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Court of AppealDismissedCivil Appeal (Application) 24 of 2018

Mbeche (Suing on her behalf and as a representative of the Estate of Araka Rachier Mbeche) v Kihumba

Court of Appeal
10 December 2025
Mohamed Abdulahi WarsameMA WarsameJMJM MativoPGPM Gachoka
1,943 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal refused to reinstate a dismissed certification application, ruling that vague claims of technical problems and unexplained delay don't justify a second chance.

What this practically means

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Executive summary

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This ruling gives reasons for the dismissal of the applicant's notice of motion seeking restoration of her application dated 18th November 2022, which sought certification under Article 163(4)(b) of the Constitution as read with sections 15(1) and 15B of the Supreme Court Act, and which had been dismissed on 16th September 2025 under rule 58(1) of the Court of Appeal Rules, 2022 for non-appearance and failure to file written submissions. The applicant, counselled by Mr Lusi, attributed the non-appearance to technical difficulties in joining the virtual court session and explained the late filing of submissions as a strategy to avoid pre-empting the respondent's response. The respondent opposed, arguing the application had abated under rule 53, that the applicant was indolent, and that the underlying matter was merely a private land dispute already determined in his favour as a bona fide purchaser. The court, comprising Warsame, Mativo and Gachoka JJA, held that reinstatement is discretionary and requires sufficient cause - an explanation adequate in law. It found the applicant's explanation a blanket assertion of technical challenges, noting the practice direction requiring log-in by 8.30 am, and found her conduct laced with laches given the delay in filing submissions after directions issued on 11th January 2024. The motion was dismissed with no orders as to costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant demonstrated sufficient cause for failure to attend the hearing of the certification application and to file written submissions as directed
  2. 2.Whether the dismissed application dated 18th November 2022 should be restored for hearing

Key legal issues

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01

What constitutes sufficient cause under rule 58(3) of the Court of Appeal Rules, 2022

Holding

Sufficient cause is an explanation adequate in law justifying setting aside dismissal; technical difficulties must be particularised, and parties must comply with practice directions on virtual hearings

Reasoning

The court held that what constitutes sufficient cause depends on the circumstances of each case. The applicant offered only a blanket statement of technical challenges without explaining what efforts were made before or after the hearing began, despite the practice direction requiring log-in by 8.30 am to test audio and cameras. Late filing of submissions contrary to directions further undermined the explanation.

p. 4
02

Whether indolence and laches disentitle an applicant from restoration of a dismissed application

Holding

Yes; the applicant's delay in filing submissions after directions were issued amounted to laches, making her undeserving of the court's discretion

Reasoning

Directions were issued on 11th January 2024 but submissions were only filed on 15th September 2024, on the eve of the hearing, contrary to directions. The court invoked Mae Properties and the Madan dictum on mistakes, but found the applicant's conduct laced with laches and declined to exercise its discretion in her favour.

p. 4

Legal principles established

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  • Reinstatement of an application dismissed for non-attendance is an exercise of discretion requiring the applicant to show sufficient cause
  • Sufficient cause means an explanation of adequate legal quality justifying setting aside a dismissal, assessed case by case

Court orders

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  1. 1.The applicant's notice of motion dated 25th September 2024 is dismissed
  2. 2.No orders as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Mohamed Abdulahi Warsame
MA WarsameJA
Currently serving
majority
JM
majority
PG
majority
On appeal from
Court of Appeal
Nairobi Civil Appeal No. 55 of 2018
Jurisdiction invoked
Section 3A & 3B of the Appellate Jurisdiction Act Cap 9 and rules 58(2) & (3) of the Court of Appeal Rules, 2022

Relief refused

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Restoration/reinstatement of the certification application dated 18th November 2022 dismissed under rule 58(1)

Applicant failed to demonstrate sufficient cause for non-appearance and non-compliance with directions; conduct laced with laches

p. 4

Costs

Dismissed with no orders as to costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The decision to reinstate or not to reinstate an application dismissed for non-attendance is an exercise of discretion
p. 3Discretionary nature of reinstatement under rule 58
sucient 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
p. 3Meaning of sufficient cause
Accordingly, we nd that the applicant is underserving the exercise of this court’s discretion in her favour.
p. 4Outcome - discretion refused
The upshot is that the applicant’s notice of motion dated 25th September 2024 is hereby dismissed with no orders as to costs.
p. 4Final orders and costs

Issues in the judgment

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minor

Date of the restoration application inconsistent

minor

Notice of motion date inconsistent between body and disposition

minor

Affidavit date precedes the application it supports

minor

Dismissed application date inconsistently stated

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, "Mbeche (Suing on her behalf and as a representative of the Estate of Araka Rachier Mbeche) v Kihumba", Case Analysis (2025). Civil Appeal (Application) 24 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2204/eng@2025-12-10

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.