https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11346

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT THIKA** **CIVIL APPEAL NO. E359 OF 2024** **GEORGE HENRY LUYAI AKOTO……….......................APPELLANT** **VERSUS** **VINTZ PLASTICS LIMITED………....…..………………RESPONDENT** **(Being an Appeal from the Ruling of Hon. C. K. Kisiangani (PM) delivered on 23rd November 2023 in Ruiru SPMCC No. E437 of 2022)** **JUDGMENT** **Introduction** 1. This appeal arises from the ruling in Ruiru Principal Magistrate’s case SPMCC No. E437 of 2022 wherein the trial court dismissed the application dated **26th July 2023** seeking for orders of reinstatement of the suit to be heard on merits. 2. Dissatisfied with the court’s decision, the appellant lodged this appeal citing 6 grounds of appeal when I have summarized as follows: - 3. The learned trial magistrate erred in law and in fact in dismissing the appellant’s case without properly considering the evidence tendered by him. 4. The learned trial magistrate erred in law and in fact by failing to appreciate the legal principles applicable to the case leading to an unjust decision and prematurely dismissing the suit for want of prosecution. 5. The appellant put in written submissions to dispose of the appeal. **Appellant’s Submissions** 1. The appellant identified three issues for determination as follows; a) *whether the dismissal of the suit complied with the law and rules of natural justice;* b) *whether the trial magistrate exercised judicial discretion properly in declining to reinstate the suit and*, c)*whether the appellant has demonstrated sufficient cause to justify* *reinstatement.* 1. On the first issue, the appellant submitted that the learned trial magistrate erred in law and in fact by dismissing the reinstatement application without properly evaluating the evidence, pleadings and legal arguments presented. He had filed his pleadings and duly served the respondent who had yet entered appearance. Further, the mention date of 9th January 2023 which led to the dismissal, was never served upon him. The appellant cited the case of **Ivita vs Kyumbu [1984] KLR 441** and submitted that the trial magistrate did not apply the test herein of whether the *delay is prolonged, inexcusable and whether justice can still be done despite the delay*. Thus, the failure to consider the relevant factors and the evidence tendered was a violation of the duty of the judicial officer to give reasons for her decision and to consider all the material placed before her. 2. On the second issue, the appellant argued that the learned trial magistrate misapprehended the legal principles governing dismissal of suits and reinstatement provided in **Order 17 Rule 2 of the Civil Procedure Rules** which requires a notice to show cause to be issued to the parties, which was not the case herein. Whilst relying on the case of **Ngue vs National Transport & Safety Authority (Appeal 14 of 2016) [2016] KETLABT 3 (KLR)**, the appellant argued that proceedings undertaken without notifying affected parties offend the rules of natural justice and are null and void. Further, the learned magistrate erred by holding that the dismissal was justified on grounds of want of prosecution yet the suit had been at the stage of pleadings and no inordinate delay had elapsed. 3. On the third issue, the appellant argued that he cited binding and persuasive authorities on reinstatement of dismissed suits including **Lee F. Muthoga vs Habib Zurich Finance (K) Limited & Another Civil Application No. Nairobi 236 of 2009** and **Wachira Karani vs Bildad Wachira Civil Suit No. 101 of 2011 (2016) eKLR** but the learned magistrate failed to address the said authorities or distinguish them. Thus, by ignoring the said submissions, the court abdicated its judicial duty and arrived at a decision not anchored in law, thereby falling into error. 4. The appellant asserted that the dismissal of his case and refusal to reinstate it closed the doors of justice against him without a hearing on the merits contrary to Articles 50(1) and 159(2)(d) of the Constitution. Reliance was further placed in the case of **Mwangi s. Kimeyi vs Attorney General & Another [2014] eKLR** where the court held that dismissal of a suit for want of prosecution should be the last resort, only exercised where the delay is *inordinate*, *inexcusable* and *prejudicial to the other party*. Similar reliance was placed in the case of **Nicholas Kiptoo arap Korir Salat vs IEBC & 7 Others [2014] eKLR** which underscored that procedural rules are handmaidens of justice not mistresses of justice and the courts should lean towards substantive justice. The appellant submitted that he has consistently shown his desire to prosecute the suit and the respondent has not demonstrated any prejudice that cannot be compensated by costs. **Analysis and Determination** 1. The main issue for determination is whether the appeal has merit. 2. Being a first Appeal, the court relies on a number of principles as set out in **Selle and Another vs Associated Motor Boat Company Ltd & Others [1968] 1EA 123:** **“… this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take into account of particular circumstances or probabilities materially to estimate the evidence.”** 1. In **Gitobu Imanyara & 2 Others vs Attorney General [2016] eKLR** the Court of Appeal stated that:- **An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.** 1. From the above cases, the appropriate standard of review to be established can be stated in three complementary principles:- 2. That on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions; 3. That in reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before it; and 4. That it is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time. **Whether the appeal has merit.** 1. The appellant instituted the suit in the lower court vide plaint filed on 20th July 2022 which was received in court on 27th July 2022. On 10th November 2022, the court administrator wrote an email to the appellant’s counsel vide email address info@christineoraro.co.ke notifying them that there was no evidence of service of summons and that the matter was scheduled for mention on 1st December 2022 at 8.50 am. The court administrator proceeded to request the appellant’s counsel to file an affidavit of service in the event that service had been effected and then proceeded to give the link of the court. When the matter came up for mention in court on 1st December 2022, none of the parties herein attended court. The court proceeded to schedule the matter for dismissal on 9th January 2023 and a link was sent to the appellant’s counsel vide the same email address. 2. On 9th January 2023, there was no appearance by any of the parties and the court proceeded to dismiss the suit for want of prosecution. The learned magistrate observed that the plaintiff had lost interest in the matter and there was no evidence of service of summons on the defendant. Thus, the continued pendency of the suit was contrary to Section 1A and 1B of the Civil Procedure rules. 3. Notably, the appellant’s counsel has not denied that the email provided is theirs. Furthermore, the said email address has been indicated in all the pleadings filed by the appellant on 27th July 2022.Additionally, the appellant’s counsel used the same email address to serve the respondent with the application dated 26th July 2023 and the mention notice. Therefore, the appellant’s counsel cannot deny that he did not know about the notices. 4. On further perusal of the record, the appellant served the respondent with the summons to enter appearance and the pleadings on 23rd November 2023, more than 12 months since the summons were issued as they were extracted on 27th July 2022. 5. That was a period beyond the validity of the summons as order 5 Rule 2 provides: ***Duration and renewal of summons [Order 5, rule 2]*** ***(1)A summons (other than a concurrent summons) shall be valid in the first instance for twelve months beginning with the date of its issue and a concurrent summons shall be valid in the first instance for the period of validity of the original summons which is unexpired at the date of issue of the concurrent summons.*** 1. Consequently, the appellant served expired summons upon the Respondent. 2. Moreover, for the Court to exercise its discretion, it ought to have been satisfied that the reason for non-appearance was justified or excusable. The appellant’s advocates who were in the conduct of matter did not bother to swear an affidavit providing an explanation as to why despite being aware that the case was coming up, they did not appear on the on the two occasions the matter was fixed by the by the Court. Instead, the instant application is supported by the affidavit of the claims manager, Kenindia Assurance Company. The said company is not even a party in the matter. 3. Article 159 of the Constitution spells out the guiding principles for the exercise of judicial authority, and in particular, Article 159 (2) (b) provides that justice shall not be delayed. This constitutional requirement is reinforced by **Section 1A and 1B of the Civil Procedure Act** which provides for an efficient and timely disposal of proceedings as follows: 4. **The overriding objective of this Act and the rules made thereunder is to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act.** 5. **The Court shall, in the exercise of its powers under this act or the interpretation of any of its provisions, seek to give effect to the overriding objective specified in subsection (1).** 6. ***A party to civil proceedings or an advocate for such a party is under a duty to assist the court to further the overriding objective of the Act and, to that effect, to participate in the processes of the court and to comply with the directions and orders of the court.*** **For the purpose of furthering the overriding objective specified in Section 1A, the Court shall handle all matters presented before it for the purpose of attaining the following aims-** 1. **The just determination of the proceedings;** 2. **The efficient disposal of the business of the court;** 3. ***The efficient use of the available judicial and administrative resources;*** 4. ***The timely disposal of the proceedings, and all other proceedings in the Court at a cost affordable by the respective parties;* and** 5. **The use of suitable technology.** 6. Reinstating a suit is the discretion of a court which ought to be exercised judiciously as was held in the case of **Shah vs Mbogo & Another (1967) EA 116** where the court stated: **The discretion is intended so as to be exercised to avoid injustice or hardship resulting from inadvertence or excusable mistake or error but is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the course of justice.** 1. The rationale behind dismissal of suits was explained by the Court in **In *Olumbe v Obanyi (Civil Appeal E014 of 2024) [2025] KEHC 5386 (KLR) (30 April 2025) (Judgment),*** as follows: “***The justification behind the remedy, of dismissal of suits for want of prosecution, is that litigation must be expedited and concluded by the parties. There can be no justice in filing a cause in court, and then leave it parked there, unprosecuted, hanging over the head of the other party like the famed sword of Damocles. Dismissals help in clearing backlogs in court, created by parties who lack appetite to prosecute their cases. Pendency of unmoving cases create a logjam, which generates a crisis of public mistrust and lack of confidence in the Judiciary. Dismissals reduce the ever-increasing caseloads, and the backlogs, caused by stale suits clogging the judicial system.”*** 1. The appellant filed the suit before the lower court on 27/7/22 when he was also issued with summons which he did not serve until 23rd November 2023, more than 12 months later. This was past the validity period of the summons. Further, the Court made effort to inform the appellant advocate every time the matter was scheduled and this fact is not denied yet, there is no reason why the notices by the court were ignored by the appellants advocates who failed to comply with the court directions, did not appear on those dates and never bothered to provide any explanation even after the application was filed, which again, was not filed by a party in those proceedings. 2. Moreover, the Application for the reinstatement cannot also be said to have been brought without undue delay. The lower court dismissed the matter on 9th January 2023. It took the appellant approximately another seven months to file an application seeking reinstatement of the suit. 3. Upon holistic evaluation of the circumstances of this case, this court is of the considered view that appellant did not provide sufficient reasons for non-appearance and disregard of the clear directions of the Court in regard to suit he himself instituted. The appellant is not a diligent litigant who was genuinely interested in expeditious disposal of the suit. 4. Although a hearing on merits embodies the fundamental constitutional principle of the right to a fair hearing, it must be balanced against the conduct of a party seeking to invoke it. The Supreme Court in **Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR)** guided as follows: ***“74. Extension of time being a creature of equity, one can only enjoy it if he acts equitably: he who seeks equity must do equity. Hence, one has to lay a basis that he was not at fault so as to let time to lapse. Extension of time is not a right of a litigant against a court, but a discretionary power of the courts which litigants have to lay a basis where they seek courts to grant it.”*** 1. The Court finds that the trial court properly applied the relevant principles in exercising its discretion in declining the application by the appellant for the reinstatement of the dismissed suit. It upholds the trial court’s findings that the appellant failed to show sufficient cause to warrant the exercise of its discretion to set aside the order of dismissal. 2. The upshot is that this Appeal lacks merit and is hereby dismissed. ***Dated, signed and delivered at Thika this 23rd July, 2026.*** **..............................................** **L. N. MUGAMBI** **JUDGE**