https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12715

Makuti alias Zelpher (Suing on Her Own Behalf and as the Legal Representative of the Estate of the Late John Asiema Otieno) v Wadia Construction Co. Ltd (Miscellaneous Civil Cause E019 of 2025) [2026] KEHC 12715 (KLR) (4 August 2026) (Ruling) Neutral citation: [2026] KEHC 12715 (KLR) Republic of Kenya In the High Court at Vihiga Miscellaneous Civil Cause E019 of 2025 RN Nyakundi, J August 4, 2026 Between Selpher Makuti alias Zelpher (Suing on Her Own Behalf and as the Legal Representative of the Estate of the Late John Asiema Otieno) Applicant and Wadia Construction Co. Ltd Respondent Ruling 1.Before the Court is the Applicant’s Notice of Motion dated 21st May 2026 and certified urgent. Shorn of the prayers that are now spent, the substantive orders sought are: -a.That the Court grant leave to reinstate this miscellaneous cause so that it may be heard on merit for the purpose of transferring the Applicant’s suit, Vihiga Chief Magistrate’s Court Civil Suit No. 163 of 2023, to the Milimani Commercial Magistrate’s Court at Nairobi;b.That the Honourable Court be pleased to extend time for the Appellant to file his submissions dated 2nd March 2026 and to consider the same to be duly on record upon paying requisite fees.c.That the costs of the application be in the cause. 2.The application is brought under, among other provisions, Section 1A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules, and is supported by the affidavit of the Applicant, Selpher Makuti, sworn on 21st May 2026, and by written submissions dated 25th May 2026. The Respondent opposes the application by grounds of opposition and written submissions dated 8th June 2026. Applicant’s case 3.The Application is made on the following grounds that the Applicant is the widow and legal representative of the late John Asiema Otieno, who is said to have died instantly on or about 22nd March 2021 in the course of his employment when a crane slipped and struck him. She filed suit against the Respondent, his employer, seeking compensation, the Respondent having paid the burial expenses but declined to pay the insured death benefits. 4.The Applicant’s explanation for what befell the matter is set out in her affidavit and submissions. She deposes that the matter was listed on 19th March 2026 for confirmation of the filing of submissions; that in that very week she had lost a brother in an electrical-pole accident and a sister, whose burial fell the day before; that, being bereaved, she asked a colleague to hold her brief; and that in the course of that mention the matter came to be terminated. She pleads that she was not heard on the merits, apologises for the circumstances, and prays that the matter be reinstated so that the right (territorial) Court may hear the claim. She relies on Philip Chemwolo & Another v Augustine Kubede [1986] eKLR and on Article 25(c) of the Constitution, submitting that a litigant should not be shut out and made to bear the penalty of a mistake, and that the right to a fair hearing entitles her to have the dispute determined on merit. Respondent’s case 5.The Respondent raises what is in substance a pure point of law going to jurisdiction. Its case is that the matter was not merely “terminated”: on 19th March 2026, when the cause was listed to confirm filing of submissions, counsel for the Applicant applied to withdraw the application, indicating an intention to file a formal application to transfer the matter to the Director of Occupational Safety and Health, and the application was accordingly withdrawn and the file closed. 6.On that footing the Respondent submits that withdrawal of a suit is, in the words of the authorities, its end; that once a suit is withdrawn it ceases to exist in the eyes of the law; that the Court thereupon becomes functus officio; and that neither Order 25 of the Civil Procedure Rules nor any other provision confers upon the Court power to reinstate a withdrawn suit, the only course open to a party who wishes to pursue the claim being to file a fresh suit. The Respondent relies principally on Priscilla Nyambura Njue v Geochem Middle East Ltd; Kenya Bureau of Standards (Interested Party) [2021] eKLR, together with the authorities there gathered, including Bahati Shee Mwafundi v Elijah Wambua [2015] eKLR, and prays that the application be dismissed with costs as an abuse of process. Issues for determination 7.I have read and considered the pleadings herein. There are two (2) issues manifest for determination by this Honourable Court: -a.Whether, on the facts, this Court has jurisdiction to reinstate the cause, or whether it is functus officio.b.Whether the Applicant has made out a proper case for the exercise of the Court’s discretion to reinstate. Analysis and Determination a. A threshold conflict of fact 8.Before turning to the law, I must confront a conflict on the record which the parties have not squarely addressed. The Respondent’s case proceeds on the premise that the matter was withdrawn by the Applicant’s counsel on 19th March 2026. The Applicant’s own account is more equivocal: her submissions speak of the suit being “dismissed” during a mention held in her absence while she was bereaved, and of the case being “thrown out” and “terminated … unheard on merit … for want of prosecution”. Whether the cause came to an end by the Applicant’s own act of withdrawal, or by an order of the Court dismissing or striking it out, is not a matter of mere labelling. It determines which body of law applies and, ultimately, whether this Court has power to act at all. 9.The distinction is fundamental. If the cause was dismissed or struck out by the Court for non-attendance or for want of prosecution then, depending on the provision under which that was done (for example Order 12 or Order 17 of the Civil Procedure Rules), the Court may retain an express power to set aside its own order and reinstate the matter on sufficient cause shown. If, on the other hand, the cause was withdrawn by the Applicant herself under Order 25, a different and more restrictive regime applies, as explained below. That conflict, however, is put beyond doubt by the record. The proceedings of 19th March 2026 disclose that, on that date, counsel for the Applicant applied to withdraw the Amended Application dated 14th October 2025; the Court accordingly marked the said Amended Application as withdrawn, with an order for costs to the Respondent, and further directed that the file be closed. 10.The characterization of these events is therefore not left to the parties' competing descriptions: what occurred was a withdrawal at the Applicant's own instance, granted and recorded by the Court, and not a dismissal or striking out on the Court's own motion. Whatever the Applicant's submissions may loosely term a matter "thrown out" or "terminated for want of prosecution", the record speaks with one voice, and it speaks of a withdrawal. It is against that established fact, and not against the equivocal account in the affidavit, that the law falls to be applied. b. Withdrawal under Order 25 and the doctrine of functus officio 11.Proceeding on the premise that the matter was withdrawn, the governing provision is Order 25 of the Civil Procedure Rules, 2010. Rule 1 permits a plaintiff, at any time before the suit is set down for hearing, by notice in writing served on all parties, wholly to discontinue the suit or to withdraw any part of the claim, and provides that such discontinuance or withdrawal shall not be a defence to any subsequent action. Where the suit has been set down for hearing, Rule 2 requires either the written consent of all parties or the leave of the Court, granted on such terms as are just. 12.The right so conferred is a substantial one and a plaintiff’s entitlement to withdraw cannot ordinarily be curtailed as seen in Nicholas Kiptoo arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR where the Supreme Court held as follows: -“a party’s right to withdraw a matter before the Court cannot be taken way. A Court cannot bar a party from withdrawing his matter. All that the Court can do is to make an order as to costs where it is deemed appropriate.” 13.It is useful to reproduce the provisions of Order 25 of the Civil Procedure rules, 2010 which provides for withdrawal, discontinuance and adjustment of suits. It reads: -1.At any time before the setting down of the suit for hearing the plaintiff may by notice in writing, which shall be served on all parties, wholly discontinue his suit against all or any of the defendants or may withdraw any part of his claim, and such discontinuance or withdrawal shall not be a defence to any subsequent action.2.(1)Where a suit has been set down for hearing it may be discontinued, or any part of the claim withdrawn, upon the filing of a written consent signed by all the parties.(2)Where a suit has been set down for hearing the Court may grant the plaintiff leave to discontinue his suit or to withdraw any part of his claim upon such terms as to costs, the filing of any other suit, and otherwise, as are just. 14.In Beijing Industrial Designing & Research Institute v Lagoon Development Ltd [2015] eKLR the Court commenting on the above provision, distilled the three circumstances contemplated under the above rule. It stated: -“The above provision presents three clear scenarios regarding discontinuance of suits or withdrawal of claims. The first scenario arises where the suit has not been set down for hearing. In such an instance, the Plaintiff is at liberty, any time, to discontinue the suit or to withdraw the claim or any part thereof. All that is required of the Plaintiff is to give notice in writing to that effect and serve it upon all the parties. In that scenario, the Plaintiff has an absolute right to withdraw his suit, which we agree cannot be curtailed. The second scenario arises where the suit has been set down for hearing. In such a case the suit may be discontinued or the claim or any part thereof withdrawn by all the parties signing and filling a written consent of all the other parties.The last scenario arises where the suit has been set down for hearing but all the parties have not reached any consent on discontinuance of the suit or withdrawal of the claim or any part thereof. In such eventuality, the Plaintiff must obtain leave of Court to discontinue the suit or withdraw the claim or any part thereof, which is granted upon such terms as are just. In this scenario too, the Plaintiff’s right to discontinue his suit is circumscribed by the requirement that he must obtain the leave of the Court. That such leave is granted on terms suggests that it is not a mere formality”. (my emphasis) 15.But the right carries its own consequence. As was held in Priscilla Nyambura Njue v Geochem Middle East Ltd (Interested Party) [2021] eKLR, on which the Respondent relies, the withdrawal of a suit is itself its end; Order 25 confers no corresponding right to revoke or rescind a withdrawal, and it confers upon the Court no power to reinstate a suit once withdrawn. The remedy of a party who has withdrawn, and who later wishes to pursue the claim, lies in the express saving in Rule 1 that the withdrawal is not a defence to a subsequent action – that is to say, in the filing of a fresh suit, not in the resurrection of the old one. 16.That reasoning rests on the doctrine of functus officio. Once a plaintiff has withdrawn and the withdrawal has taken effect, the plaintiff ceases to be a plaintiff and the suit ceases to exist; there being nothing left pending, the Court is functus officio and cannot make orders in a cause that has come to an end. A Court cannot breathe life into that which, in the eyes of the law, is no longer there. To the extent, therefore, that the Applicant asks this Court to “reinstate” a withdrawn cause, the short answer is that the Court has no such power under Order 25, and I respectfully adopt the reasoning in Priscilla Nyambura Njue. c. Inherent jurisdiction 17.The Applicant’s reliance on the broad equity of Philip Chemwolo v Augustine Kubede and on the principle that a litigant should not be driven from the judgment seat for the mistake of an advocate, invites the Court to act in exercise of its inherent jurisdiction under Section 1A, 1B and 3A of the Civil Procedure Act. That jurisdiction is real, but it is not at large. As the Court observed in Priscilla Nyambura Njue, a Court’s inherent power to regulate its own process does not extend to the assumption of a jurisdiction it does not otherwise have; it operates to fill gaps and to secure procedural fairness where the law is silent, not to override the clear and deliberate provision of a rule. Where Order 25 has spoken in plain terms, and has conspicuously omitted any power of reinstatement, the inherent jurisdiction cannot be prayed in aid to supply what Parliament chose not to provide. Had a power of reinstatement been intended, it would have been enacted, as it was for dismissals under other Orders. 18.There is a further difficulty with the mistake-of-counsel argument, again addressed in Priscilla Nyambura Njue. A duly instructed advocate has, by virtue of the retainer, an implied general authority to compromise, settle or withdraw a suit and a client is bound by acts done within that authority unless an express limitation was communicated to the opposing side as alluded in M & E. Consulting Engineers Limited v Lake Basin Development Authority & another [2015] KECA 321 (KLR). 19.On the material presently before the Court there is nothing to show that any limitation on the advocate’s authority was communicated to the Respondent before the withdrawal. The Applicant may well have a grievance against her former advocate, but that is a matter between advocate and client and does not, without more, clothe this Court with a jurisdiction it does not possess. d. The transfer prayer and the confusion in the papers 20.I add three observations for completeness, none of which improves the Applicant’s position but each of which the parties should note. First, the ultimate object of the application is to have the Applicant’s magistrate’s Court suit, Civil Suit No. 163 of 2023, transferred from Vihiga to the Milimani Commercial Magistrate’s Court in Nairobi. The reinstatement of this miscellaneous High Court cause is sought only as a vehicle for that transfer. Whatever the merits of the transfer, it cannot be achieved through a cause that no longer exists; and the power to transfer a suit from one magistrate’s Court to another is in any event governed by its own provisions (Sections 18 and 79 of the Civil Procedure Act) and must be invoked by a competent and properly constituted application. 21.Secondly, the papers are internally inconsistent as to what is to be reinstated. The Notice of Motion and the supporting affidavit speak variously of reinstating “this miscellaneous suit”, of reinstating the magistrate’s Court suit “No. 163 of 2023” (elsewhere rendered “E163 of 2023”), and the submissions speak of reinstating an “amended application dated 28/07/2025”. These are not the same thing, and the confusion is itself a reason for caution before granting any relief. 22.Thirdly and by way of guidance rather than decision, since what in truth occurred on 19th March 2026 was a withdrawal, the Applicant’s remedy is not before this Court on this application but in a fresh action, the withdrawal being (by Rule 1) no defence to it, subject always to any question of limitation Conclusion 23.On the premise that the cause was withdrawn under Order 25, this Court is functus officio and has no jurisdiction to reinstate it. The application, in so far as it seeks reinstatement, must therefore fail and the prayer to extend time for filing submissions in a cause that has come to an end falls away with it. I reach that conclusion without expressing any view on the merits of the Applicant’s underlying claim for the death benefits of her late husband, which, if pursued by proper process in the proper forum, will fall to be determined on its own merits. 24.I am conscious that this outcome leaves a bereaved widow without the relief she seeks in this cause and I have not reached it lightly. But jurisdiction cannot be conferred by sympathy and the law as it stands does not permit the reinstatement of a withdrawn cause. The door the law leaves open to her is a fresh suit, not this application. Costs 25.Costs follow the event and are in the Court’s discretion. The Respondent has succeeded. However, having regard to the Applicant’s bereavement, to the fact that the difficulty is substantially the making of her former advocate rather than of the Applicant herself, and to the desirability of not further burdening a widow pursuing her late husband’s benefits, I consider that the justice of the case is met by an order that each party bears its own costs of the application. Disposition 26.In view of the foregoing and subject to the resolution of the factual questions, I make the following orders: -a.The Notice of Motion dated 21st May 2026 is dismissed.b.For the avoidance of doubt, the dismissal is without prejudice to any right the Applicant may have, subject to the law of limitation, to institute a fresh suit in the proper forum in respect of the death benefits of the late John Asiema Otieno, a withdrawal under Order 25 Rule 1 of the Civil Procedure Rules being no defence to such a suit.c.Nothing in this Ruling shall be taken to determine the merits of the Applicant’s underlying claim, or to preclude any properly constituted application to the appropriate Court touching Vihiga Chief Magistrate’s Court Civil Suit No. 163 of 2023.d.Each party shall bear its own costs of the application. 27.Orders accordingly. DATED, SIGNED AND DELIVERED VIA CTS & EMAILS THIS 4TH DAY OF AUGUST 2026………………………………………R. NYAKUNDIJUDGE