Mashudi Ndegwa Kombo & 2 others v Family Bank Limited & 1 other
The bottom line
#The Court of Appeal refused to extend time to appeal because the applicant re-filed an identical, previously dismissed application without disclosing it, an abuse of process.
What this practically means
#Executive summary
#Key legal issues
#Abuse of process by filing a fresh application identical to one previously dismissed, without disclosure
The court accepts that the current application is word for word identical to the dismissed application in Mombasa Civil Application No. E056 of 2024; the applicant neither rebutted its existence and dismissal nor disclosed these facts, amounting to abuse of process.
The 1st respondent deposed, through a sworn replying affidavit, that the applicant had filed an identical extension-of-time application which was dismissed for want of prosecution on 11th July 2024. A copy was annexed. The applicant did not rebut its existence or dismissal, and the court accepted the respondent's assertion as true. Failure to disclose the prior dismissal in the current application aggravated the abuse, disentitling the applicant to the discretionary relief sought.
Correct procedural path after dismissal for non-attendance
The proper remedy is an application for restoration under rule 58(3), requiring the party to show sufficient cause for absence, not a fresh application.
Rule 58(3) permits a party in whose absence an application was determined to apply for restoration or re-hearing upon showing sufficient cause for the non-appearance. The court found it unclear why the applicant did not follow this path. In a restoration application, the party must persuade the court that the reasons for absence were plausible or excusable. Bypassing this route with a fresh application, without disclosure, is an abuse of process.
Legal principles established
#- A party whose application has been dismissed for non-attendance must seek restoration under rule 58(3); filing a fresh application as though none ever existed is an abuse of process
- The Rule 4 discretion to extend time will not be exercised in favour of a party who has abused court process
Court orders
#- 1.The notice of motion dated 26th August 2024 is dismissed with costs to the 1st respondent
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (discretionary power of a single judge to extend time); Rule 58(3) invoked on restoration of dismissed applications
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mashudi Ndegwa Kombo & 2 others v Family Bank Limited & 1 other", Case Analysis (2025). Mombasa Civil Application (not fully stated in judgment; references Mombasa Civil Appeal No. E071 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/926/eng@2025-03-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.