https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12828

Ongono v Transmara Sugar Co.Ltd (Civil Appeal E110 of 2025) [2026] KEHC 12828 (KLR) (6 August 2026) (Judgment) Neutral citation: [2026] KEHC 12828 (KLR) Republic of Kenya In the High Court at Migori Civil Appeal E110 of 2025 WN Molonko, J August 6, 2026 Between Zachary Osiemo Ongono Appellant and Transmara Sugar Co.Ltd Respondent (An Appeal from the Order of Honorable A. Munyuny in Migori CMCC No. 544 of 2018 delivered on 13th August, 2025) Judgment 1.This is an appeal against the order issued by the trial court on 13th August 2025 dismissing the suit for non-attendance. The Appellant contended that the dismissal is against the law and impeded his right of access to justice. He urged the court to set aside the impugned order and reinstate the suit for hearing before another judicial officer of competent jurisdiction. 2.Briefly, the appeal emanates from a dispute instituted through a plaint dated 30th July, 2018 over an agreement/ contract between the Appellant and the respondent for the development of sugar cane where the respondent was to purchase/harvest the sugar cane on maturity. Pursuant to the contract, the Appellant developed sugarcane on a plot measuring 1.2Ha and upon its maturity, requested the respondent to harvest/purchase the subject sugar cane as per the agreement. The respondent unreasonably and in breach of the contract, failed/refused to harvest the plant crop which compromised the subsequent development of the 1st and 2nd ratoon crops. 3.The Respondent’s version was however different. They denied that there was a contract between the appellant and the respondent as from their records, they had no details of the appellant having received any inputs from them for the development of the sugarcane and denied being in breach of any contract with the appellant. 4.The matter came up for hearing on 13th August, 2025 where Counsel for the appellant sought an adjournment to be given time to trace his client through the area chief. He contended that failure to trace the client was occasioned by the long duration which the matter had been in court. 5.The trial court declined to grant the adjournment noting the matter was an old matter and there were no sufficient grounds for adjournment. The trial court noted that the appellant had lost interest in prosecuting the matter and consequently dismissed the suit for non-attendance by the appellant with costs to the respondent. 6.The Appellant being dissatisfied with the Order, has appealed against the Order on the following grounds:i.The learned Magistrate erred in law and fact when she failed to consider the reasons put forth for non-attendance by the Plaintiff on the appointed day for hearing of the case.ii.The learned Magistrate erred in law and fact when she dismissed the Plaintiff's suit for non-attendance despite having been sufficiently notified of the justification for the Plaintiff's absence thereby denying the Plaintiff his right of access to justice. 7.The Appellant prayed for an order reinstating the Plaintiff's suit for hearing and determination before another judicial officer of competent jurisdiction. 8.In his written submissions, the Appellant identified the following issues for determination: Whether the trial court erred in dismissing the suit for non-attendance without considering the reasons advanced for the Appellant’s absence, thereby impeding his right to be heard; and whether the dismissal amounted to an improper exercise of judicial discretion warranting the setting aside of the impugned order and reinstatement of the suit. 9.On whether the first issue, the Appellant submitted that although the consequences of non-attendance are provided for under Order 12 of the Civil Procedure Rules, both parties were represented by Counsel on the hearing date. He argued that the Respondent sought leave to file additional documents and did not oppose the application for adjournment. 10.The Appellant argued that despite the existence of what was described as “good cause” for the Appellant’s inability to attend court, the learned trial magistrate proceeded to dismiss the suit solely on the basis that it was an old matter dating back to 2018. 11.Counsel relied on Richard Ncharpi Leiyagu vs IEBC & 2 Others (2014) eKLR and cited the following passage:“The right to a hearing has always been a well-protected right in our constitution and also the cornerstone of the rule of law. This is why even if the courts have inherent jurisdiction to dismiss suits, this should be done in circumstances that protect the integrity of the court process from abuse that would amount to injustice and at the end of the day there should be proportionality.” 12.The Appellant further pointed out Articles 48 and 159(2)(d) of the Constitution and submitted that judicial discretion ought to be exercised in a manner that guarantees access to justice and the right to a fair hearing without undue regard to procedural technicalities. 13.Counsel referred to the definition of judicial discretion as contained in Black’s Law Dictionary (10th Edition) and submitted that such discretion must be exercised fairly and in accordance with established legal principles. 14.The Appellant also relied on United India Insurance Co. Ltd v East African Underwriters (Kenya) Ltd (1985) eKLR, where he cited the following passage:“The Court of Appeal will not interfere with a discretionary decision of the Judge appealed from simply on the ground that its members, if sitting at first instance, would or might have given different weight to that given by the Judge to the various factors in the case. The Court of Appeal is only entitled to interfere if one or more of the following matters are established: first, that the Judge misdirected himself in law; secondly, that he misapprehended the facts; thirdly, that he took account of considerations of which he should not have taken account; fourthly, that he failed to take account of considerations of which he should have taken account, or fifthly, that his decision, albeit a discretionary one, is plainly wrong.” 15.The Appellant further submitted that the proceedings of 13thAugust 2025 demonstrated that the trial court failed to properly consider the explanation given for the Appellant’s absence. Counsel pointed out that the explanations advanced before the trial court were ignored. He further pointed out that the Respondent’s advocate did not oppose the adjournment and in fact sought leave to file additional documents, thereby demonstrating that the Respondent was also not fully ready to proceed with the hearing. 16.On the second issue, whether the trial court improperly exercised its discretion, the Appellant submitted that the trial court dealt with several matters simultaneously, namely MCCC Nos. 544 of 2018, 545 of 2018, 602 of 2018 and 612 of 2018, and thereafter issued what was described as a collective decision despite the different circumstances applicable to each matter. 17.He argued that the trial court failed to independently evaluate the reasons advanced in each file and instead rendered a blanket decision dismissing all the suits. The Appellant submitted that the court failed to consider the justification advanced on his behalf and proceeded in a manner suggestive of a predetermined outcome. 18.He further contended that the trial court did not evaluate the merits of the application for adjournment and did not separately consider the circumstances of the individual files before issuing the dismissal order. The Appellant argued that the exercise of discretion was whimsical, unfair and inconsistent with the principles governing judicial discretion. 19.He further submitted that although he was absent personally, he was represented by counsel who attended court and explained the reason for his absence. It was argued that neither the explanation given nor the position taken by the Respondent’s advocate received proper consideration before the suit was dismissed. 20.On the other hand, the Respondent, through their written submissions dated 15th May, 2026, submitted that the matter has been pending in court since 2018 and the appellant seems to have lost interest in prosecuting it. 21.On whether the trial court properly exercised its discretion in declining the adjournment and dismissing the suit, the respondent pointed out that Order 12 Rule 3 and Rule 7 of the Civil Procedure Rules, Article 159(2)(b) of the Constitution and Section 1A (1) of the Civil Procedure Act and Order 17 Rule 1 and Rule 3 of the Civil Procedure Rules governs adjournments and non-attendance. He submitted that adjournments are not granted as of right but are discretionary and only available where sufficient cause has been shown. 22.The respondent referred to Shah v Mbogo (no citation given) where the Court held:“Discretion is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake, but not to assist a person who has deliberately sought to obstruct or delay the course of justice.” 23.He submitted that the reasons advanced in support of the adjournment did not amount to sufficient cause. He argued that the matter had initially been fixed for hearing on 26th May 2025 and the appellant was aware of both the proceedings and the subsequent hearing date of 13th August 2025.According to the respondent, the appellant should have remained in communication with his advocate and should have taken steps to ensure attendance. 24.The respondent further submitted that Counsel had ample time to obtain instructions and prepare the appellant for the hearing but failed to do so. It was argued that no affidavit nor any documentary evidence was produced to demonstrate the alleged efforts made to trace the appellant and therefore the explanation fell short of the legal threshold for sufficient cause. 25.On diligence, the respondent submitted that the appellant failed to demonstrate any commitment to prosecuting his claim. He argued that a litigant bears the responsibility of following up on the progress of his case and maintaining contact with counsel. In support of this proposition, the respondent relied on Savings and Loans Limited vs Susan Wanjiru Muritu Nairobi (Milimani) HCCS No. 397 of 2002 where the court stated:“Whereas it would constitute a valid excuse for the defendant to claim that she had been let down by her former advocates failure to attend court on the date the application was fixed for hearing, it is trite that a case belongs to a litigant and not to her advocate. A litigant has a duty to pursue the prosecution of his or her case. The court cannot set aside dismissal of a suit on the sole ground of a mistake by counsel of the litigant on account of such advocate's failure to attend court. It is the duty of the litigant to constantly check with her advocate the progress of her case. In the present case, it is apparent that if the defendant had been a diligent litigant, she would have been aware of the dismissal of her previous application for want of prosecution soon after the dismissal.” 26.The respondent submitted that the appellant knew the hearing date, failed to attend court, failed to communicate with Counsel and could not be traced through his known contacts. He argued that his conduct demonstrated disinterest in pursuing the suit and justified the trial court’s decision to dismiss the matter. 27.The respondent further submitted that litigation cannot be held hostage by an unreachable litigant and that the inability to contact a party who was aware of the hearing date does not constitute an exceptional circumstance warranting an adjournment. He argued that the trial court properly exercised its discretion in dismissing the suit with costs. 28.On prejudice, the respondent submitted that an adjournment would have occasioned injustice to the respondent. He stated that counsel had travelled from Nairobi to Migori together with two witnesses who were ready to testify. The respondent also noted that the appellant’s claim included interest on compensation and that prolonging the proceedings would potentially increase the amount of interest recoverable if the appellant were ultimately successful. He argued that further delay would prejudice the respondent and undermine the principle of expeditious disposal of cases. 29.On costs, the respondent referred to Jasbir Singh Rai & 3 others vs Tarlochan Singh Rai & 4 others [2014] eKLR where the Court stated:“From the jurisprudence in this area of law, the exercise of discretion on costs depends on the facts of each case, and is guided by the principle that costs should follow the event unless the court orders otherwise. Such circumstances as are relevant include; (i) the conduct of the parties, (ii) the subject of litigation, (iii) the circumstances which led to the institution of the proceedings, (iv) the events which eventually led to their termination, (v) the stage at which the proceedings were terminated, (vi) the manner in which they were terminated, (vii) the relationship between the parties and (viii) the need to promote reconciliation amongst the disputing parties pursuant to Article 159 (2) (c) of the Constitution; and (ix) public interest. 30.The respondent submitted that it was the appellant’s conduct in failing to attend court and failing to communicate with his advocate that led to the dismissal of the suit and subsequently the filing of the appeal and therefore the court should award costs of the appeal against the appellant. 31.The respondent maintained that the appellant failed to demonstrate any error of principle, misdirection or sufficient cause warranting an adjournment and therefore prayed that the ruling of the trial court be upheld and the appeal be dismissed with costs. 32.I have considered the record, the grounds of appeal, the rival submissions, the authorities cited by the parties as well as the law. The central issue for this court’s consideration is whether the trial court exercised its discretion in a judicious manner in dismissing the appellant’s suit for want of prosecution. It is trite that this Court can only interfere with the trial court’s discretion if the appellant demonstrated that the court misdirected itself in some matter and as a result has arrived at a wrong decision, or it is manifest that the trial court was clearly wrong as a result of which an injustice occurred. (Mbogo & Another v Shah [1968] EA 96). 33.The constitutional underpinnings on conclusion of matters in a timely manner is contained in Article 159 of the Constitution. It is therefore the duty of the court, litigants, as well as advocates, to ensure that matters are concluded expeditiously without inexcusable delay. 34.Further, Section 3A of the Civil Procedure Act gives the court wide discretion over matters and issues that are before it, including the question as to whether it should or should not reinstate a suit dismissed on account of unreasonable delay on the part of the parties to prosecute it. Section 3A reads:“3A. Nothing in this Act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.” 35.The factors taken into account or consideration for reinstatement of suits were addressed in Ivita vs. Kyumbu [1984] KLR 441, where the court stated that:“The test is whether the delay is prolonged and inexcusable, and, if it is, can justice be done despite such delay. Justice is justice to both the plaintiff and defendant; so both parties to the suit must be considered and the position of the judge too, because it is no easy task for the documents, and, or witnesses may be missing and evidence is weak due to the disappearance of human memory resulting from lapse of time. The defendant must however satisfy the court that it will be prejudiced by the delay or even that the plaintiff will be prejudiced. He must show that justice will not be done in the case due to the prolonged delay on the part of the plaintiff before the court will exercise its discretion in his favour and dismiss the action for want of prosecution. Thus, even if delay is prolonged if the court is satisfied with the plaintiff's excuse for the delay, the action will not be dismissed, but it will be ordered that it be set down for hearing at the earliest available time.” 36.As noted, reinstatement of a suit is at the discretion of the court, which discretion ought to be exercised in a just manner. In Bilha Ngonyo Isaac vs. Kembu Farm Ltd & another & another [2018] eKLR, the court stated that:“The discretion is intended so as to be exercised to avoid injustice or hardship resulting from inadvertence or excusable mistake or error but is not designed to assist a person who has deliberatively sought whether by evasion or otherwise to obstruct or delay the course of justice.” 37.In the instant case, although this Court is not entirely convinced by the arguments put forward by the applicant’s Counsel to explain the non-attendance of his client in court as and when required, and generally the failure to have the matter prosecuted since 2018 when it was filed, it notes from the trial court’s record that the parties were represented by Counsel on the hearing date. I also note that the Respondent’s advocate did not oppose the adjournment and sought leave to file additional documents and would have indulged the other party. 38.This court will, however, in the interests of justice, and so as to give the appellant a second chance, allow the appeal, and reinstate suit. 39.The order of the trail court dated 13th August, 2025 is hereby set aside. The suit shall be set down for hearing on its merits before another judicial officer as a matter of priority. 40.Each party to bear its own costs of the appeal. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 6TH DAY OF AUGUST, 2026………………………………W.N. MOLONKOJUDGEDelivered in the presence of-No appearance for the Applicant.No appearance for the Respondent.Susan Nzioka- Court Assistant