https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1579

**IN THE COURT OF APPEAL AT MERU** **(CORAM: ODUNGA, ONG’UDI & NJUGUNA, JJ.A)** **CIVIL APPEAL (APPLICATION) NO. E311 OF 2026 (*FORMERLY NYR. NO. 158 OF 2020*)** **BETWEEN** **RAMADHAN GITARI JUMA APPLICANT** **AND** **SILAS EPHRAIM NKONGE J. MATHARA ……... 1ST RESPONDENT MUGIIRA M’MWITHA .…………….………..……... 2ND RESPONDENT** (*Being an application for reinstatement of the appeal against the judgment and decree of the High Court of Kenya at Meru (Wendoh, J.) dated on 9th July 2020* ***in*** ***Succession Cause No. 200 of 2000)*** ***\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\**** **RULING OF THE COURT** 1. This appeal was dismissed on 9th February 2026 for non- appearance of the appellant, Ramadhan Gitari Juma (now the ***“applicant”***). The present application, dated 2nd June 2026 and principally brought under **rule 105 (3)** of the **Court of Appeal Rules**, seeks reinstatement of the appeal. The applicant also prays that the costs of this application be in the cause. 2. In an affidavit sworn on 2nd June 2026, the applicant explains the circumstances leading to the dismissal of his appeal and the reasons for seeking its reinstatement. He states that his appeal stems from a judgment in Succession Cause No. 200 of 2000 at the High Court in Meru, which he maintains that he has always been desirous of prosecuting. 1. Regarding the failure to attend court on the day the appeal was dismissed, the applicant depones that he was not aware the appeal had been listed for hearing and asserts that his absence was not deliberate. He attributes the lapse to lack of communication and omission by his previous advocates. The applicant contends that he only became aware of the dismissal on or about 12th May 2026, when the respondents initiated the execution of the High Court decree against him. 2. In a further affidavit sworn on 15th June 2026, the applicant maintains that the dismissal of his appeal resulted from circumstances beyond his control rather than a deliberate disregard for the court, as he lacked personal knowledge of the hearing date and relied entirely on his former advocates to notify him. 3. As the applicant was in breach of **rule 105(3)** of the **Rules** of this **Court** which requires an application for reinstatement to be made within 30 days after the decision of the court or within 30 days after the party who should have been served with a notice for hearing but was not served first learns of the decision, the applicant sought and was granted extension of time by a single Judge of this Court (Gatembu, JA) on 26th May 2026 to bring the application now before us**.** 1. Silas Ephraim Nkonge J. Mathara, the 1st respondent herein, has opposed the motion on the following reasons: that the applicant’s former advocates were duly served with the hearing notice via email on 23rd January 2026; that despite this service, the advocates failed to appear or file any submissions, leading to the dismissal on 9th February 2026; that the applicant failed to provide a sufficient explanation for the absence, characterising him as an indolent litigant, noting that the underlying proceedings commenced in 2000, over 25 years ago, while the appeal was filed over five years ago; and that reinstating the appeal would be prejudicial to the respondents, particularly because they have already commenced execution. 2. The application came up for hearing on 17th June 2026. Mr. Mark Ashaba appeared for the applicant, while Ms. Chelengat Bett appeared for the respondents. Both counsel relied on their written submissions without highlighting the same. 3. The applicant’s written submissions are dated 15th June 2026. He urged the Court to exercise its wide discretion under **rule 4** and **105 (3)** of this **Court’s Rules** and reinstate the appeal. The applicant submits that there is sufficient cause for his failure to attend court, which was due to an omission on the part of his former counsel, who failed to attend Court and had not notified him of the hearing date. The applicant relied on the cases of **Philip Chemwolo & Another vs. Augustine Kubende [1982-88] KAR 103**, **Belinda Murai & Others vs. Amos Wainana [1978] eKLR**, and **CFC Stanbic Bank Ltd vs. John Maina Githaiga & Another [2013] eKLR**, for the submission that he should not suffer the penalty of not having his case heard on its merit simply because a mistake was made by counsel. 1. The applicant further submitted that the Court has inherent jurisdiction to grant a stay of execution to prevent the appeal from being rendered nugatory. He further argued that he has an arguable appeal and it is only fair that the same be heard on merit. He relied on the case of **Kenya Tea Growers Association vs. Kenya Planters and Agricultural Workers Union [2012] eKLR** for the proposition that an arguable appeal raises a bona fide issue deserving consideration, not one that will necessarily succeed. 2. In their submissions dated 15th June 2026, the respondents maintain that the applicant has not met the threshold to shift blame to his advocate, as no supporting affidavit from the said advocate was provided, nor was there material evidence of the applicant’s own diligence in following up on the matter. The respondents cited the Supreme Court decision in [**Gaciani & 11 Others vs. Kimanga & Another [2023] KESC 23 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/23/eng%402023-04-21) on the submission that parties have a responsibility to show interest in and to follow up on their cases even when they are represented by counsel, and it does not matter whether the party is literate or not. 3. Emphasizing that this litigation has spanned over twenty-five years, the respondents argue that the interests of justice demand finality in litigation and note that the intended appeal lacks any arguable grounds. Regarding the prayer for stay of execution, the respondents maintain that the applicant failed to invoke the proper procedural rules under **rule 5(2)(b)** of the **Court of Appeal Rules**, and that no stay can be granted against a negative order of dismissal where no substantive appeal is currently pending before the Court. They have relied on the case of [**Stanley Kangethe Kinyanjui vs. Tony Ketter & 5 Others [2013] KECA 378 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2013/378/eng%402013-02-22)to support this submission. 4. Consequently, the respondents pray that the application be dismissed with costs. 5. We have considered the application and the submissions of the parties. Under **rule 105 (1)** of the **Court of Appeal Rules**, this Court is clothed with discretion to reinstate an appeal that has been dismissed for non-attendance of the appellant, on application by the appellant. The proviso to **rule 105(1)** requires an applicant seeking reinstatement to ***“show that he was prevented by a sufficient cause from appearing when the appeal was called out for hearing.”*** 6. In considering a similar application, Nambuye, JA. in [**Ngugi vs. Thogo**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2019/1226) **[2021] KECA 88 (KLR)** stated: ***“In an application for reinstatement of a court process, there is need to balance the requirement as to whether reasonable grounds have been preferred for reinstatement and the prejudice to be suffered by the opposite party if such an order for reinstatement were to issue bearing in mind at the same time that dismissal is a draconian order that drives parties away from the seat of justice and should therefore be employed sparingly.”*** 1. As to the reason for non-attendance, the applicant has blamed his advocate for failing to attend court and not notifying him of the date. On their part, the respondents have asked the court not to be swayed by this argument, as there is no affidavit by the previous advocate owning up to his mistake. 2. While the respondents correctly point out the advanced age of the dispute and the need for finality in litigation, the applicant indicates that the failure to attend court on 9th February 2026 resulted from a lack of communication and omission on the part of his former counsel, a matter that was entirely outside his personal control. 3. There are instances when a party will be left to suffer the mistake of his or her counsel, however, there are other instances where the mistake of counsel can be excused, and the matter before us is one of such a case. 4. In the case of [**Belinda Murai & 9 Others vs. Amos Wainaina [1979] KECA 25 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/1979/25/eng%401979-03-08), this Court held: ***“A mistake is a mistake. It is no less a mistake because it is an unfortunate slip. It is no less pardonable because it is committed by senior counsel, though in the case of a junior counsel, the court might feel compassionate more readily. A blunder on a point of law can be a mistake. The door of justice is not closed because a mistake has been made by a person of experience who ought to have known better. The court may not forgive or condone it, but it ought certainly to do whatever is necessary to rectify it if the interests of justice so dictate. It is known that courts of justice themselves make mistakes, which is politely referred to as erring in their interpretation of laws and adoption of a legal point of view, which courts of appeal sometimes overrule. It is also not unknown for a final court of appeal to reverse itself when wisdom accumulated over the course of the years since the decision was delivered so requires. It is all done in the interests of justice. A static system of justice cannot be efficient.”*** 1. There is no evidence that the applicant herein is an indolent litigant, and the delay in bringing the application was considered and found to be excusable by the single judge who extended time for filing of the current motion. 2. As to the prejudice to be suffered by the respondents if the application is allowed, the respondent only deposed that they have started the process of execution of the judgment. The respondents did not demonstrate that they stand to suffer irreparable loss which cannot be compensated by an order of costs. 3. As regards prayer No. 4 seeking stay of execution of the decree pending the hearing and determination of this application, this prayer is already spent upon delivery of this ruling, and we cannot issue it. 4. We therefore allow this application in terms of prayers 2 and 3. Costs shall abide by the outcome of the appeal. 5. It is so ordered. **Dated and delivered at Meru this 31st day of July 2026.** * 1. **V. ODUNGA** **…………………………… JUDGE OF APPEAL** * 1. **ONG’UDI** **…………………………… JUDGE OF APPEAL** **L. NJUGUNA** **…………………………… JUDGE OF APPEAL** *I certify that this is a True copy of the original* *Signed* ***DEPUTY REGISTRAR***