https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9988

Byegon v Kirikua (Civil Appeal E020 of 2023) [2026] KEHC 9988 (KLR) (9 July 2026) (Judgment) Neutral citation: [2026] KEHC 9988 (KLR) Republic of Kenya In the High Court at Bomet Civil Appeal E020 of 2023 JK Ng'arng'ar, J July 9, 2026 Between Richard Kiplangat Byegon Appellant and Kalika Jason Kirikua Respondent (Being an Appeal from the Ruling of Principal Magistrate, Kibelion K. at the Principal Magistrate’s Court at Bomet, Civil Suit Number 64 of 2018) Judgment 1.Through a Notice of Motion Application dated 31st October 2022, the Respondent (then 4th Defendant) sought to have the Appellant’s (then Plaintiff) pleadings struck out for failure of disclosing a cause of action against him thereby dismissing the suit. 2.In its Ruling delivered on 22nd March 2023, the trial court allowed the Application and dismissed the Appellant’s suit. 3.Being aggrieved with the said Ruling of the trial court, the Appellant filed his Memorandum of Appeal dated 29th March 2023 appealing against the whole Ruling. 4.My duty as the 1st appellate court is to re-evaluate and re-examine the evidence in the trial court and come to my own findings and conclusions, but in doing so, to have in mind that I neither heard nor saw the witnesses testify. 5.I hereby proceed to summarise the case in the trial court and the parties’ respective submissions in the present Appeal. The 4th Defendant’s/Respondent’s case. 6.Through the Supporting Affidavit sworn by Castro Momanyi on 31st October 2022, the Respondent stated that the Appellant’s suit was filed on 20th July 2018. That the Respondent then entered appearance. The Respondent further stated that the matter was last in court on 13th May 2021 when his Application for dismissal of the suit was dismissed. 7.It was the Respondent’s case that the Appellant lacked interest in prosecuting the suit but was using the court to frustrate the Respondent. That the matter had been inactive for one year and it warranted dismissal. 8.Through his written submissions dated 30th April 2026, the Respondent stated that the Appellant had consistently displayed indolence in prosecuting his suit. The Appellant further submitted that this court had dismissed his Appeal for want of prosecution but reinstated it. That the Appellant was undeserving of the order for reinstatement of his suit in the trial court. 9.It was the Respondent’s submission that the power of reinstating suits was discretionary and relied on Tabuche v Tinga & 2 others [2024] KECA 551 (KLR). That it was incumbent for the Appellant to explain the reasons for his indolence but he failed to do so. The Plaintiff’s/Appellant’s case. 10.Through his Replying Affidavit dated 30th January 2023, the Appellant stated that the Application was made in bad faith and that it was meant to draw away the court’s attention from dealing with the substantive issues. That the matter had delayed owing to the complexities of serving the 1st, 2nd, 3rd and 5th Defendants. The Appellant further stated that the Respondent had filed several Applications seeking to have the suit dismissed and they had been dismissed. 11.It was the Appellant’s case that challenges beyond his control cause the delay in prosecuting the suit. That if the suit is dismissed, he would not have the chance to prosecute it and have it heard on merit. 12.At the time of writing this Judgement, the Appellant had not filed his written submissions despite being directed to do by this court on 10th March 2026. 13.I have gone through and carefully considered the Record of Appeal and the Respondent’s written submissions dated 30th April 2026. The only issue that I have sieved for my determination was whether the Appeal has merit. 14.I have gone through the record and I have noted that the suit in the trial court was filed on 28th July 2018. The Respondent entered appearance and filed his Defence on 17th July 2020. 15.The 4th Respondent filed a Notice of Motion Application dated 19th January 2021 seeking to strike out the Appellant’s suit for duplicity. The same was dismissed by the trial court vide its Ruling dated and delivered on 13th May 2021. This is the last time the matter was active in court. 16.The Appellant stated that the delay in prosecuting his suit was twofold. Firstly, that the Respondents had filed several Applications seeking to have his suit dismissed. The record shows that the Respondent only filed one Application (referenced above) and the same was dismissed. The Appellant’s argument on its face was false and in any event, nothing stopped him from prosecuting his suit once the Respondent’s Application had been dismissed. The same is rejected. 17.The second limb of the Appellant’s argument was that he had difficulty serving the 1st, 2nd, 3rd and 5th Defendants. The record shows that the Appellant filed a Request for Interlocutory Judgement against the 1st, 2nd, 3rd and 5th Defendants on 19th January 2021. The record further shows that the Appellant filed a Notice of Withdrawal of Suit against the 2nd and 3rd Defendants on 29th January 2021. In my view, this argument is as much dishonest as it is an afterthought and the same is rejected. 18.Once the trial court dismissed the Respondent’s Application on 13th May 2021, the suit had been inactive until the Respondent’s Application for dismissal was filed on 1st November 2022. That period of inactivity was more than one year and the reasons for the delay as shown above have been rejected by this court. Order 17 Rule 2 of the Civil Procedure Rules provides that: -1.In any suit in which no application has been made or step taken by either party for one year, the court may give notice in writing to the parties to show cause why the suit should not be dismissed, and if cause is not shown to its satisfaction, may dismiss the suit.(2)If cause is shown to the satisfaction of the court it may make such orders as it thinks fit to obtain expeditious hearing of the suit.(3)Any party to the suit may apply for its dismissal as provided in sub-rule 1.(4)The court may dismiss the suit for non-compliance with any direction given under this Order.(5)A suit stands dismissed after two years where no step has been undertaken.(6)A party may apply to court after dismissal of a suit under this Order 19.It is clear from the above that the Appellant was disinterested in prosecuting his suit. This court noted the same behaviour from the Appellant in its Ruling reinstating his Appeal where the same indolence had been exhibited. In my view, the Appellant has not approached this court with clean hands and does not deserve equity. I have no reason to interfere with the trial court’s decision which I have found to be sound. 20.In the end, the Appeal dated 29th March 2023 is dismissed. The costs in the trial court are maintained. In respect to the Appeal each Party will bear their costs. JUDGMENT DELIVERED, DATED AND SIGNED AT BOMET THIS 9TH DAY OF JULY, 2026............................................HON. JULIUS K. NG’ARNG’ARJUDGEJudgment Delivered in the presence of;Susan/Zachary – Court AssistantOtieno for 4th Respondent