https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12104

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAROK** **CIVIL APPEAL NO. E016 OF 2025** **(CORAM: HON. CHARLES M. KARIUKI – J)** **CHINA WU YI............................................................................. APPELLANT /APPLICANT** **-VERSUS** **ERIC LANGAT....................................................................................................RESPONDENT** **RULING** 1. **INTRODUCTION** 2. Before the court for determination is the Notice of Motion dated 27th February 2026 by which the Appellant/Applicant seeks the reinstatement of Narok High Court Civil Appeal No. E016 of 2025, which was voluntarily withdrawn on 29th May 2025 and marked as closed. 3. Consequently, the Applicant also seeks an order of stay of execution of the judgment and decree in Narok CMCC No. 130 of 2018 pending the hearing and determination of the reinstated appeal. The application is anchored on Sections 1A, 1B, 3A and 95 of the Civil Procedure Act, Order 42 Rule 21, Order 45 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules, and Article 159(2)(d) of the Constitution. 4. The Applicant contends that the appeal was withdrawn in good faith upon the mistaken belief that the Employment and Labour Relations Court was the proper appellate forum, but that court subsequently declined jurisdiction. The Respondent opposes the application on the basis that a voluntarily withdrawn appeal ceases to exist in law and cannot be revived, and that the application is merely intended to delay execution of a lawful decree. 5. The court is therefore called upon to determine whether it possesses jurisdiction to reinstate a voluntarily withdrawn appeal and, if so, whether the circumstances of this case justify the exercise of that discretion. 6. **PLEADINGS** 7. **Notice of Motion** 8. The Appellant/Applicant, by the Notice of Motion dated 27th February 2026, seeks orders that the appeal, Narok High Court Civil Appeal No. E016 of 2025, which had been withdrawn and marked as closed, be reinstated and restored for hearing on its merits. The Applicant also seeks an order of stay of execution of the judgment and decree in Narok CMCC No. 130 of 2018 pending the hearing and determination of the reinstated appeal, with costs to abide the outcome of the appeal. The application is premised on the grounds that the appeal was withdrawn in good faith after the Applicant believed the dispute, being a workplace injury claim arising from an employment relationship, fell within the jurisdiction of the Employment and Labour Relations Court. However, the Employment and Labour Relations Court at Nakuru, in ELRC Appeal No. E030 of 2025, subsequently declined jurisdiction, thereby leaving the Applicant without an appellate forum unless the appeal is reinstated. The Applicant contends that the withdrawal was not an abuse of the court process, that reinstatement would serve the interests of justice in accordance with Article 159 of the Constitution, and that the Respondent would suffer no prejudice incapable of being compensated by an award of costs. 9. **Supporting Affidavit** 10. In the supporting affidavit sworn on 27th February 2026, Joe Thuo deposes that the Applicant has complied with the conditions for grant of stay by depositing the entire decretal sum as security pending appeal, annexing proof of the deposit. 11. He avers that the Applicant has satisfied the requirements of Order 42 Rule 6(2)(b) of the Civil Procedure Rules and stands to suffer substantial loss if execution proceeds despite the decretal sum being secured. 12. The deponent further states that the withdrawal of the appeal from the High Court was undertaken in good faith on account of jurisdictional concerns and not as an abuse of the court process. He maintains that the Applicant acted diligently by filing the appeal within time, withdrawing it to pursue what was believed to be the proper forum, depositing the decretal sum, and promptly filing the present application after the Employment and Labour Relations Court declined jurisdiction. 13. He contends that the Respondent will suffer no prejudice because the decretal sum remains secured, and urges the court, in the interests of substantive justice and pursuant to Article 159(2)(d) of the Constitution, to reinstate the appeal for determination on its merits. He further avers that the application was filed without unreasonable delay. 14. **Replying Affidavit** 15. The Respondent, Eric Langat, in his replying affidavit sworn on 7th April 2026, opposes the application dated 27th February 2026, contending that it is devoid of merit, brought in bad faith, and intended solely to delay his enjoyment of the fruits of a judgment delivered over two years earlier. 16. He deposes that the application is incompetent because the Civil Procedure Rules do not provide for the reinstatement of a suit or appeal once it has been voluntarily withdrawn, relying on **Antony Kayaya Juma v Humphrey Ekesa Khaunya & another [2004] eKLR** for the proposition that proceedings terminated by withdrawal cannot subsequently be revived. He avers that the Applicant voluntarily withdrew the entire appeal through a notice of withdrawal dated 29th May 2025, which was duly endorsed by the court and therefore constitutes a final order. He further contends that the intended appeal is incompetent because the memorandum of appeal improperly seeks to challenge not only the ruling delivered on 24th April 2025 but also a decree issued on 19th July 2024 without leave to appeal out of time. 17. According to the Respondent, the incompetence of the appeal equally renders the application for stay of execution untenable. He further accuses the Applicant of deliberately prolonging the litigation, noting that even the trial court had observed the Applicant's lack of diligence in prosecuting the matter. He maintains that the Applicant has not demonstrated good faith, has failed to properly address the issue of security, and has consistently frustrated execution of the decree. 18. The Respondent deposes that he has suffered immense prejudice, financial hardship and emotional distress as a result of the prolonged litigation, particularly because the injuries sustained in the accident led to the loss of a finger, leaving him unable to undertake manual labour and dependent on the compensation awarded by the trial court. He therefore urges the court to find both the application and the appeal fatally defective, dismiss the application with costs, and allow him to finally enjoy the fruits of his judgment. 19. **SUBMISSIONS** 20. **Respondent’s submissions** 21. The Respondent submits that the Notice of Motion dated 27th February 2026 is incompetent, misconceived, and an abuse of the court process as it seeks to reinstate an appeal that the Applicant voluntarily withdrew on 29th May 2025, after which the appeal was marked as withdrawn and the file closed. It is argued that the withdrawal was deliberate and unconditional, and that the present application was only prompted by the Respondent's commencement of execution proceedings. The Respondent contends that under Order 25 of the Civil Procedure Rules, a party who voluntarily withdraws a suit or appeal cannot subsequently seek to "unwithdraw" or revive it, relying on **Antony Kayaya Juma v Humphrey Ekesa Khaunya & another [2004] eKLR**, where the court held that proceedings terminated by withdrawal cannot be reinstated because nothing remains to be revived. Counsel further submits that the court lacks statutory, inherent or residual jurisdiction to reinstate a voluntarily withdrawn appeal, and cites Waminila & another v Republic in support of the proposition that an application to reinstate a withdrawn appeal is untenable. The Respondent maintains that the Applicant has not demonstrated any exceptional circumstances, such as fraud, mistake, duress or other vitiating factors, to justify departure from the principle of finality, and that a mere change of mind or dissatisfaction with the consequences of withdrawal does not constitute sufficient cause for reinstatement. 22. The Respondent further argues that the intended appeal is itself incompetent because the memorandum of appeal improperly challenges both the ruling delivered on 24th April 2025 and a decree issued on 19th July 2024 without obtaining leave to appeal out of time. It is submitted that reinstating such an appeal would be an exercise in futility. Counsel also contends that granting the application would occasion substantial prejudice to the Respondent, who has been kept from enjoying the fruits of his judgment, and would encourage forum shopping, undermine the principle of finality in litigation, waste judicial resources, and perpetuate unnecessary delay. The court is therefore urged to dismiss the application with costs to the Respondent. 23. **ISSUES FOR DETERMINATION** 24. Having considered the pleadings, affidavits and submissions on record, the following issues arise for determination: 25. **Whether this court has jurisdiction to reinstate an appeal that was voluntarily withdrawn and marked as closed.** 26. **If the answer to the first issue is in the affirmative, whether the Applicant has established sufficient grounds for reinstatement of the appeal.** 27. **Whether the Applicant is entitled to an order of stay of execution pending the hearing and determination of the appeal.** 28. **ANALYSIS AND DETERMINATION** 29. **Whether this court has jurisdiction to reinstate a voluntarily withdrawn appeal** 30. The Applicant invokes the inherent jurisdiction of the court, the overriding objective under Sections 1A and 1B of the Civil Procedure Act and Article 159(2)(d) of the Constitution, contending that the withdrawal of the appeal was occasioned by an honest mistake regarding the appropriate appellate forum. It submits that unless the appeal is reinstated, it will be left without an appellate forum after the Employment and Labour Relations Court declined jurisdiction. 31. The Respondent, on the other hand, argues that the appeal was voluntarily withdrawn pursuant to a Notice of Withdrawal dated 29th May 2025, which was adopted by the court, thereby terminating the proceedings. According to the Respondent, the Civil Procedure Rules do not contemplate the reinstatement of a voluntarily withdrawn suit or appeal. 32. The law on withdrawal of proceedings is settled. Order 25 of the Civil Procedure Rules gives a party the liberty to withdraw proceedings. The legal consequence of such withdrawal is that the proceedings come to an end unless the withdrawal itself is impeached on recognized legal grounds. 33. In **Antony Kayaya Juma v Humphrey Ekesa Khaunya & another [2004] eKLR**, the High Court held: *"A suit that has been withdrawn under Order 25 cannot be reinstated. The law does not envisage a litigant seeking an order of reinstatement. Once withdrawn, the proceedings terminate, and nothing remains to be reinstated."* 1. Likewise, in **Waminila & another v Republic**, the court declined to reinstate a voluntarily withdrawn appeal, holding that once an appeal has been withdrawn, it ceases to exist and cannot subsequently be revived merely because the appellant regrets the decision. 2. The principle underlying those authorities is that litigation must attain finality. A deliberate election by a litigant carries legal consequences which cannot ordinarily be undone by a subsequent change of mind. 3. The Applicant nevertheless relies on Article 159(2)(d) of the Constitution and the overriding objective. While courts are enjoined to administer justice without undue regard to procedural technicalities, Article 159 does not empower courts to disregard substantive law or create jurisdiction where none exists. In **Raila Odinga & 5 Others v Independent Electoral and Boundaries Commission & 3 Others [2013] eKLR**, the Supreme Court held that Article 159 was never intended to uproot established legal principles or cure every procedural omission. Similarly, in **Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR**, the Supreme Court emphasized that Article 159 is not a panacea for all procedural defaults and cannot be invoked to circumvent mandatory legal requirements. 4. The Applicant voluntarily elected to withdraw the appeal before this court. That withdrawal was neither alleged nor demonstrated to have been procured through fraud, mistake as to the contents of the withdrawal, coercion, misrepresentation or any other vitiating factor capable of invalidating the act of withdrawal itself. The subsequent decision of another court declining jurisdiction cannot retrospectively invalidate a voluntary procedural step lawfully taken before this court. 5. I therefore find that once the appeal was voluntarily withdrawn and marked as closed, nothing remained pending before this court capable of reinstatement. The court lacks jurisdiction to revive proceedings that had lawfully ceased to exist. 6. **Whether sufficient grounds have been established for reinstatement** 7. Assuming, for purposes of argument, that the court possessed residual jurisdiction, I am nevertheless not persuaded that the Applicant has established sufficient cause for reinstatement. 8. The Applicant explains that it withdrew the appeal because it believed the dispute, being a work injury claim, lay within the appellate jurisdiction of the Employment and Labour Relations Court. Although that explanation may demonstrate an error of judgment, it does not amount to an exceptional circumstance warranting the revival of proceedings that had been deliberately withdrawn. 9. The discretion of the court must always be exercised judiciously and on sound legal principles. In **Mbogo & Another v Shah [1968] EA 93**, the Court of Appeal stated that judicial discretion is intended to avoid injustice resulting from accident, inadvertence or excusable mistake, but not to assist a litigant who has deliberately chosen a particular course of action. 10. The Applicant consciously withdrew its appeal and pursued another forum. That forum ultimately declined jurisdiction. Regrettably, litigation strategy carries inherent risks, and an unsuccessful election does not entitle a party to reverse completed procedural steps. 11. Moreover, reinstatement would undermine the principle of finality of litigation and prejudice the Respondent, who has been kept out of the fruits of his judgment for a considerable period. Courts have consistently recognized that a successful litigant is entitled to enjoy the fruits of a valid judgment unless there exist lawful grounds to interfere with that entitlement. See **Machira t/a Machira & Co. Advocates v East African Standard (No. 2) [2002] KLR 63**. 12. Consequently, I find that the Applicant has failed to demonstrate sufficient cause to warrant reinstatement of the withdrawn appeal. 13. **Whether the Applicant is entitled to stay of execution** 14. The prayer for stay of execution is entirely dependent upon the existence of a competent appeal. 15. Having found that the withdrawn appeal cannot be reinstated, there is no pending appeal upon which an order for stay can properly be anchored. 16. In any event, although the Applicant has demonstrated that the decretal sum was deposited as security, satisfaction of one of the conditions under Order 42 Rule 6(2) of the Civil Procedure Rules cannot, by itself, justify stay where no competent appeal exists. 17. The prayer for stay of execution therefore necessarily fails. 18. **DISPOSITION** 19. In the result, I find that the Notice of Motion dated 27th February 2026 is without merit. I accordingly make the following orders: 20. **The Notice of Motion dated 27th February 2026 is dismissed.** 21. **The prayer for reinstatement of Narok High Court Civil Appeal No. E016 of 2025 is declined.** 22. **The prayer for stay of execution of the judgment and decree in Narok CMCC No. 130 of 2018 is declined.** 23. **The Respondent shall have the costs of the application.** 24. It is so ordered. **DATED, SIGNED, AND DELIVERED AT NAROK, THIS 30TH DAY OF JULY,2026.** **CHARLES KARIUKI** **JUDGE**