https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11454

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KERUGOYA** **HCCCMISC APPLICATION NO. E056 OF 2023** **FAITH WAMWEA MBOGO............................................................................APPLICANT** **VERSUS** **WINFRED WANJIKU GICHURI................................................................RESPONDENT** **RULING** 1. This is a ruling on an application for dismissal of an application for want of prosecution dated 24/10/2024 and seeking the following specific orders: *“a)* ***THAT*** *the Applicant's Application dated 16th October 2023 be struck out with costs for want of prosecution.* *b)* ***THAT*** *the costs of this application be provided for.”* 1. The grounds of the application were set out in the application as follows: *“1.* ***THAT*** *the Applicant filed an application seeking extension of time to file their Memorandum of Appeal dated 16th October. 2023 from this Honourable Court.* *2.* ***THAT*** *the Applicant was beseeching this Honorable Court to extend the time and grant the applicant time to appeal against the Chief Magistrates Court* *Judgement dated 28th March 2023by Honourable A.K. Ithuku CM. in Kerugoya Chief magistrates Court* ***Succession Cause No. E043 of 2021.*** *3.* ***THAT*** *this Honourable Court directed the Applicant to file and serve their written submissions within fourteen (14) days from 23rd April 2024.* *4.* ***THAT*** *the Applicant has failed and/ or neglected to file and/or serve the written submissions as directed by this Honourable Court within the stipulated time.* *5.* ***THAT*** *the failure to file the written submissions amounts to a lack of interest in hearing and disposal of the inter1ocutory application and subsequent intended appeal and indeed the Applicant has not taken any steps to progress the matter.* *6.* ***THAT*** *it is in the interest of justice and fairness that the application dated 16th October, 2023 by the Applicant therein be dismissed for want of prosecution.* *7.* ***THAT*** *blatant violation of the court's directives should not be countenanced.* *8.* ***THAT*** *Costs be awarded.”* 1. The Respondent applicant did not file a response despite opportunity to do so by way of adjournment given on her request on 19/3/2026, and despite being aware of the hearing date, she did not attend court for the hearing. 2. Counsel for the Respondent urged the Court to dismiss the application for want of prosecution in oral submissions set out in the record of the court of 18/6/2026 as follows: *“****18/6/2026*** *Before: Hon. Justice E. Muriithi* *Court Assistant: Muchuku/Kevin* *Mr. Kurgat for Respondent* *N/A for the Applicant/respondent* *Notice of Motion dated 24th October, 2024.* ***Court:*** *As the applicant was aware of today’s hearing date, having been in court when the date was given, the application shall proceed to hearing in her absence notwithstanding.* ***Mr. Kurgat****: Application dated 16th October, 2023. Applicant seeks extension of time to appeal against Judgement of 28th March, 2023.* *The Respondents take position the Judgment was given on 28th March, 2023. Applicant obtained proceedings. Despite having the proceedings, the applicant waited to file application. No evidence of payments of fees to advocate. There is no explanation for the delay for over 5 months. The explanation does not evened from the delay between receipt of proceedings. It is over 5 months since receipt of proceedings.* *Extension of time is equitable. There is no explanation for the delay. We pray for dismissal of the explanation. We pray for dismissal of the application with no order to costs.* *Dismissal for want of prosecution of application of 24th October, 2024. On 23rd April, 2024, the Court directed that submissions be filed within 14 days. Applicant did not comply. Letter to applicant Faith Wamae to comply. Two years have elapsed since the directions of the court.* *The applicant’s failure to comply with directives demonstrates lack of trust to pursue the matter. Litigation must came to an end.* *Respondents is prejudiced by prolonged delay. We pray that application dated 24th October, 2024 be allowed.* *We do not seek costs.* ***Court:*** *Ruling on 23rd July, 2027 at 2.30p.m.* ***SIGNED*** ***HON. JUSTICE E. MURIITHI*** ***18/6/2026”*** 1. The Court has considered the application and it is noted that the applicant Faith Wamwea Mbogo was present before the Court when on her request, the Court directed that the applicant files a replying affidavit to the application dated 24/10/2024 within 14 days for hearing on 18/6/2026. On the 18/6/2026, the applicant did not attend court and she had not filed a replying affidavit tot eh application for dismissal for want of prosecution of 24/10/2024. 2. The Court having determined that she was aware of the hearing date and directions for filing of the replying affidavit proceeded to hearing the applicant’s absence notwithstanding on the 18/6/2026 as shown in the court record set out in full above. ***Extension of time to file appeal*** 1. This Court has under the Civil Procedure Rules authority to extend time as follows: *“****6. Power to enlarge time [Order 50, rule 6]*** *Where a limited time has been fixed for doing any act or taking any proceedings under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed:* *Provided that the costs of any application to extend such time and of any order made thereon shall be borne by the parties making such application, unless the court orders otherwise.”* 1. In the Supreme Court decision of ***Salat v Independent Electoral and Boundaries Commission & 7 others*** (Application 16 of 2014) [2014] KESC 12 (KLR) (Civ) (4 July 2014) (Ruling)*,* the Court set out the principles for exercise of discretion under its Rule 53 of the Supreme Court Rules in similar terms as the High Court’s Civil Procedure Rules 50 Rule 6 and Rule 4 of the Court of Appeal Rules, to grant of extension of time, as follows: *“84. From the above caselaw, it is clear that the discretion to extend time is indeed unfettered. It is incumbent upon the applicant to explain the reasons for delay in making the application for extension and whether there are any extenuating circumstances that can enable the court to exercise its discretion in favour of the applicant.* *85.This being the first case in which this court is called upon to consider the principles for extension of time, we derive the following as the under-lying principles that a court should consider in exercise of such discretion:* ***Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court; A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court; Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis; Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court; Whether there will be any prejudice suffered by the respondents if the extension is granted; Whether the application has been brought without undue delay; and Whether in certain cases, like election petitions, public interest should be a consideration for extending time.****”* 1. The Court finds that the delay in filing the application for extension of time has not been explained for the five months following after the receipt of certified proceedings of the trial court. 2. Furthermore, the application for dismissal for want of prosecution dated 24/10/2024 has not been responded to for close to two years when the applicant/ respondent was represented by Counsel until Counsel obtained leave to cease acting for her on 6/5/2025. Upon service on person following withdrawal of Counsel the applicant appeared before the Court on 19/3/2026 and was given time to file a replying affidavit to the application dated 24/10/2024 for hearing on 18/6/2026 as aforesaid. ***Want of prosecution*** 1. The Respondent relies on the section 1A and 1B and 63 of the Civil Procedure Act in her pursuit of the order for dismissal for want of prosecution of teh application extension of time to file appeal. Section 1A and 1B of the Act provide for the overriding objectives of the civil process *“to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act.”* Section 63 permits the filing of supplemental proceedings in the ciivl process *“in order to prevent the ends of justice from being defeated....”* 2. The Court has power to dismiss a suit for want of prosecution for no compliance with directions as to hearing as provided in the Order 17 Rule 2(3) of the Civil Procedure Rules as follows: *“(3) The court may dismiss the suit for non-compliance with any direction given under this Order.”* 1. There can be no doubt that in relation to applications, the Court may also dismiss an application for non-compliance with orders and directions of the court as regards the hearing of teh application. 2. The application for extension of time to file appeal was filed on 16/10/2023. The applicant did not take steps to prosecute the applicant and despite directions give for the hearing on 23/4/2024, for the filing of written submissions with 14 days therefrom with a mention for compliance on 9/10/2024, the applicant did not comply with the order the Court despite reminder letter of 13/5/2024 by Counsel for the Respondent calling upon her Counsel to file the submissions, and her counsel had to move the Court for leave to cease acting for her by application dated 30/9/2024 on the ground that the applicant had failed to give the Counsel proper instruction to enable him continue to represent her. ***No reply to application for dismissal for want of prosecution*** 1. The applicant has, despite opportunity to do so given by the adjournment on the 19/3/2026, not responded to the application for dismissal for want of prosecution. ***Prejudice to the Respondent*** 1. In the meantime, as record on the record of 23/4/2024, the applicant continues to enjoy an order for stay of execution pending hearing and determination of the intended appeal. It is clearly prejudicial that a party should continue to enjoy stay orders pending appeal the progression towards the hearing of which the party takes no steps. 2. As the Supreme Court said in ***Salat*** case, supra, ***“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.”*** **ORDERS** 1. Accordingly, for the reasons set out above, the Court finds merit in the Respondent’s application for dismissal for want of prosecution of the applicant’s application for extension of time to file an appeal dated 16/10/2023. 2. There shall be no orders as to costs as the successful Respondent/applicant does not seek costs. 3. File closed. *Order accordingly.* **DATED AND DELIVERED THIS 23RD DAY OF JULY 2026.** **EDWARD M. MURIITHI** **JUDGE** **APPEARANCES:** Mr. Kurgat for the Respondent/Applicant. Ms. Faith Wamwea Mbogo in person.