https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10663

**THE REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT KIAMBU** **MISC CIVIL APPLICATION NO E034 OF 2025** PAUL KARUME KIMANI………………………...…………………APPLICANT VERSUS JOEL KARANI GAKURU……………………………………..1ST RESPONDENT MESHACK MURISI……………………….………………….2ND RESPONDENT **RULING** 1. The applicant filed the Notice of Motion application dated 18th August 2025 pursuant to Order 12 Rule 7 of the Civil Procedure Rules. The applicant seeks to set aside the Court Orders made on 16th July 2025, dismissing the application dated 4th March 2025 for want of prosecution. The applicant prays for costs of the application to be in the cause. 2. The application is premised on the grounds set out on the face of the Motion, and the affidavit in support sworn on 18th August 2025 by Mr. Robert Ongeri, Advocate, from the firm of Ombuna Ongeri & Co. Advocates, representing the applicant. Mr. Ongeri deposed that the suit was listed for hearing of the application dated 4th March 2025 on 16th July, 2025. He stated that on the hearing date, he logged into the Court session but his call got disconnected due to loss of power in the building where his office is located, leading to temporary disconnection from the Court. He stated that when he got reconnected he was informed by Hon. Mshila J., that the matter had already been called out and the file had been taken back to the Registry. 3. He averred that when he perused the file he established that the application dated 4th March 2025 had been dismissed for want of prosecution. He stated that the failure to respond when his matter was called out was not deliberate but was due to circumstances beyond his control. He urged this Court to exercise discretion by setting aside the dismissal order and reinstate the application for justice to be done. 4. In opposition to the application, the respondents filed a replying affidavit through their Advocate, Mr. Raphael Masila. He stated that the application is misleading, frivolous and meant to obstruct closure of the matter. He stated that the applicant filed an application dated 4th March 2025 seeking leave to appeal out of time. He further stated that the matter was fixed for mention on 28th March 2025, when the Court (Hon Mshila J.), gave directions for the application to be served within fourteen (14) days and the Judge fixed it for *interpartes* hearing on 16th July 2025. He stated that the applicant only served the application on 15th July 2025, a few hours to the hearing, and on the hearing date, the applicant’s Counsel was absent with no explanation, leading to dismissal of the said application, only for him to attribute his absence to a power blackout. 5. Mr. Masila contended that the applicant did not provide any evidence such as a report from internet service provider, Kenya Power and Lighting Company, the building management or any notification to the opposing Advocate or the Court Registry. He argued that even if there was a power blackout, the applicant’s Counsel ought to have used mobile data, or requested another Advocate to hold his brief, or appeared physically in Court or notified the Court in real time. 6. Mr. Masila argued that the explanation given by the applicant’s Counsel is an afterthought and fabricated to support reinstatement of the application that was dismissed. He stated that the applicant’s Advocate has demonstrated a repeated pattern of indolence, for failing to comply with Court timelines on service and using fabricated excuses, which shows bad faith. 7. He stated that reinstatement of the dismissed application is discretionary, but such discretion should be exercised judicially and cautiously. He stated that the instant application has not met the test for reinstatement as there is no excusable cause for delay, no *bona fide* explanation for non-compliance and there was deliberate obstruction. He averred that reinstatement will encourage indolence, undermine the Court’s authority and prejudice the respondents who have been diligent. 8. Mr. Masila urged this Court to dismiss the application with costs, for being frivolous, vexatious and an abuse of Court process. 9. This Court directed that the application would be canvassed by way of written submissions. The applicant’s submissions dated 23rd February 2026 were filed by the law firm of Ombuna Ongeri & Co. Advocates, whereas the respondents submissions dated 5th March 2026 were filed through the law firm of G. Mutua Molo & Co Advocates. 10. Mr. Ongeri, learned Counsel for the applicant, urged this Court to exercise its discretion and set aside the dismissal orders, as his non-attendance in Court was occasioned by factors beyond his control. He stated that the application was filed in a timely manner, in less than 30 days since dismissal of the application in issue. He maintained that failure to respond to the matter after it was called out, was not intentional. He urged this Court to allow the application so that it can be determined on merits. 11. Mr. Masila, learned Counsel for the respondents, relied on the Court of Appeal case in **Kitts Mbati Mukonyole V Levi Ndombi Mukonyole** [2013] KECA 175 (KLR), which addressed the principles that Courts should consider when determining whether to reinstate a matter dismissed for non-attendance. He reiterated that the applicant has not provided any documentary evidence for failure to attend Court, neither did he take alternative measures to ensure attendance on the day in issue, which shows indolence and disregard to the Court’s directions. Mr Masila argued that reinstatement of a suit though is discretionary, is dependent on diligence, good faith and a satisfactory explanation which has not been provided by the applicant. He contended that the application for reinstatement would occasion prejudice to the respondents, who have always been diligent and compliant with Court processes. He urged this Court to dismiss the instant Notice of Motion application with costs to the respondents. **ANALYSIS AND DETERMINATION.** 1. I have considered the Notice of Motion application, the supporting affidavit, the replying affidavit and the written submissions by both Counsel. The issue that arises for determination is whether the Court should allow reinstatement of the application dismissed on 16th July 2025. 2. The principles governing reinstatement of a suit were explained in the case of **John Nahashon Mwangi v Kenya Finance Bank Limited (in Liquidation) [2015] eKLR**as follows: **“*The fundamental principles of justice are enshrined in the entire Constitution and specifically in Article 159 of the Constitution. Article 50 coupled with article 159 of the Constitution on right to be heard and the constitutional desire to serve substantive justice to all the parties, respectively, constitutes the defined principles which should guide the Court in making a decision on such matter of reinstatement of a suit which has been dismissed by the Court. These principles were enunciated in a masterly fashion by Courts in a legion of decisions which I need not multiply except to state that; Courts should sparingly dismiss suits for want of prosecution for dismissal is a draconian act which drives away the plaintiff in an arbitrary manner from the seat of judgment. Such act are comparable only to the proverbial ‘’Sword of the Damocles’’ which should only draw blood where it is absolutely necessary. The same test will apply in an application to reinstate a suit and a Court of law should consider whether there are reasonable grounds to reinstate such suit-of course after considering the prejudice that the defendant would suffer if the suit was reinstated against the prejudice the Plaintiff will suffer if the suit is not reinstated.”*** 1. In this instance, Mr. Ongeri stated that he failed to attend Court following a power blackout in the building he works from. That being the case, he was required to take alternative measures to ensure his attendance in Court or at least communicate his predicament to the opposing Counsel or the Court Registry. As pointed out by the respondents’ Counsel, the applicant’s Counsel could have used his mobile phone to log into Court or he could have asked an Advocate in a different building to hold his brief. The applicant’s Counsel however did nothing to remedy the situation. This Court finds that the applicant’s Counsel was indolent and the Court (Hon. Mshila J.), was justified in dismissing the application dated 4th March 2025, for want of prosecution. This Court is not persuaded that the instant application is merited. The same is dismissed with costs to the respondents. It is so ordered. **DATED, SIGNED and DELIVERED at KIAMBU on this 26TH day of JUNE 2026. Ruling delivered through Microsoft Teams Online Platform.** **NJOKI MWANGI** **JUDGE** **In the presence of:-** No appearance for the applicant Mr. Masila for the respondents Ms Julia – Court Assistant.