https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12923

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISII** **CIVIL CASE NO. 24 OF 2009** **MILDRED AORI ODUNGA…….................................PLAINTIFF** **-VERSUS-** **KENYA COMMERCIAL BANK (KCB)…................DEFENDANTT** **AND** **BRUCE BOSIRE SILVANO………..……..……INTERESTED PARTY** **RULING** 1. This suit was dismissed om 12th March for want of prosecution. By this Application dated 15th September 2026, the Plaintiff is seeking to reinstate it. The Application is supposedly brought under Order 12 Rule 7 and Order 51 Rule 1 of the Civil Procedure Rules, as well as Sections 1A, 3A, and Section 63 (e) of the Civil Procedure Act (Cap 21 Laws of Kenya). It is supported by the Supporting Affidavit of CHADWICK KERAMA MATHIUS MIGIRO. 2. The reason offered is that the Advocate in conduct of the matter while attending court virtually while in transit, lost his connection court. That his attempts to re-log in were unsuccessful. That it is only later that learnt from the court assistant that the matter had been dismissed for want of prosecution. 3. The Applicant has stated she ought not to suffer for the mistake of her Advocate; and that it will be in the interest of justice that this Court reinstates the suit and set id own for hearing. The Defendant opposed the Application. ***Determination*** 1. I have considered the Application and the grounds supporting it. The power to re-instate a dismissed suit, is a discretionary one. Which discretion although unfettered, ought to be exercised judiciously, and on sufficient reason being shown. Not on humanitarian consideration, or mere sympathy, or mere empathy. Where a party gives an excuse for the error or no-conformity, the same but be backed with credible evidence. 2. The rationale for exercising this discretion was expressed by the court in ***Shah v. Mbogo & Another [1967] E.A 116*.** Where the court stated that the discretion to set aside an ex-parte decision or order although intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error, it is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the cause of justice. 3. In ***Mwangi & Another v. Koske alias Rosemary Chepkorir Kosgei [2026] KEHC 3881 (KLR)*,** the Court of Appeal observed as follows: **“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 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.”** 1. If a suit is dismissed for want of prosecution and in the absence of the Plaintiff, he should if he files an Application for re-instatement file it promptly or as soon as he learns of the dismissal. In other words, he should seek re-instatement without any delay. 2. In this particular case, the Application was brought after almost six months, yet the Plaintiff’s Advocate supposedly learnt of the dismissal soon after, but chose to concentrate on following up with the court assistant instead. All this time, consuming time on needless efforts instead of filing this Application. That is clearly indolence. Equity does not assist the indolent; and neither does a court of law. The law is for the diligent. That delay was not only unreasonable, but also inordinate as the reason given for it is not logically convincing. 3. Consequently, the Application lacks merit, hence it is hereby dismissed. With costs to the Defendant. **DATED and DELIVERED at KISII on this 23rd day of July, 2026.** **PROF (DR) NIXON SIFUNA** **JUDGE**