https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11302

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISUMU** **CIVIL APPEAL NO. E065 OF 2025** **HOTEL TULIPS (GOT KWACH) ............................................ APPELLANT** * **VERSUS -** **SHEM OCHIENG ONYANGO T/A SHEDOS AGENCY ... RESPONDENT** **R U L I N G** 1. The Notice of Motion dated **24/2/2026** was brought under ***sections 1A, 1B, 3 and 3A of the Civil Procedure Act, Order 12 Rule 7 of the Civil Procedure Rules***. The appellant sought the setting aside of the order of **16/12/2025** that dismissed the appeal and for the appeal to be determined on merit. 2. The application was supported by the affidavit of **Maurice Ouma**, Learned Counsel for the appellant. He deponed that following directions issued by this Court on **21/10/2025** requiring the appellant to file and serve the Record of Appeal within twenty-one (21) days and thereafter file submissions within thirty (30) days, he made every effort to comply with the Court's directions. 3. That the delay in filing the Record of Appeal was occasioned by circumstances beyond his control, particularly the challenges involved in obtaining typed proceedings from the trial court. He further deponed that although the Record of Appeal had been filed by the time the matter came up on **16/12/2025**, he was unable to log into the Court's virtual platform in time owing to technological challenges and only managed to gain access after the matter had already been called out and dismissed. 4. Counsel maintained that the failure to comply with the Court's directions was neither deliberate nor intended to obstruct the course of justice and urged the Court, in the interests of substantive justice, to reinstate the appeal for hearing on its merits. 5. The respondent opposed the application through Grounds of Opposition dated **27/3/2026**. He contended that the application lacked merit and was an abuse of the process of the Court. That the appeal was not dismissed merely because counsel failed to attend Court on **16/12/2025** but rather because the directions of **21/10/2025** by the Court were self-executing whereby the appeal would stand dismissed if the Record of Appeal had not been filed and served within 21 days. 6. According to the respondent, the Record of Appeal was only filed on **15/12/2025**, long after the expiry of the twenty-one days, by which time the appeal had already stood dismissed pursuant to the Court order. The respondent therefore contended that Counsel's absence on **16/12/2025** could not have altered the legal position. 7. The parties filed their respective written submissions in support of their respective positions. 8. The appellant submitted that the Court should exercise its unfettered discretion in favour of reinstatement so that the appeal may be heard on its merit. That the appellant substantially complied with the Court's directions by eventually filing the Record of Appeal and that any delay was attributable to the logistical challenges attendant to obtaining certified proceedings. 9. It was further submitted that the dismissal of the appeal denied the appellant an opportunity to ventilate what is described as a serious appeal challenging the trial court's order permitting liquidation of the decretal amount through monthly instalments of **Kshs.15,000**/-. That the respondent will suffer no prejudice incapable of compensation by an award of costs whereas refusal to reinstate the appeal would occasion grave injustice to the appellant. 10. On the part of the respondent, it was submitted that the application was misconceived because the appeal stood dismissed automatically upon expiry of the twenty-one days granted by the Court. That the appellant neither complied with the Court's timelines nor sought enlargement of time before filing the Record of Appeal outside the period fixed by the Court. 11. It was further submitted that inability to access the virtual platform on **16/12/2025** was immaterial because the appeal already stood dismissed by operation of the self-executing orders of **21/10/2025**. Reliance was placed on **John Nahashon Mwangi v Kenya Finance Bank Limited (In Liquidation) [2015] eKLR** for the proposition that reinstatement is discretionary and can only be granted where sufficient cause has been demonstrated. 12. I have carefully considered the application, the supporting affidavit, the grounds of opposition and the rival submissions. The sole issue falling for determination is whether the applicant has established sufficient cause to warrant the setting aside of the dismissal order and the reinstatement of the appeal. 13. The power of the Court to set aside its orders and reinstate proceedings is discretionary. Like in all discretions, the same must be exercised judiciously, on sound legal principles and upon consideration of the circumstances of each particular case. 14. The discretion to set aside is intended to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake 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. See **Shah v Mbogo & Another [1967] EA 116.** 15. In the same light, there are no limits or restrictions on the Court’s discretion to set aside its orders save that if the discretion is exercised judicially, the main concern of the Court should be to do justice to the parties. See **Patel v East African Cargo Handling Services Ltd [1974] EA 75.** 16. The Supreme Court in **Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR** reiterated that extension of time is not a right but an equitable remedy available only to a deserving party who satisfactorily explains the delay. It was stated thus: - **“*Discretion to extend time was indeed unfettered. It was incumbent upon the applicant to explain the reasons for delay in making the application for extension and whether there were any extenuating circumstances that could enable the court to exercise its discretion in favour of the applicant.*** ***The court ought to consider the following principles in exercising the discretion to extend time for filing an appeal:*** * 1. ***Extension of time was not a right of a party. It was an equitable remedy that was only available to a deserving party at the discretion of the court;*** 2. ***A party who sought extension of time had the burden of laying a basis for it to the satisfaction of the court;*** 3. ***Whether the court ought to exercise the discretion to extend time, was a consideration to be made on a case to case basis;*** 4. ***Whether there was a reasonable reason for the delay, which ought to be explained to the satisfaction of the court;*** 5. ***Whether there would be any prejudice suffered by the respondents if the extension was granted;*** 6. ***Whether the application had been brought without undue delay; and;*** 7. ***Whether in certain cases, like election petitions, public interest ought to be a consideration for extending time*.”** 1. In the present case, the lower court proceedings were ready as at **8/10/2025** that is why the appeal was admitted on that day for directions on **21/10/2025**. On the said **21/10/2025,** the Court directed the appellant to file and serve the Record of Appeal within twenty-one (21) days, **in default of which the appeal would stand dismissed**. The Court further directed the filing and exchange of submissions and fixed the matter for highlighting on **16/12/2025**. 2. The language employed by the Court was plain and unequivocal. The order was self-executing. Its effect was that failure to comply within the stipulated period would automatically terminate the appeal without the necessity of any further judicial intervention. 3. It is not disputed that the Record of Appeal was filed on **15/12/2025**. By then, the twenty-one days granted by the Court had long lapsed. Consequently, by operation of the self-executing order of **21/10/2025**, the appeal already stood dismissed. The subsequent filing of the Record of Appeal, without prior leave of the Court or extension of time, could not revive proceedings that had already been terminated. 4. The applicant attributed the delay to difficulties encountered in obtaining typed proceedings. While this Court appreciates that litigants occasionally experience delays in obtaining certified proceedings, that explanation alone does not satisfactorily answer the question why no application for extension of time was made before the expiry of the twenty-one days or immediately upon realization that compliance within time would not be possible. 5. In any event, there was no explanation as to the effort made to secure the proceedings or when the said proceedings were obtained from the trial court. Without such explanations, it cannot be said that the failure to comply with the self-executing order of **21/10/2025** had been explained. Time lines fixed by either the law or the Court are meant to be adhered to. They are meant to ensure that parties get justice expeditiously in terms of ***Article 159(2) of the Constitution.*** By the time the parties appeared in Court on **16/12/2025,** which was a date for hi-lighting of submissions, there were no submissions on record nor any application for extension of time. 6. The applicant relied on Counsel's inability to log into the Court's virtual platform on **16/12/2025**. In this Court’s respectful view, that explanation does not assist the applicant. The dismissal of the appeal did not result from Counsel's absence on that date. Rather, the appeal already stood dismissed pursuant to the self-executing order occasioned by the appellant's earlier failure to comply with the timelines fixed by the Court. Attendance on **16/12/2025** would therefore not have altered that legal position. Had there been an application on record for extension of time by then, the Court would be entitled to hold that Counsel would have wanted to have it argued on that date. However, there was none by then. 7. A further difficulty with the applicant's case is that although the Record of Appeal was admittedly filed outside the twenty-one (21) days stipulated by the Court, the applicant has not sought an order enlarging time within which to file and serve the Record of Appeal out of time. The application before the Court is limited to seeking the setting aside of the order of dismissal and reinstatement of the appeal. There is no substantive prayer invoking the Court's jurisdiction under ***section 95 of the Civil Procedure Act*** or ***Order 50 Rule 6 of the Civil Procedure Rules*** to extend the time fixed by the Court for compliance with its earlier directions. 8. In the absence of such a prayer, the Court would have no basis upon which to regularize the late filing of the Record of Appeal. Indeed, even if the dismissal order were to be set aside, the Record of Appeal would still remain on record without leave, having been filed outside the timelines prescribed by the Court. The omission to seek extension of time is therefore not a mere procedural lapse but goes to the very competence of the application before the Court. 9. Another factor that militates against the exercise of the discretion The Court further observes that the applicant has not satisfactorily explained the delay in bringing the present application. Whilst the formal orders were made on **16/12/2025,** the present application was not filed until after two months later on **25/2/2026.** That delay was also not explained. The conduct of the applicant was not that of a party who wanted expedited justice, but that of a party who wanted the matter to be delayed as long a possible. 10. Equity aids the vigilant and not the indolent. Having admittedly acquired knowledge of the dismissal on **16/12/2025**, the applicant was expected to move the Court without delay. The unexplained delay in presenting the present application disentitles the applicant to the equitable relief sought and further militates against the exercise of this Court's discretion in his favour. 11. I have also considered the appellant's plea that the Court should invoke ***Article 159(2)(d) of the Constitution*** and determine the appeal on its merits. Undoubtedly, courts are enjoined to administer justice without undue regard to procedural technicalities. However, ***Article 159*** was never intended to sanction disregard of clear and binding court orders. Timelines imposed by the Court are meant to facilitate the efficient and expeditious disposal of litigation and cannot be ignored with impunity. It is the same Article that decrees that justice should not be delayed. 12. I am alive to the constitutional imperative that disputes ought, where possible, to be determined on their merits. Equally, however, litigation must come to an end and parties who obtain court orders are entitled to expect compliance therewith. Courts cannot countenance indolence or disregard of their own orders under the guise of substantive justice. 13. Having considered the totality of the circumstances, I am not persuaded that the applicant has demonstrated sufficient cause to warrant the exercise of this Court's discretion. 14. Accordingly, I find that the Notice of Motion dated **24/2/2026** to be without merit and dismiss the same with costs. It is so ordered. **DATED** and **DELIVERED** at **KISUMU** this **24th** day of J**uly, 2026.** **A. MABEYA, FCI Arb** **JUDGE**