https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/705

 **REPUBLIC OF KENYA** **IN THE SENIOR PRINCIPAL MAGISTRATE'S COURT AT MAKINDU** **CIVIL CASE NO 517 OF 2015** **RICHARD KASANGA NDILANGU….…………………...................................PLAINTIFF/APPLICANT** **VERSUS** **CHINA ROAD & BRIDGE CORPORATION (K) ……………..................DEFENDANT/RESPONDENT** **RULING** **THE APPLICATION** The Plaintiff herein moved the court by way of a Notice of motion pursuant several provisions of law. The application is dated 2/5/2025 and was filed on 8/5/2025. The application seeks the following orders: 1. That the Honourable court be pleased to set aside orders together with all consequential orders entered on 14th October 2022 dismissing the suit for want of prosecution; 2. The plaintiff’s suit be reinstated before this Honourable court and the same be heard on its merits; 3. The costs of the application be provided for. The application is supported by the affidavit sworn by counsel for the applicant and is premised on the following general grounds: 1. The matter was instituted prior to the Supreme Court decision; 2. The suit was held in abeyance pending further directions after the ruling of the Supreme Court; 3. The plaintiff was never served with a notice to show cause before the matter was dismissed; 4. Practice directions have been issued directing that the matter proceeds to conclusion; 5. Unless the order is set aside, the plaintiff will suffer loss; 6. The plaintiff has come to court within a reasonable period after the issuance of the practice directions; 7. It is in the interest of justice that the said order be reviewed and/or set aside and the suit be reinstated for hearing on merits. In the affidavit in support of the application, counsel for the applicant reiterated the grounds appearing on the face of the application. **THE RESPONSE** The defendant opposed the application by filing a Replying affidavit sworn by counsel for the defendant/respondent. Counsel deposed that the Practice directions by the Honourable Chief Justice do not affect this matter as it was not pending on 28/4/2023 when the directions were issued. That reinstatement of the suit will cause great injustice and prejudice to the defendant and its insurer. Counsel deposed that the dismissal was done three years ago and that they raised their fee note which was paid and they closed their file. That the client-Advocate relationship ceased upon payment and closure of their file. Counsel further deposed that if the application is allowed, the defendant will have to issue fresh instructions, pay fresh fees and locate long lost witnesses and documents in support of their case. That the project was completed and many staff including managers were let go. The defence argued that the plaintiff had not given a good reason as to why he did not attend court in time after the matter was dismissed. That the application has been made with undue delay thus occasioning prejudice to the defendant. **MAIN ISSUES FOR DETERMINATION** Having considered the application and the response by the defendant, I find that the main issue for determination is whether there are sufficient grounds for the court to reinstate the suit. **THE PLAINTIFF'S/APPLICANT’S SUBMISSIONS** The applicant filed written submissions. He reiterated the grounds in support of the application. The applicant submitted that he was not given a chance to be heard before the suit was dismissed. That the plaintiff was not served with a notice to show cause before the order of dismissal was made. The plaintiff urged the court to allow the application. **SUBMISSIONS BY THE DEFENDANT/RESPONDENT** The defendant/respondent did not file any submissions but relied on the Replying affidavit. **ANALYSIS AND DETERMINATION** **The legal provisions** Section 1A of the Civil Procedure Act provides as follows: ***"(1) The overriding objective of this Act and the rules made hereunder is to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act.*** ***(2) 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).*** ***(3) 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".*** Section 1B provides as thus: ***"(1) 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— (a) the just determination of the proceedings;*** ***(b) the efficient disposal of the business of the Court;*** ***(c) the efficient use of the available judicial and administrative resources;*** ***(d) the timely disposal of the proceedings, and all other proceedings in the Court, at a cost affordable by the respective parties; and*** ***(e) the use of suitable technology".*** Section 3A provides: ***“Nothing in this Act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court".*** **Analysis** I have considered the application, the response by the defendant as well as the applicant’s submissions. I have perused the record. There is a copy of a notice to show cause dated 7/9/2022 issued under Order 17 rule 2 of the Civil Procedure Rules. The notice required the plaintiff to show cause why the suit should not be dismissed for want of prosecution. The plaintiff argues that he was not served. There is no evidence to show that the plaintiff was served with the notice. In the circumstances, I have no reason to doubt that the plaintiff was not aware of the proceedings of 14/10/2022 that led to the dismissal of the suit. Furthermore, despite the notice to show cause being on the issue of want of prosecution, the court, on 14/10/2022 did not dismiss the suit for want of prosecution but for want of jurisdiction. The proceedings of 14/10/2022 were at variance with the notice that was issued for such proceedings. I am aware of the history of claims based on work injuries under the Work Injury Benefits Act. The matter was in court on 22/1/2019 and the same was stayed indefinitely by the court “awaiting directions.” I am also aware that there was pending litigation before the superior courts. The final decision was made by the Supreme Court on 3/12/2019 in the case of ***Law Society of Kenya v Attorney General & another (Petition 4 of 2019) [2019] KESC 16 (KLR).*** After the Supreme Court rendered its decision, there was still uncertainty with respect to matters which had been filed after the enactment of the Work Injury Benefits Act and after the High Court had declared provisions of the Work Injury Benefits Act unconstitutional on 4/3/2009 and before the Court of Appeal rendered its decision on 17/11/2017. The Court of Appeal and the Supreme Court pointed out the issue of legitimate expectation. It is for this reason that the Hon Chief Justice gave practice directions vide gazette notice number 5476 dated 24/4/2023. The directions by the Hon Chief Justice stipulate that all claims for compensation for work related injuries and diseases filed in the Magistrates court after the commencement of WIBA and before the Supreme Court decision should continue before the court. Given the circumstances, the plaintiff could not be expected to move the court owing to the uncertainty and before the directions were given. The plaintiff did not state when he became aware that the matter had been dismissed. Counsel for the plaintiff deposed in his affidavit that he became aware of the dismissal upon following payment with the defendant and that is when he was informed that the suit had been dismissed. Counsel did not disclose when he was so informed. No reasons have been given to explain why the plaintiff did not follow up the matter soon after the Honourable Chief Justice issued practice directions way back in April, 2023. The instant application was filed after two years from the time the directions were issued. No explanation has been given to explain the delay. Under Order 17 rule 2(5) of the Civil Procedure Rules, a suit stands dismissed for want of prosecution if no action is taken for a period of two years. That is an indication that delay for two years is inordinate. The application was filed after close to three years from the date of dismissal. In as much as there were procedural errors on the part of the court, there has been inordinate and unexplained delay on the part of the plaintiff. In the case of ***Edward Juma Malovi v Peter Ndirangu [2006] eKLR,*** it was held that the court has unfettered discretion to set aside a dismissal order and further, that such discretion ought to be exercised judiciously to avoid injustice. In the case of ***Patel v EA Cargo Handling Services Ltd [1974] EA 75*** the Court of Appeal per Duffus President of the Court stated thus: ***“There are no limits or restrictions on the judge’s discretion except that if he does vary the judgment he does so on such terms as may be just. The main concern of the court is to do justice to the parties and the court will not impose conditions on itself or fetter the wide discretion given it by the rules……….the principle obviously is that unless and until the Court has pronounced judgment upon the merits or by consent, it is to have power to revoke the expression of its coercive power where that has obtained only by a failure to follow any of the rules of procedure.”*** In ***Shah v Mbogo [1967] E.A 116*** at 123, Harris J. held as follows; ***"I have carefully considered, in relation to the present application, the principles governing the exercise of the court's discretion to set aside a judgement obtained ex parte. This discretion is intended to be exercised to avoid injustice or hardship resulting from accident, 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."*** In the case of ***Smith v Middleton [1972] SC 30***, it was held that discretionary power should be exercised judicially and in a selective and discriminatory manner, not arbitrarily and idiosyncratically. The suit had been in court for over seven (7) years before it was dismissed. There has been delay in prosecuting the suit. No witness has ever testified herein. It is the plaintiff who brought the defendant to court and who seeks a remedy from the court. The plaintiff therefore bears the main burden of bringing the suit to conclusion. My view is buttressed by the finding in the case of ***Mukisa Biscuit Manufacturing Company Limited v West End Distributors Limited [1969] EA 696***, where it was held that it was the duty of the plaintiff to bring his suit to early trial and he cannot absolve himself of this primary duty by saying that the defendant consented to the delay. Similarly, in the case of ***Mobile Kitale Services v Mobil Oil Kenya Limited & Another***, Warsame J (as he then was), while citing the case of ***Nilani v Patel [1969] EA 341***, observed thus: ***"....it is only too trite to say that as in every civil suit, it is the plaintiff who is in pursuit of a remedy, that he should take all the necessary steps at his disposal to achieve an expeditious determination of his claim. He should not be guilty of laches. On the other hand, when he fails to bring his claim to a speedy conclusion, it is my view that a defendant ought to invoke the process of the court towards that end as soon as is convenient by either applying for its dismissal or setting down the suit for hearing........Delay in these cases is much to be deplored. It is the duty of the plaintiff's advisor to get on with the case. Every year that passes prejudices a fair trial................."*** There has been inordinate delay in filing the application. In the case of ***Argan Wekesa Okumu v Dima college Limited & 2 Others [2015] eKLR***, Mabeya J held that when delay has been established, unless it is well explained, it becomes inexcusable. No explanation has been given by the plaintiff to explain the delay. It is not even clear when the plaintiff became aware of the dismissal. There is no affidavit by the plaintiff himself to demonstrate that he is willing to prosecute the matter. Section 1A of the Civil Procedure Act provides that the overriding objective of the Act and the rules made thereunder is to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act and that the Court shall, in the exercise of its powers under the Act or the interpretation of any of its provisions, seek to give effect to the overriding objective. It is also provided that 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. Section 1B of the Civil Procedure Act enjoins the court to ensure timely disposal of proceedings, among other things. The plaintiff has, without reasonable cause or excuse, failed to assist the court to further the overriding objective of the Act. My view is that a party in default cannot claim as of right, but must earn the court's succour. It does not matter that the application is unopposed. The same applies to the overriding objective captured under sections 1A and 1B of the Civil Procedure Act. A party who decides to sit on their rights and delay or derail the due process cannot hide under the guise of "procedural technicality". Expeditious disposal of disputes is key to all cases and is fundamental to the administration of justice. It is a component of substantive justice as opposed to mere procedural technicalities. I would borrow the words of the Court of Appeal in the case of ***John Ongeri Mariaria & 2 Others v Paul Mutundura [2004] 2******EA 163***, wherein the Court observed quite authoritatively that: ***“Legal business can no longer be handled in such sloppy and careless manner. Some clients must learn at their costs that the consequences of careless and leisurely approach to work must fall on their shoulders ….whereas it is true that the court has unfettered discretion, like all judicial discretions, must be exercised upon reason not capriciously or sympathy alone……justice must look both ways as the rules of procedure are meant to regulate administration of justice and they are not meant to assist the indolent.”*** In the case of ***AGGREY O. OBARE v TELKOM KENYA LIMITED [2011] KEHC 2161 (KLR),*** Kimaru J (as he then was) had this to say on the issue of delay: ***“In the present application, although the proceedings were ready on 30th August 2010, (within the period in which the applicant would have lodged the appeal) the applicant did not present the present application to this court until three months later i.e. on 1st December 2010. The applicant did not give a cogent reason for this delay. It is clear that the applicant was indolent. He is guilty of laches. This court cannot exercise its discretion in favour of such indolent litigant. The justice of this case demands that this court declines to exercise its discretion in favour of the applicant”.*** In the case of ***Abigael Barmao v Mwangi Theuri [2013] KEELC 78 (KLR),*** Munyao Sila J (as he then was) held: ***“My view of this application is that the plaintiff has been guilty of laches. If a proper explanation had been provided as to why there has been a delay of more than 4 years, then probably I would have been moved to grant the injunction. But no explanation has been given, and I can only conclude that the plaintiff is guilty of delay. There is no doubt that 4 years before seeking relief is a period that is inordinately too long. I therefore decline to grant the injunction sought but make no orders as to costs. I direct the plaintiff to set down the suit for hearing and the matter to be determined on merits”***. The remedy sought by the plaintiff is founded in equity and one of the maxims of equity is that ***"delay defeats equity".*** In Snell's *Equity*, 30th Edition at p 33 para 3-16 (quoting Lord Camden L.C in ***Smith v Clay (1767) 3 Bro.* *C.C. 639n. at 640n****)* it is asserted that a court of equity: ***"..has always refused its aid to stale demands,* *where a party has slept upon his right and acquiesced for a great length of time. Nothing can call forth* *this court into activity, but conscience, good faith, and reasonable diligence; where these are wanting,* *the court is passive, and does nothing."*** The plaintiff herein is guilty of laches. He has not even explained why he could not move the court in good time. It took the plaintiff about three (3) years to move the court after dismissal. In the case of ***Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR***, the Supreme Court of Kenya held as follows: ***"Time is a crucial component in dispensation of justice, hence the maxim: Justice delayed is justice denied. It is a litigant's legitimate expectation where they seek justice that the same will be dispensed timeously. Hence, the various constitutional and statutory provisions on time frames within which matters have to be heard and determined............. 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".*** The Supreme Court, in the above case, laid down the following underlying principles that a court should consider when exercising its discretion to extend time: 1. 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; 2. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court; 3. Whether the court should exercise the discretion to extend time is a consideration to be made on a case to case basis; 4. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court; 5. Whether there will be any prejudice suffered by the respondent if the extension is granted; 6. Whether the application has been brought without undue delay; and 7. Whether in certain cases like election petitions, public interest should be a consideration for extending time. Given the circumstances of this case, the plaintiff does not meet the threshold that would warrant the court to grant him an extension of time to prosecute his case***.*** I have already pointed out that no good reasons have been given to explain the delay. My understanding of sections 1A, 1B and 3A of the Civil Procedure Act is that the provisions cannot be invoked as a matter of course so as to excuse all and any kind of failing on the part of a party to abide by the requirements of the rules. In my view, the overriding objective was brought to ensure that justice is served to both parties and further, where there is a conflict of the Oxygen Rules Principles with the substantive law, the law ought to be interpreted in such a manner that will ensure the administration of justice. I find nothing in the overriding objective to suggest that the delay herein, which has not been sufficiently explained can be excused. Delay is an anathema to a fair trial which is one of the key fundamental rights provided to all litigants under Article 50 of the Constitution. Furthermore, it would be an abuse of the court process and contrary to the constitutional principles espoused in Article 159 that requires justice to be administered without delay, to allow a party to bring their action after inordinate delay, without any justifiable reason. The application is clearly an afterthought. Our system of justice is adversarial in nature. The court should not be used to aid an indolent party under the tag of “interest of justice”. I think I have said enough to show that the application is untenable. The conduct of the plaintiff as explained above defeats the prayers sought. The plaintiff cannot go into slumber then wake up and expect the court to assist him without even explaining why he was asleep all that time. **DISPOSITION** Consequently, I find that the application dated 2/5/2025 is devoid of merit. I proceed to DISMISS it with costs to the defendant. For avoidance of doubt, the suit stands dismissed. **DATED, SIGNED AND DELIVERED IN OPEN COURT AT MAKINDU THIS 6TH DAY OF AUGUST, 2026.** **Y.A SHIKANDA** **SENIOR PRINCIPAL MAGISTRATE.**