https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6901

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT BUNGOMA HCCA NO. 15 OF 2020 KENYA POWER & LIGHTING COMPANY .................. APPELLANT - VERSUS - MICHAEL MANGENI BARASA .......................... 1ST RESPONDENT FATUMA MOHAMED ABDI ............................. 2ND RESPONDENT R U L I N G 1. This ruling determines the application dated 10/12/2024 in which the applicant seeks reinstatement of its dismissed appeal. 2. The application is said to be brought under Article 50 of the Constitution, section 3A of the Civil Procedure Act and Order 51 rule 15 of the Civil Procedure Rules. It is anchored on the grounds therein, as well as the affidavit of Nicole Kihara, sworn on the same date as the application. 3. The applicant contended that the failure to comply with the court’s orders, issued vide the ruling of 11/2/2021, which mandated that the intended appeal be determined within 90 days, was due to their former advocate and was contrary to their instructions. They further contended that they should HCCA NO. 15 OF 2020-RULING 1 be granted the opportunity to ventilate their appeal, as reinstatement would meet the overriding objectives, and that the respondent would not be prejudiced if the orders sought are not granted. 4. The application was opposed by a reply affidavit sworn on 28/4/2025 by the 1st appellant, in which he deposed that the indolent, lethargic and slothful conduct of the appellant in first disposing of the appeal and secondly attending to the application for dismissal all demonstrate that the instant application was frivolous, vexatious and a waste of the court’s time. 5. That the instant application is an attempt by the applicant to have this court sit in appeal and review the decision of a judge of equal status and jurisdiction, instead of preferring an appeal against the impugned decision. 6. The application was disposed off by way of submissions which I have duly considered. 7. It is trite law that an order for reinstatement is discretionary and not as a right as held by the Court of Appeal in the case of Tabuche v Tinga & 2 others (Civil Appeal E003 of 2022) [2024] KECA 551 (KLR) (24 May 2024) (Judgment). The Court of Appeal stated: - “43. The question as to whether the appellant was entitled to reinstatement of his suit as of right finds answer in Black’s Law Dictionary (Tenth Edition), which defines judicial discretion as: HCCA NO. 15 OF 2020-RULING 2 “The exercise of judgment by a judge or court based on what is fair under the circumstances and guided by the rules and principles of law; a court’s power to act or not act when a litigant is not entitled to demand the act as a matter of right.” [Emphasis added] 44. Reinstatement of a suit dismissed for want of prosecution is a discretionary remedy and not as of right. In any event, each case depends on its own circumstances.” 8. In addition, in the case of Kamau & another v Inspector General of Police & another [2026] KEHC 1038 (KLR) the Court of Appeal outlined the factors a court should consider in determining whether to exercise its discretion and held that: - “11. We have carefully considered this application. To set aside an order for dismissal, the applicant must jump two hurdles. The first is to make the application within 30 days from the date of the order of dismissal. The applicant has successfully jumped that hurdle. The second is that the applicant must present sufficient cause for the failure to attend Court on the appointed date. What will constitute sufficient cause depends on the circumstances of each case. But in our perception, sufficient cause connotes an explanation of such quality or value as would HCCA NO. 15 OF 2020-RULING 3 justify setting aside the order of dismissal; a reason that is adequate in law, showing why the applicant’s request to set aside the order of dismissal should be granted.” 9. In the instant matter, it is necessary to rehash the details of the record. The applicant filed its record of appeal on the 31/5/2020 after which there was no step taken save for a letter dated 7/3/2022 asking for the file to be placed before the judge for directions. When the file was placed before the judge, the appellant was not present and the 1st respondent informed the court that he intended to file an application for dismissal of the appeal. That subsequently, the 1st respondent filed the said application for dismissal and when the parties appeared before court on the 21/7/2022, the applicant’s counsel sought 14 days to put in a response but still failed to do so leading to a dismissal of the appeal on the 13/6/2023. The appellant then waited for a year and half before bringing the instant application. 10. The appellant has apportioned blame for the prosecution of his appeal to its advocate and asserts that it ought not be punished for those mistakes. 11. There are a plethora of cases stating that the sins of the Advocates ought not be visited on them. See the cases of; Pithon Waweru Maina v Thuka Mugiria [1983] eKLR [1983] KECA 117 (KLR) (Potter, Kneller JJA & Chesoni Ag JA) and Patriotic Guards Limited v James Kipchirchir Sambu [2018] eKLR (Waki, Warsame & Makhandia, JJA). However, there is HCCA NO. 15 OF 2020-RULING 4 also the other argument, stated in such cases as Savings & Loan Limited v Susan Wanjiru Muritu Nairobi Milimani HCCC No. 397 of 2002 (Kimaru, J) (unreported) and Duale Mary Anne Gurre v Amina Mohamed Mahamood & another [2014] eKLR (JM Mutungi, J), that the suit belongs to the litigant, who has a duty to pursue prosecution of their case, and to constantly check with their Advocates on the progress of the matter. 12. The appellant has provided no proof of the efforts it made to ensure that its Advocate progressed the matter, after filing it, to pre-trial and eventually to full trial. They only became active after the dismissal. I do not think the appellants did much to aid their case. 13. In my view, the applicant has been indolent, and if a party is deemed “indolent”, the court will dismiss their claim, even if they might have had a valid case, because their inaction has made it inequitable to grant them relief. See Abaye v Julius [2025] KEHC 12147 (KLR). 14. In addition, the law is settled on the reinstatement of a suit or application dismissed by the court. In Shah v Mbogo & another [1967] EA 1116, the court stated as follows: “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 deliberatively sought whether by evasion or HCCA NO. 15 OF 2020-RULING 5 otherwise to obstruct or delay the course of justice” 15. The delay in this matter is prolonged and the prejudice the respondents will suffer if the application is allowed overrides the applicant’s right to be heard. 16. Consequently, the application is dismissed with costs to the 1st respondent. Dated, signed and delivered virtually this 14th Day of May 2026 R. E. OUGO JUDGE In the presence of: Applicant - Absent Mr. Malala For the Respondent Wilkister - C/A HCCA NO. 15 OF 2020-RULING 6