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Court of AppealDismissedMombasa Civil Application (not fully stated in judgment; references Mombasa Civil Appeal No. E071 of 2021)· [2025] KECA 926 (KLR)

Mashudi Ndegwa Kombo & 2 others v Family Bank Limited & 1 other

Court of Appeal of Kenya
7 March 2025
498 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This is a single-judge decision of the Court of Appeal at Mombasa, delivered by F. Tuiyott, JA on 7th March 2025, on a Notice of Motion dated 26th August 2024 seeking extension of time under Rule 4 to file a notice of appeal against the judgment of Lady Justice T.A. Odera delivered on 26th March 2020 in Mombasa Civil Appeal No. E071 of 2021. The 1st respondent opposed the application through a replying affidavit sworn by Joan Gachomba, deposing that the applicant had filed an identical application in Mombasa Civil Application No. E056 of 2024, which was dismissed for want of prosecution on 11th July 2024. A copy of that application was annexed and was shown to be word for word the application before the court; the applicant neither rebutted its existence and dismissal nor disclosed those facts. The court held that the proper course for a party whose application was dismissed for non-attendance is to seek restoration under rule 58(3), showing sufficient cause for the absence, and that filing a fresh application as though none existed is an abuse of process, aggravated by non-disclosure. Exercising the Rule 4 discretion, the judge declined to extend time in favour of a party who had abused process and dismissed the application with costs to the 1st respondent. The decision binds the High Court and subordinate courts on the principle that duplicative, undisclosed re-filing after dismissal constitutes abuse of process disentitling a litigant to discretionary relief.

Key legal issues

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01

Abuse of process by filing a fresh application identical to one previously dismissed, without disclosure

Holding

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.

Reasoning

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.

p. 2
02

Correct procedural path after dismissal for non-attendance

Holding

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.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.