https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9260

Tube v Attorney General (Petition 265 of 2018) [2026] KEHC 9260 (KLR) (Constitutional and Human Rights) (29 June 2026) (Ruling) Neutral citation: [2026] KEHC 9260 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Petition 265 of 2018 RE Aburili, J June 29, 2026 (FORMERLY ELRC 142 OF 2014) Between Tanat Siyad Tube Applicant and Attorney General Respondent Ruling 1.This ruling determines the notice of motion dated 31/5/2024 which was filed in June 2026 and was heard on 26th June, 2026. The original case was initially instituted before the ELRC on 7/2/2014 which is nearly 12 years ago, vide a claim dated 16/1/2013. On 30/7/2018, it was transferred to this court. It was dismissed on 10/3/2020 for failure by the petitioner and his advocate to attend court to prosecute it. 2.I now provide the background to the dismissal of the petition. On 8/7/2019, the matter was before E.C Chacha Mwita J (as he then was) when he fixed it for hearing by way of viva voce evidence for 29/10/2019. On the latter date, the respondent was present with witnesses but the petitioner’s counsel informed the court that they had no witness and the court granted parties a final adjournment, fixing the matter for hearing on 10/3/2020, by consent. Mr. Makasi appearing for petitioner. On the latter date, only the respondent’s counsel appeared. The petitioner and his counsel were absent. The respondent had one witness present. 3.The court noted that it had granted a last adjournment when the matter came up for hearing on 29/10/2019 and observed that once again, the petitioner and his advocate were not in court with no explanation being given for their absence, noting that the date was taken in the presence of the representative of the petitioner. The court concluded that the petitioner had lost interest in the matter and dismissed the petition for want of prosecution with no orders as to costs. That was on 10/3/2020. 4.From that date, it was not until 14/5/2026 when the petitioner’s counsel filed a notice of motion dated 31/5/2024. In other words, drawn and signed two years ago, seeking an order for setting aside the order dismissing the petition and praying that the petition be reinstated and be set down on priority basis. 5.The grounds upon which the application is predicated are that the petition was dismissed prematurely without notice upon the claimant/petitioner; that the case was dismissed yet the respondent had sought adjournments on numerous occasions to produce a state witness despite the petitioner being ready to proceed with the matter; that the petitioner had always been ready to prosecute the case which had taken long in this court; and that dismissing this case would prejudice the applicant as it adds trauma to the existing injury to his family. 6.The application is further supported by an affidavit sworn on 31/5/2024 by Ojwang Agina Advocate reiterating the grounds and adding that dismissing the case violates basic provisions of the Constitution of Kenya, 2010. That the applicant was never served with a notice to show cause and that he learnt of the same in June 2023 when requesting the court for a hearing date. That dismissing the suit prejudices him as it adds trauma to the existing injury to his family and that the respondent will not be prejudices in any way by reinstating the suit. 7.There is no appearance by the respondent. 8.I have considered the application dated 31/5/2024, the grounds and supporting affidavit. The order for reinstatement of a dismissed suit or petition as is the case in this matter is discretionary as was held by the Court of Appeal in Tabuche Vs Tinga & 2 others CA E003/2022 [2024] KECA 551 KLR) (24/5/2024) (Judgment) in which the court stated that:“The question as to whether the appellant was entitled to reinstatement of his suit as of right finds answer in Black’s Law Dictionary ( Tenth Edition) which defines judicial discretion as:“The exercise of Judgment by a judge or court based on what is fair under the circumstances and guided by the rules and principles of law; a court’s power to act or not to act when a litigant is not entitled to demand the act as a matter of right.”Reinstatement of a suit dismissed for want of prosecution is a discretionary remedy and not a right. In any event, each case depends on its own circumstances.” 9.On the factors that the court should consider in determining whether to exercise its discretion, the Court of Appeal stated as follows in Kamau & another Vs Inspector General of Police & another [2026] KEHC 1038 (KLR)“We have carefully considered the application. To set aside an order for dismissal, the applicant must jump two hurdles. The first is to make the application within 30 days from the order of dismissal.The applicant has successfully jumped that hurdle. The second is that the applicant must present sufficient cause for the failure to attend court on the appointed date. What will constitute sufficient cause depends on the circumstances of each case. But in our perception, sufficient cause connotes an explanation of such quality or value as would justify setting aside the order of dismissal; a reason that is adequate in law, showing why the applicant’s request to set aside the order of dismissal should be granted.” 10.In Shah Vs Mbogo [1967] EA 1116, the Court of Appeal stated that the discretion to reinstate a dismissed suit is intended to be exercised to avoid injustice or hardship resulting from in advertence or excusable or excusable mistake or error but is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the course of justice. 11.It is important to note that delay defeats equity and equity aids the vigilant and not the indolent. Thus, a party who becomes indolent, even if that party could have had a good case for consideration, the court may decline to exercise discretion in their favour due to laches which is not explained to the satisfaction of the court. 12.In the instant case, and as summarized in the first part of this ruling giving the history of the petition which originated from an ordinary claim before the ELRC, before the matter was transferred to this court by B Ongaya J (as he then was), vide a ruling of 20/7/2018, there was a preliminary objection filed by the respondent, which was dated 27/6/2018 and after the learned Judge had heard the preliminary objection, he transferred the matter to this court; and the matter was received and a new file opened on 30/7/20218 one month later. 13.From then, the 1st time that the petitioner’s counsel appeared in this court to move the court was on 22/1/2019, nearly six months later. A representative from his office was given a mention date for 19/2/2019 for directions and on the latter date, Mr. Bashir counsel for the petitioner asked that the matter be heard by way of oral evidence. The respondent’s counsel also asked for leave to file a supplementary affidavit and the court granted that leave giving 14 days. Hearing was fixed for 8/7/2019. 14.On the latter date, Mr. Agina counsel for the petitioner appeared and said that they were ready with one witness but the respondent’s counsel Mr. Kabi holding brief for Mr. Mugiira submitted that Mr. Mugiira was indisposed. He therefore sought an adjournment. The request was opposed by Mr. Agina, contending that since the matter was fresh, Mr. Kabi could proceed, since the respondent had not indicated that they had a witness and that this was an old matter. 15.This Court, differently constituted, observed that the reason given by the respondent’s Counsel in asking for adjournment could not be ignored and the respondent was given the last adjournment. The court then fixed the petition for hearing on 29/10/2019. On the latter date is when Mr. Makasi holding brief for Mr. Agina submitted that the matter was for directions on the hearing of the petition but that he had noted that it was coming up for hearing. 16.Mr. Biomdo for the respondent stated that the matter was for hearing, the date having been taken on 8/7/20219 in the presence of all the advocates for the parties. That there were no directions being sought, the same having been given on 19/2/2019 and parties had already complied and they had one witness in court, ready to proceed with the hearing. Mr. Makasi stated that they had no witness in court and again, the court granted a last adjournment to the parties, fixing the hearing for 10/3/2020. On the latter date, the petitioner and his advocate were absent. 17.Therefore, when the learned Judge, E.C Mwita J dismissed this petition on 10/3/2020 for want of prosecution due to absence of the petitioner and his counsel, the learned Judge cannot be faulted and neither can the petitioner claim that no notice to show cause was served upon his counsel, as such Notice to show cause was not required in the circumstances. On the 10/3/2020, the Petitioner’s counsel was absent and neither was the petitioner, yet on 29/10/19 the judge made it clear that that was the last adjournment that he was granting the parties in this now very old petition. 18.Furthermore, even after the dismissal of the petition on 10/3/2020, the petitioner’s counsel, from his affidavit in support of the application for reinstatement of the petition, deposes that it was not until June 2023 when requesting the court for a hearing date, over 3 years later, that they learnt that the petition had been dismissed without notice to show cause. 19.As if that is not enough, the petitioner took another 3 years from June 2023 to June 2026 to file an application for reinstatement of the petition dismissed over six years ago and after drawing and signing the application for reinstatement of the dismissed petition, over two years ago on 31st May, 2024. 20.If that is not indolence, then this court does not know how to describe indolence. Be as it may, no reasons have been advanced for failure to attend court on 10/3/2020 and for the inordinate delay of over 6 years before applying to have the dismissed petition reinstated. The grounds for reinstatement do not reflect the true position. 21.The petitioner/applicants is guilty of laches and to the extreme. The delay is unreasonable and prejudicial to the respondent in the sense that the cause of action having arisen in 1982, over thirty years ago, it is obvious that witnesses die, evidence is lost and circumstances change, thereby making it unjust to hear the case. 22.Article 159 (2) (b) of the Constitution mandates that the courts, in exercising Judicial authority, they shall be guided by principles, among others – that justice shall not be delayed. Equity demands that a person whose right are allegedly violated must move with reasonable diligence to seek and prosecute that remedy. Where a party acquiesces to a delay for an unreasonably long time as was in this case, they are deemed to have abandoned their case. This court cannot countenance such indolence as correctly observed by W.M Musyoka J in Olumbe Vs Obanyi CA E014/2024 [2025] KEHC 5386 (KLR) 30 April 2024. Judgment. That -;“8 Whether to reinstate a dismissed suit would call for exercise of discretion in line with Articles 50 and 159 of the Constitution, and the oxygen principle in section 1, 1A, and 3A of the Civil Procedure Act Cap 21 Laws of Kenya. These were discussed in John Nahashon Mwangi Vs Kenya finance Bank Ltd (in liquidation [2015] eKLR 2015 KEHC 6760 (Gikonyo J), where it was stated that the fundamental principle of justice are enshrined in Article 159 of the Constitution, coupled with Article 50, with respect to the right to be heard, and to serve substantive justice to all. It was underscored that those principles ought to be factored when considering reinstatement of dismissed suits, bearing in mind that dismissal of suits is draconian.” 23.Even assuming that the delay was occasioned by mistake of counsel, which is not admitted in this case, since the advocate is merely blaming the court for not issuing notice to show cause for dismissal yet the dismissal was on a date fixed for hearing of the petition when him and his client failed to appear and no explanation given, and as was stated in various cases including Duale Mary Anne Gurre Vs Amina Mohamed Mohammood & another [2014] eKLR, a suit belongs to a litigant who has a duty to pursue prosecution of their case and to constantly check with their advocate on the progress of the matter. 24.In this case, there is no affidavit blaming the advocate who has himself misapprehended the court record by claiming in his affidavit that there was no notice to show cause issued prior to dismissal of the petition, yet no such notice to show cause was necessary. Further, no reasons have been advanced for the six years delay in filing the application for reinstatement of the dismissed petition, which application is dated 2024, a year after discovery of the dismissal and filed over 2 years ago since the application for reinstatement of the petition as dismissed was drafted and a supporting affidavit sworn by the advocate. 25.Although the Mutunga Rules do not provide for dismissal of petitions where no steps have been taken or for failure to attend court on a date fixed for hearing, under Order 12 Rule 7 of the Civil Procedure Rules, the court may dismiss the suit if the parties fail to attend court on any day to which the hearing of the suit is adjourned. The above Rule, in my view is generic and of general application to constitutional petitions. The Rule provides:3.When only defendant attends [Order 12, rule 3] (1) If on the day fixed for hearing, after the suit has been called on for hearing outside the court, only the defendant attends and he admits no part of the claim, the suit shall be dismissed except for good cause to be recorded by the court. (2) If the defendant admits any part of the claim, the court shall give judgment against the defendant upon such admission and shall dismiss the suit so far as it relates to the remainder except for good cause to be recorded by the court. (3) If the defendant has counterclaimed, he may prove his counterclaim so far as the burden of proof lies on him7.Setting aside judgment or dismissal [Order 12, rule 7]Where under this Order judgment has been entered or the suit has been dismissed, the court, on application, may set aside or vary the judgment or order upon such terms as may be just. 26.In Constitutional Petition No. 477 Of 2016 Amos Ledaa Olempaka & 5 others v The Public Service Board Of Baringo & The County Government Of Baringo & Ational Cohesion And Intergration Commission[2021]e KLR,A.N.Makau J(as he then was), faced with a similar application for reinstatement of the Petition which had been dismissed for failure of the petitioner and his advocate to attend court and with no satisfactory reasons given for non-attendance on the hearing date, the learned Judge stated as follows and I concur:“21.It is clear that the burden of proof lies on the applicant seeking Court’s discretion to reinstate a suit to adduce sufficient and plausible reasons that are demonstrable and persuasive to the Court.22.In the instant application, I find, that nothing has been placed before this Court showing that there were unavoidable circumstances that made the Petitioners or their Advocates to fail to attend Court on the hearing date after hearing date had been taken by consent. Reliance is placed in the case of Wachira Karani vs. Bildad Wachira (2016) eKLR where Mativo J, held that:“Sufficient cause is thus the cause for which the Defendant could not be blamed for his absence. Sufficient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances in the case at hand. Here cannot be a straight jacket formulae universal Application. Thus, the Defendant must demonstrate that he was prevented from attending Court by a sufficient cause.23.In addition, I note that in the instant case, there is nothing on record demonstrating that the Petitioners would not have known that their Advocates had not been attending to their matter. How can a Litigant be so ignorant not to ask for update from his Advocates for a period of three years but discover that their suit has been dismissed? If they were able to peruse the Court file and discover their suit had been dismissed, what stopped them form perusing the same Court file to know the progress of the matter and ensure its prosecution before its dismissal? None at all has been advanced.24.The upshot is that the Petitioners/Applicants application dated 26th November 2019 is without merits. The same is dismissed with costs.” 27.In the instant petition, the court had previously granted parties a last adjournment and therefore there is no mistake or error that the court made when it dismissed the suit on the date when it was due for hearing but the petitioner and his advocate were absent. 28.Additionally, the petitioner took three years to discover that the petition had been dismissed. Even then, upon such discovery, he took one year to draw and application and stayed with it signed from 2024 May to June 2026 to file. I pose the same question posed by A.N. Makau J in the above cited case:How can a Litigant be so ignorant not to ask for update from his Advocates for a period of three years but discover that their suit has been dismissed. In Utalii Transport Co. Limited and 3 others vs. NIC Bank and Another (2014) eKLR, the Court held that:“It is the primary duty of the Plaintiffs to take steps to progress their case since they are the ones who dragged the defendant to court.” 29.Similarly, on inordinate inexcusable delay, in Nilesh Premchand Mulji Shah & Another t/a Ketan Emporium vs. M.D Popat & others (2016) eKLR it was held that until a credible excuse is made out, the natural inference would be that an ordinate delay is inexcusable. 30.In the end, I find and hold that the application dated 31/5/2024 is devoid of any merit and the same is hereby dismissed with no orders as to costs. 31.This file is closed. DATED, SIGNED AND DELIVERED AT NAIROBI VIRTUALLY THIS 29TH DAY OF JUNE 2026R.E ABURILIJUDGE