https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9182

**REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CONSTITUTIONAL AND HUMAN RIGHTS DIVISION PETITION NO. E244 OF 2022** **BETWEEN** **SYLVANNA MPABWANAYO NTARYMIRA......................PETITIONER** **VERSUS** **RICHARD WAWERU NJOROGE….................................RESPONDENT** **RULING** **Introduction** 1. By a Notice of Motion Application dated 3rd July 2024, the Petitioner seeks orders that: 2. ***Spent.*** 3. ***Pending the hearing of this application inter-partes, the Court be pleased to set aside and/or vacate orders issued on 24th July 2023 dismissing the Petition herein and all consequential orders thereof.*** 4. ***The Court be pleased to reinstate the Petition for hearing on merits.*** **Petitioner’s Case** 1. The Application is supported by the Petitioner’s affidavit sworn in support and the grounds on its face. The dispute giving rise to the present proceedings concerns a property known as LR No. 27158 (Original No. 27/14/22, Ridgeways), situated in Nairobi County. The Petitioner contends that she entered into a Sale Agreement with the Respondent for the purchase of the property at Kshs. 70,000,000. According to the Petitioner, the Respondent breached the agreement by failing to pay the agreed purchase price in full. Consequently, on 25th June 2014, she refunded the Respondent a sum of Kshs. 40,000,000, being the amount that had been paid in instalments, and thereafter resumed possession of the property. That notwithstanding, the Petitioner avers that the Respondent subsequently declared a dispute regarding the transaction and matter referred to arbitration. 2. The Petitioner further depones that she had initially instructed the firm of G.B.M. Kariuki & Company Advocates to act on her behalf in these proceedings before later appointing the firm of Kinyanjui Kirimi & Company Advocates. Upon coming on record, her advocate discovered that the Petition had been dismissed on 24th July 2023 owing to non-compliance with court directions when the matter came up for mention. The Petitioner states that upon seeking clarification from her former advocates regarding the circumstances leading to the dismissal, she was informed that the file had been forwarded to the firm of S. Musalia Mwenesi Advocates to be finalized. Therefore, no advocate attended Court on the material date. 3. The Petitioner explains that she resides in Belgium and only returned to Kenya in May 2024 and is when she became aware that the Petition had been dismissed. She maintains that she desires to prosecute the Petition to its logical conclusion. As such, she contends that unless the orders sought are granted, she stands to suffer substantial prejudice. In particular, she alleges that the suit property was fraudulently and unlawfully transferred to the Respondent pursuant to arbitral proceedings, which in her view, were conducted in a manner that was unconstitutional and procedurally unfair. She therefore urges the Court to allow the Application in the interests of justice. **Respondent’s Case** 1. In opposition to the Application, the Respondent filed a Replying Affidavit sworn on 3rd December 2024. The Respondent contends that the Petitioner’s record of non-compliance and failure to prosecute the matter is both apparent and persistent. He depones that when the matter came up for hearing on 17th November 2022, neither the Petitioner nor her advocates were present in Court. On that date, directions were issued requiring the parties to file submissions. The Respondent avers that the said directions, together with the hearing date, were duly served upon the Petitioner’s advocates, G.B.M. Kariuki & Company Advocates, on 30th November 2022. 2. The Respondent further avers that when the matter was scheduled for hearing on 19th January 2023, neither the Petitioner nor her advocates attended Court and there had been no compliance with the directions previously issued. Consequently, the Court issued a notice to show cause and set for hearing on 7th March 2023. Although the Petitioner filed a replying affidavit through her advocates opposing the intended dismissal, neither she nor her advocates attended Court on the date scheduled for hearing of the notice. The Court thereafter fixed a further mention on 24th April 2023 and afforded the Petitioner a final opportunity to comply with the Court’s directions. 3. The Respondent asserts that when the matter came up again on 26th June 2023, the Petitioner had still not complied with the directions on filing of submissions. Instead, Counsel sought 21 days to enable the coming on record of another advocate. The Court indulged the Petitioner once more and granted an extension. When the matter was subsequently mentioned on 24th July 2023 for purposes of confirming compliance, the Petitioner had yet to comply with the Court’s directions. Equally neither she nor her advocate were present in Court. In view of the repeated non-attendance and continued non-compliance, the Court dismissed the Petition with costs. 4. The Respondent further points out that in filing the present Application, the Petitioner has once again changed advocates by filing a Notice of Change of Advocates replacing the firm of S. Musalia Mwenesi Advocates. He argues that the orders sought should not be granted, noting that the Petition was dismissed on 24th July 2023 and this Application only filed in July 2024, 11 months later. Even then, it was argued that, the Petitioner had still not complied with the directions previously issued by the Court. It is his case therefore that the material placed before the Court is insufficient to warrant the exercise this Court’s discretion in the Petitioner’s favour. 5. The Respondent also faults the Petitioner for material non-disclosure. He contends that the Petitioner has failed to disclose that the Petition seeks to challenge a final Arbitral Award issued in favour of the Respondent and published on 13th April 2018. Further, he depones that the Petitioner has a pending Application dated 15th July 2024 in *Nairobi High Court Commercial Miscellaneous Application No. 308 of 2018, Syana Mpabwanayo Ntaryamira v Richard Waweru Njoroge*, in which she similarly seeks the reinstatement of a Chamber Summons application that had sought to set aside the same Final Arbitral Award. The Respondent therefore argues that this Application constitutes an abuse of the Court process since the Petitioner has elected to pursue substantially a similar relief in two separate forums. 6. Finally, the Respondent emphasizes that the Petitioner bears a personal obligation to follow up on the progress of her case notwithstanding her residence outside the country. He contends that no evidence has been presented to demonstrate that the Petitioner made any effort to follow up the matter with her advocates during the period in question. For those reasons, the Respondent urges the Court to find that the Petitioner is undeserving of the orders sought and to dismiss the Application with costs. **Parties Submissions** **Petitioner’s Submissions** 1. In support of the Application, the Petitioner, through Kinyanjui, Kirimi and Company Advocates, filed submissions dated 11th February 2025. Counsel identified the single issue for determination as: *whether the Petitioner had established sufficient grounds to warrant the setting aside of the dismissal orders issued by this Court on 24th July 2023*. 2. Counsel submitted that the dismissal of the Petition without according the Petitioner an opportunity to ventilate her case is contrary to the right to fair administrative action guaranteed under Article 47 of the Constitution and offends the rules of natural justice. It was argued that the Petitioner had been denied the opportunity to present her case and challenge the evidence advanced by the opposing party despite having an arguable case. Counsel further contended that this Petition is distinct from *Milimani HCCOMM Miscellaneous Application No. 308 of 2018* and therefore the Respondent’s assertion that the Petitioner was pursuing similar relief in different forums was unfounded. On that basis, the Court was urged to set aside the dismissal orders in the interests of justice. 3. Reliance was placed in **David Gicheru v Gicheha Farms Limited & Another [2020] eKLR**, where the Court observed that: *“The fundamental duty of the Court is to do justice between the parties. It is in turn, fundamental that to that duty, those parties should each be allowed a proper opportunity to put their cases upon the merits of the matter…”* 1. The Petitioner further relied on **Gerita Nasipondi Bukunya & 2 Others v Attorney General [2019] eKLR, Sangram Singh v Election Tribunal, Koteh, AIR 1955 SC 664** and **Wachira Karani v Bildad Wachira [2016] eKLR**. 2. It was further submitted that the Petitioner ought not to be punished for the mistakes or omissions of her former advocates. Counsel argued that it is a settled principle that a party should not be driven away from the seat of justice without being heard. Reliance was placed in **Martha Wangari Karua v Independent Electoral and Boundaries Commission & Others, Nyeri Civil Appeal No. 1 of 2017** where the Court emphasized the importance of affording parties an opportunity to be heard before adverse orders are made against them. Similar reliance was placed in **Belinda Murai & 9 Others v Amos Wainaina [1978] KLR** and **Philip Chemwolo & Another v Augustine Kubende [1982–88] KLR 103**. 3. Counsel further submitted that this Court enjoys a wide and unfettered discretion under Order 12 Rule 7 of the Civil Procedure Rules to set aside ex parte orders where sufficient cause has been demonstrated. It was argued that the Petitioner had satisfactorily explained the circumstances leading to the dismissal and moreover, that the Respondent would suffer no prejudice as matter will be heard on its merits. To buttress this point, reliance was placed in **Wachira Karani v Bildad Wachira [2016] eKLR**, where the Court held that: *“The meaning of the word "sufficient" is "adequate" or "enough", in as much as may be necessary to answer the purpose intended. Therefore the word "sufficient" embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the view point of a reasonable standard of a curious man.”* **Respondent’s Submissions** 1. Muriu, Mungai & Company Advocates, filed submissions dated 28th February 2025. Counsel reiterated the contents of the replying affidavit and maintained that the Application is an abuse of the Court process. Particularly, it was emphasized that the Petitioner had persistently failed to comply with Court directions and had failed to diligently prosecute the Petition. Consequently, Counsel argued that the Court should not exercise its discretion in the Petitioner’s favour. 2. Reliance was placed on **John Mukuha Mburu v Charles Mwenga Mburu [2019] eKLR**, where the Court held that: *“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 cause of justice.”* 1. Further reliance was placed on **Racheal Njango Mwangi (Suing as Personal Representative of the Estate of Mwangi Kabaiku) v Hannah Wanjiru Kiniti & Another [2021] eKLR**. 2. Counsel argued that a case belongs to the litigant and not the advocate, therefore the Petitioner bore the responsibility of following up on the progress of her case, particularly in light of the availability of virtual court proceedings as held in **Kirwa & Another v Choge & 2 Others [2024] KECA 403 (KLR)**. Counsel noted that no evidence had been placed before the Court to demonstrate that the Petitioner had made any effort to follow up the matter with her advocates prior to seeking the reinstatement of the Petition. On that basis, the Court was urged to dismiss the Application with costs. **Analysis and Determination** 1. After a thorough review of the pleadings and submissions of the parties, it is my considered view that there is only one singular for determination, namely; ***Whether or not the Petitioner’s Application should be allowed.*** 1. The nature of this Application is that is that it invites the Court to reconsider or review and set aside the order made on 24/7/2023 dismissing this Petition. In essence, it calls upon the Court to invoke the powers conferred under Order 12 Rule 7 of the Civil Procedure Rules and the inherent jurisdiction under Sections 1A, 1B and 3A of the Civil Procedure Act, which should be read together **with Rule 3 (8) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules** which preserves the inherent power of this Court as follows: *“(8) Nothing in these rules 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.”* 1. **In *Olumbe v Obanyi (Civil Appeal E014 of 2024) [2025] KEHC 5386 (KLR) (30 April 2025) (Judgment),*** the Court summarised the applicable principle on reinstatement of a suit as follows: ***“The law on reinstatement of suits dismissed is Order 12 Rule 7 of the Civil Procedure Rules, where the court may set aside the dismissal order, on such terms as may be just. The power to reinstate is discretionary.*** ***6.Dismissal of suits for want of prosecution turns largely on the delay in getting the suit prosecuted. The overriding principle is the mantra that there ought to be no delay in the dispensation of justice, based on the maxim that justice delayed is justice denied. The justification behind the remedy, of dismissal of suits for want of prosecution, is that litigation must be expedited and concluded by the parties. There can be no justice in filing a cause in court, and then leave it parked there, unprosecuted, hanging over the head of the other party like the famed sword of Damocles. Dismissals help in clearing backlogs in court, created by parties who lack appetite to prosecute their cases. Pendency of unmoving cases create a logjam, which generates a crisis of public mistrust and lack of confidence in the Judiciary. Dismissals reduce the ever-increasing caseloads, and the backlogs, caused by stale suits clogging the judicial system.*** ***7.The courts have set out the factors that are to be taken into account, in such cases. In Ivita v Kyumbu [1984] KLR 441 (Chesoni, J), the considerations were said to include whether the delay is prolonged and inexcusable; whether justice can be done despite the delay; justice is justice for both sides, and so the positions of both sides must be considered; whether the other side would be prejudiced, by justice not being done by the prolonged delay; and the reasons given for the delay.*** ***8.Whether to reinstate a dismissed suit would call for exercise of discretion in line with Articles 50 and 159 of***[***the Constitution***](https://new.kenyalaw.org/akn/ke/act/2010/constitution)***, and the oxygen principle in sections 1, 1A and 3A of the***[***Civil Procedure Act***](https://new.kenyalaw.org/akn/ke/act/1924/3)***, Cap 21, Laws of Kenya. These were discussed in John Nahashon Mwangi v Kenya Finance Bank Limited (in Liquidation) [2015] eKLR [2015] KEHC 6789 (KLR) (Gikonyo, J), where it was stated that the fundamental principles of justice are enshrined in Article 159 of***[***the Constitution***](https://new.kenyalaw.org/akn/ke/act/2010/constitution)***, coupled with Article 50, with respect to the right to be heard, and to serve substantive justice to all. It was underscored that those principles ought to be factored when considering reinstatement of dismissed suits, bearing in mind that dismissal of suits is draconian.” (Emphasis added)*** 1. Turning to the present Application, the Petitioner in bringing this submitted that she was not aware that the Petition had been dismissed or that her advocate at the time did not attend Court. She added that she lives in Belgium and so was fully reliant on her advocates to pursue the matter on her behalf. She emphasized that she would be highly prejudiced if she is not granted an opportunity to be heard as the dispute involves loss of her property. She thus urged the Court to set aside the dismissal order and reinstate the suit. 2. The Respondent opposed the Petitioner’s Application. The Respondent countered that the Petitioner is responsible for her own case. The Respondent pointed out that the Petitioner had demonstrated persistent failure to attend Court and comply with its directions as evidenced by the Court record. 3. The power of the Court to set aside its own order is discretionary and must be exercised judiciously. As guided by the decision of ***Ivita v Kyumbu [1984] KLR 441 (Chesoni, J),*** the considerations of whether the delay is prolonged and inexcusable; whether justice can be done despite the delay; justice is justice for both sides, and so the positions of both sides must be considered; whether the other side would be prejudiced, by justice not being done by the prolonged delay; and the reasons given for the delay are factors that cannot be overlooked. 4. The record of this Honourable Court reveals a prolonged and consistent pattern of non-attendance and non-compliance by the Petitioner with directions of this Court. In particular, on 17th November 2022 the record shows that neither the Petitioner nor her advocates never appeared. On the said day, the Court directed that submissions to both the Preliminary Objection and the Petition be exchanged within thirty (30) days, with the Petitioner taking the first fifteen (15) days so as to enable all the issues to be determined expeditiously and at once. 5. When the matter came up on 19th January 2023, the Petitioner and her Advocate were absent. Further, the Petitioner had not complied with the directions on filing of written submissions. The Court recorded thus: ***“The record shows that the Petitioner has not been appearing in Court since June, 2022 despite the directions by the Court. This matter will therefore be listed for dismissal. Let the Deputy Registrar issue a dismissal notice for 7/03/2023.”*** 1. In response to the dismissal notice, the Petitioner’s Advocate filed a Replying Affidavit but did not bother to attend Court on 7/3/2023 when the matter came up that morning but subsequently resurfaced later that day. Initially, the Judge, Ongudi J, as she then was, recorded thus: *“Despite the long replying affidavit filed, the Petitioner is still absent. I give the Petitioner one last chance to appear in Court and explain why the Petition should not be dismissed. Mention on 24/4/2023. Notice to be issued.”* 1. Afterwards, Mr. Mwenesi for holding brief for Justice G.B.M Kariuki (Rtd) for the Petitioner appeared and the notice was thus lifted. 2. On 24/4/2023, both Counsel appeared and the Petitioner’s Counsel offered an explanation supported by the contents of the replying affidavit, which the Court accepted and proceeded to issue comprehensive directions on filing of submissions to both the Preliminary Objection and the Petition once more. The Petitioner was granted 30 days, Respondent 14 days and a mention fixed for 26/6/2023. 3. On 26/6/2023, before L. N Mugambi (J) (the Judge currently seized of this matter), Petitioner had not yet complied. S.M Mwenesi who had been appearing holding brief for Justice G.B.M Kariuki informed the Court he was now taking over the conduct of the matter on behalf of the Petitioner and sought indulgence of the Court for 21 days to examine the matter more keenly. The Application was strongly opposed by the Respondent but was nevertheless allowed by the Court but in allowing the Court cautioned the Petitioner as follows: *“The Petitioner is granted 21 days to comply with the directions issued on 24/4/2023.* ***That will be the last opportunity/chance granted to the Petitioner in that regard****. Mention 24/7/2023.”* 1. On the 24/7/2023; neither the Petitioner nor her Advocate on record appeared in Court. Further, the Petitioner had not complied with the directions of the Court on filing of submissions. On this day, Counsel appearing for the Respondent, Ms. Ndiru submitted: *“The Petitioner has failed continuously to comply with the directions of the Court. We therefore pray for dismissal of the Petition.”* 1. The Ruling by the Court was rendered as follows: *“This Court has indulged the Petitioner severally after failing to comply with the direction issued by this Court. On 26/6/2023, acceded to the request by the Petitioner for extension of time by a further 21 days which however it cautioned would be the last opportunity or chance that was being granted to the Petitioner. Despite this warning, neither the Petitioner nor the Advocate has appeared today nor complied with the Court’s directions as to filing and serving the Respondent with submissions. This Court finds that it has no choice but to dismiss the Petition with costs and mark this file closed.”* 1. In has been held in various judicial precedents that mistake of Counsel should not be visited on the litigant but this position holds where the litigant is also able to demonstrate vigilance on their part. Although the Petitioner claims she lives in Belgium, this in my view does not excuse the apparent apathy that is palpable on her part in this matter. Firstly, these proceedings were being conducted virtually throughout, she could still log in from that corner of the world and follow up on the progress of the case. She needed not attend Court physically. The excuse therefore that she could not follow up the progress on the matter because she had been out of the Country holds no water particularly considering the long history of non-appearance and non-compliance. Further, there is no evidence that she has attached even of email correspondence, text message or any communication demonstrating that she made any attempts to get updates on the progress of her matter from Counsel who appeared for her in the matter. As held by the Court of Appeal in **Kirwa & another v Choge & 2 others [2024] KECA 403 (KLR)** ***“it is trite that a case belongs to a litigant and not her advocate. A litigant has a duty to pursue the prosecution of his or her case”.*** 1. Upon holistic evaluation of the circumstances of this case, the Petitioners explanations fail to convince or justify the chronic non-appearance and disregard of the clear directions of this Court in regard to taking active steps towards prosecution of this suit. Despite the explicit warnings of this Court and repeated indulgence, the Petitioner continuously failed to comply or attend Court. 2. Furthermore, it is evident that the instant Application was not filed without unreasonable delay. It was lodged eleven months after issuance of the dismissal order, yet no reasons have been provided to justify or explain the significant lapse of time. While the right to a fair hearing is indeed a fundamental constitutional principle, it must be balanced against the conduct of a party seeking to invoke it. The Supreme Court in **Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR)** guided as follows: ***“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.”*** 1. The Court finds that the Petitioner has failed to demonstrate sufficient cause to justify the exercise of this Honourable Court's discretion to set aside the Court orders issued on 24th July 2023. The instant Application is thus dismissed with costs to the Respondent. ***JUDGMENT DATED and DELIVERED VIRTUALLY this 25th day of June, 2026.*** **L.N. MUGAMBI** **JUDGE**