https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8668

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT BOMET** **CRIMINAL APPLICATION NO. E035 OF 2025** **SIMON KIPRONO SIELE …………………….………..… 1ST APPLICANT** **PHILIP KIPLANGAT TOWETT ………………………… 2ND APPLICANT** **VS** **REPUBLIC ………………………………..………..…………RESPONDENT** **R U L I N G** 1. Through the Notice of Motion Application dated 18th March 2026, the Applicants sought the following orders: - 2. Spent. 3. Spent. 4. THAT this Honourable Court be pleased to set aside its orders dated 25th February 2026 dismissing the Application dated 27th November 2025. 5. THAT this Honourable Court be pleased to reinstate the Application dated 27th November 2025. 6. THAT necessary directions be given. 7. The Application was brought under **Articles 1, 22, 23(1) (2), 48, 50 and 159 of the Constitution of Kenya**. It was premised on the grounds on the face of the Application and further by the Supporting Affidavit sworn by Philip Kiplangat Towett on 18th March 2025. **The Applicants’ case** 1. The Applicants stated that they filed an Application dated 27th November 2025 which sought an order to stay proceedings in Bomet Criminal Case Number 545 of 2023. That the court issued directions on how the Application would be heard. The Applicants further stated that when the matter came up for mention on 25th February 2026, this court dismissed their Application for want of prosecution. That the dismissal was made in bad faith as the Application raised weighty issues. 2. It was the Applicants’ case that the failure to attend court on 25th February 2026 was an inadvertent mistake on the part of their advocates and the mistake ought not be visited upon them. 3. Through their written submissions dated 21st April 2026, the Applicants submitted that the failure to attend court was not deliberate and was not intended to obstruct justice. That if the dismissal of their Application stood, they would be exposed to imminent criminal prosecution on a matter that was substantially intertwined with ventilated civil proceedings. 4. Through their further written submissions dated 29th May 2026, the Applicants submitted that they ought to be given a second chance to prosecute their Application. That their present Application sought to reinstate their previous Application dated 27th November 2025 and could not be *res judicata.* **Response** 1. Through the Grounds of Opposition dated 31st March 2026, the Respondent stated that the Application was a replica of a previous and similar Application that had been dealt with and was thus *res judicata*. That the Applicants had made no effort to reinstate the Application dated 27th November 2025 and that the present Application was an attempt to delay and scuttle ongoing criminal trial process. 2. A Replying Affidavit dated 9th April 2026 sworn by David Cheruiyot (complainant) and he stated that the Application was misplaced and meant to divert this court’s attention from the charges preferred against the Applicants. That Article 157 of the Constitution gave the DPP the power, at any stage, to stay proceedings or institute charges. 3. I have gone through the Respondent’s written submissions dated 22nd April 2026 and I have noted that they addressed themselves on the issue of stay of proceedings which was not the subject of the present Application. 4. I have gone through the Notice of Motion Application dated 18th March 2026, the Grounds of Opposition dated 31st March 2026. the Replying Affidavit dated 9th April 2026, the Applicants’ written submissions dated 21st April 2026 and 29th May 2026 and the Respondent’s written submissions dated 22nd April 2026. The only issue I have sieved for my determination was whether this court should reinstate the Application dated 27th November 2025. 5. It is trite law that the power of this court to reinstate an Application is discretionary and that such power ought to be exercised judiciously. 6. I have gone through the record and noted that the Applicants filed their Application dated 27th November 2025. This court gave directions and set a mention date of 18th December 2025. On 18th December 2025, this court gave directions as to how the Application would be heard and stated that the matter would be mentioned on 25th February 2026. The Application was dismissed on 25th February 2026 for want of prosecution. 7. The Applicants stated that they attended court save for 25th February 2026 when the Application was dismissed. I have gone through the record and I have confirmed this position. The Applicants further stated that the failure to attend court was an inadvertent mistake on the part of their Advocate and it should not be visited upon them. 8. I agree with **Arbab Trading Company Limited v Mwambingu & another [2026] KEHC 533 (KLR)** where the court held: - ***“A litigant should not suffer for the inadvertent mistakes of its advocate where, as here, the substantive defence and evidence were already on record.”*** 1. Similarly, the Court of Appeal in **Omar v Patrick M. Nyamu t/a Global Woods and Agro Hardware [2022] KECA 8 (KLR)** held: - ***“………Since the mistake was due to an inadvertent mistake of the advocate, the same should not be visited upon the appellant.”*** 1. Having gone through the record and further having noted that the Application was dismissed on the second mention date, it is my view that in the interest of justice, the Applicants be allowed to prosecute their Application dated 27th November 2025 on merit. 2. In the end, I make the following orders: - 3. The Notice of Motion Application dated 27th November 2025 is reinstated. 4. Since the court had already given directions on the hearing of the Application, the matter is scheduled for mention on 16.7.2026 to confirm filing of submissions and take a Ruling date. 5. Each party to bear their own costs. **Ruling delivered, dated and signed this 22nd day of June,** **2026** **........................................** **HON. JULIUS K. NG’ARNG’AR** **JUDGE** **Ruling delivered in the presence of;** **Siele/Susan – Court Assistants** **Ms Koech for the State** **G.K. Koech for Applicants**