appellant stated that he was battling a medical condition that caused him to cut communication with his previous advocates. He annexed hospital documents from Premier Hospital dated 24th November, 2024 and 5th August 2024. He states that he desirous of prosecuting his appeal and he had already deposited the bank guarantee of Kshs. 1,000,000/= as ordered by the court on 13th February, 2024.
7. The said applications were opposed by the Respondent and a consolidated Replying Affidavit dated 13th January 2025 and sworn by Rose Juma, an Advocate of the High Court, was filed. It was deponed that despite the Appellant being granted leave to file the appeal out of time on 13th February, 2024, the same was not complied with. Further, the Appellant did not comply with the order to have the Bank Guarantee deposited in court, for reasons that when the Respondent sought to have the Original Bank Guarantee from the Deputy Registrar, High Court Mombasa, they were informed that the Bank Guarantee was not deposited in court. A copy of the correspondence was annexed.
8. It was further deponed that even after the previous advocates for the Appellant ceased to act on his behalf, the Appellant engaged the services of the current advocate and was active in the lower court proceedings in opposing the Advocate/ Client Bill of Costs dated 19th June 2024. A copy of Preliminary Objection dated 3rd September 2024 by the Appellant filed by the current advocates was annexed.
9. The Appellant filed a Further Affidavit dated 13th February, 2015. I have perused the court proceedings that no leave was sought to have the same filed, nor did the counsel for the Respondent, Mr. Nyanje, who appeared in court on 27th February 2025, seek to have the Further Affidavit deemed as properly filed. The same is hereby expunged from the court records.
10. It was directed that the applications be canvassed by way of written submissions. None of the parties complied with the said directive.
Analysis
11. I have considered the two application, Supporting Affidavits and the Replying Affidavit. The issues for determination are: -
(a) Whether the Appellant established sufficient cause to warrant reinstatement of the appeal
(b) Whether reinstatement would occasion prejudice
(c) Who should bear costs
12. The law regarding setting aside dismissal orders and reinstatement of suits is settled. The power is discretionary and must be exercised judicially and not capriciously. In Shah v Mbogo & another [1967] EA 116, the court held that: -
“Applying the principle that the Court's discretion to set aside an ex-parte judgment is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but not to assist a person who has deliberately sought (whether by evasion or otherwise) to obstruct or delay the cause by justice, the motion should be refused.”
13. The record reveals the Appellant delayed in filing of this appeal, and he had to seek leave to file the appeal out of time. The appeal was filed 43 days after leave was granted. No action was taken until when the then advocate for the Appellant filed his application to cease from acting citing lack of communication from the Appellant, and being issued with a bouncing cheque for his instruction fees.
14. The Appellant states that his lack of communication was due to the fact that he was battling a medical condition, depression, and he only came to learn that the appeal had been dismissed after making follow-ups on the matter.
15. While courts are generally reluctant to punish litigants for mistakes of counsel, parties also bear a responsibility to follow up their cases. In Bi-Mach Engineers Limited v James Kahoro Mwangi [2011] KECA 242 (KLR), the court emphasized that: -
“The applicant had a duty to pursue his advocates to find out the position on the litigation but there is no disclosure that the applicant bothered to follow up the matter with his erstwhile advocates. It is not enough simply to accuse the advocate of failure to inform as if there is no duty on the client to pursue his matter. If the advocate was simply guilty of inaction, that is not an excusable mistake which the court may consider with some sympathy. The client has a remedy against such an advocate.”
16. The Appellant benefited from the court's indulgence by being granted leave to appeal out of time. It cannot be ignored that the Appellant was battling a medical condition. However, the application to reinstate the suit was first made on 29th November, 2024. It is on record that the Appellant was active in the lower court proceedings in opposing the Advocate/ Client Bill of Costs by filing the Preliminary Objection dated 3rd September, 2024.
17. By appointing a new advocate, the Appellant must have been aware that his previous advocate had ceased acting on his behalf. Further, this application subject to this ruling was filed over 2 months after the filing of the pleadings in the lower court. Even if the Appellant was to be given the benefit of doubt that he was not aware that his counsel had ceased from acting, and that he was battling a medical condition, there is no excuse as to why no action was taken in this matter by the Appellant during the time he was actively participating in the lower court proceedings. I find the delay in filing the application to reinstate the suit inexcusable.
18. The overriding objective under Sections 1A and 1B of the Civil Procedure Act and Article 159(2)(b) of the Constitution requires courts to facilitate the expeditious disposal of cases. Justice is owed not only to plaintiffs but also to defendants who are entitled to finality in litigation.
19. In Ivita v Kyumbu [1984] KLR 441, the court held that: -
“The test is whether the delay is prolonged and inexcusable, and, if it is, can justice be done despite the delay ... Thus, even if delay is prolonged, if the court is satisfied with the plaintiff’s excuse for the delay, the action will not be dismissed but it will be ordered that it be set down for hearing at the earliest available time.”
20. The history of this matter reveals repeated inactivity despite prior judicial intervention, and failure to adhere to the court’s orders. Reinstating the suit would undermine the principle of finality in litigation and reward persistent indolence.
21. On costs, it has been settled that costs follow the event. This court retains its discretion on whether or not to award the same. The Respondent having been active in this appeal, and the Appellant having failed to comply with the various court orders, I find no reason to deny the Respondent the costs of these applications.
Determination
22. Accordingly, the court makes the following orders;
a. The Notice of Motion applications dated 29th November, 2024 and 9th December, 2024 lack merits and are hereby dismissed.
b. This appeal remains dismissed.
c. The Respondent shall have the costs of the appeal.
Dated and delivered virtually at Mombasa this 6th day of August, 2026
………………………..
HON. F. WANGARI
JUDGE OF THE HIGH COURT
In the presence of: -
Mr. Chalo Onjari Advocate for the Appellant/ Applicant
N/A by the Respondent
Ms. Salwa, Court Assistant