https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6662

Sumbule v Kofa & another (Sued as admins of the Estate of Hon Tola Kofa - Deceased) (Commercial Case 548 of 2007) [2026] KEHC 6662 (KLR) (Commercial and Tax) (14 May 2026) (Ruling) Neutral citation: [2026] KEHC 6662 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Commercial Case 548 of 2007 PM Mulwa, J May 14, 2026 Between Baffin Juma Sumbule Plaintiff and Patrick Mgawa Kofa & Anderson Maro haidavu (Sued as admins of the Estate of Hon Tola Kofa - Deceased) Defendant Ruling 1.Before Court is the Notice of Motion dated 13th September 2023 in which the Applicant seeks, principally, review, discharge and setting aside of the orders dismissing the suit and reinstatement thereof for hearing on the merits. The Applicant also seeks transfer of the suit to the Employment and Labour Relations Court at Bungoma. 2.The application is premised on the grounds that the Applicant failed to attend court owing to illness, loss of contact with his former advocate, and inability to travel to Nairobi after losing employment. The Applicant contends that the failure to prosecute the matter was not deliberate and that unless the orders sought are granted, he stands to suffer prejudice. 3.The application is opposed vide the Grounds of Opposition dated 10th September 2025. The Respondents contend that the matter has remained dormant for over a decade and that the Applicant has filed several previous applications, some of which were themselves dismissed for want of prosecution. They argue that the Applicant has consistently demonstrated disinterest in prosecuting the suit and that the present application amounts to an abuse of the court process. 4.The application was canvassed by way of written submissions, which I have carefully considered together with the pleadings and authorities cited by the parties. 5.In my view, the issues falling for determination are whether the Applicant has established sufficient cause to warrant setting aside the dismissal orders and whether the suit ought to be reinstated for hearing on the merits. 6.The power of the Court to set aside dismissal orders is discretionary. Under Order 12 Rule 7 of the Civil Procedure Rules, the Court may set aside or vary orders entered in the absence of a party upon such terms as may be just. Equally, Sections 1A, 1B and 3A of the Civil Procedure Act oblige the Court to facilitate the just, expeditious, proportionate and affordable resolution of disputes. 7.Reinstatement of a suit is therefore not automatic but is a discretionary remedy which must be exercised judiciously and upon sufficient cause being shown. An applicant seeking such relief must demonstrate, whether the delay is prolonged and inexcusable; whether justice can be done despite the delay; justice is justice for both sides, and so the positions of both sides must be considered; whether the other side would be prejudiced, by justice not being done by the prolonged delay; and the reasons given for the delay. (See Ivita v Kyumbu (1984) KLR 441). 8.In determining whether sufficient cause has been established, the Court must remain guided by the overarching objective of doing substantive justice to the parties and by the principle that procedural technicalities ought not to hinder the administration of justice. 9.From the record, the suit was instituted in the year 2007 and was eventually dismissed for want of prosecution on 12th September 2022. The present application seeking reinstatement was filed on 13th September 2023, approximately one year after the dismissal. 10.The Applicant attributes the delay to illness, inability to travel and mistakes of previous counsel. Courts are generally slow to shut litigants out from the seat of justice merely on account of inadvertence by counsel. Courts have severally held that suits belong to litigants, who have a duty to pursue prosecution of their cases to the end, and to constantly check with their advocates on the progress of their matters. (See the case Duale Mary Anne Gurre v Amina Mohamed Mahamood & another [2014] eKLR). 11.The discretion to reinstate proceedings is not intended to aid indolent litigants or parties who deliberately delay the course of justice. It is in the interest of justice that litigation must be conducted expeditiously and efficiently so that injustice caused by delay would be a thing of the past. Justice would be better served if we dispose of matters expeditiously. 12.In my view, the explanation offered for the prolonged inactivity is neither satisfactory nor sufficient. 13.The medical documents relied upon by the Applicant were challenged for want of authentication and, in any event, do not adequately account for the entirety of the delay from the initial dismissal of the suit and the subsequent inactivity thereafter. Further, the repeated filing of applications seeking substantially similar reliefs, without diligent prosecution, lends credence to the Respondents’ contention that the litigation has been kept alive without serious intention to conclude it. 14.I have equally considered the prejudice likely to be occasioned to the Respondents should the matter be reinstated. The dispute has remained pending for well over a decade. The original Defendant is deceased and substitution has since taken place. Inevitably, prolonged delay undermines the quality of evidence, availability of witnesses and the ability of the Court to fairly and effectively determine the dispute. 15.The Court is alive to the constitutional imperatives under Articles 50 and 159 of the Constitution guaranteeing the right to be heard and requiring courts to administer justice without undue regard to procedural technicalities. However, those provisions do not excuse indolence, inordinate delay or abuse of the court process. Justice cuts both ways, and the Respondents are equally entitled to certainty and finality in litigation. 16.In the circumstances, this court is not persuaded that the Applicant has demonstrated sufficient cause to warrant setting aside the dismissal orders or reinstatement of the suit. Consequently, the Notice of Motion dated 13th September 2023 is devoid of merit and is hereby dismissed. 17.Given the nature of the dispute and the circumstances of the case, I make no order as to costs. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 14TH DAY OF MAY 2026.P.M. MULWAJUDGEIn the presence of:Plaintiff in person - presentMr. Tumaini for DefendantCourt Assistant: Lispa