Mumbo & another

4. Further that despite a Judgment date being issued on 13/02/2024 it took the Plainti/Applicant four (4) months to le the application seeking to arrest the Judgment and to set aside the Court’s proceedings of 14/03/2024. 5. That since there is no review and or discovery of new information the application is for dismissal. The Respondent has also sought compensation of throw away costs in the event the Court is inclined to arrest the Judgment and set aside the orders thus reinstate the Plainti’s suit. 6. I have considered the rival positions of the parties herein. The Counsel for the Plainti has explained the reason for his inability to attend Court which led to the dismissal of Plainti’s case and the Court proceeded with the Counter-claim exparte. On 14/03/2024 the Court issued directions on the delivery of Judgment and these are the orders the Applicant is seeking to have set aside. In other words, the Applicant is seeking to arrest the Judgment and have the case of the Plainti reinstated. 7. It is true that the Defendant’s Counter-claim was heard a date for Judgment reserved. The Advocate for the Plainti has admitted that his client was not at fault at all, and states that if there is any fault for the failure to set down the suit for hearing, it should be squarely blamed on him. 8. The Plainti on the other hand states that he is, and has always been keen on pursuing the suit and that the dismissal order was made without any fault on his part. 9. On her part the Respondent vide the Replying Adavit advance the position that, the Plainti has not shown sucient cause to warrant the orders sought and therefore the application is without merit, misconceived and gross abuse of the Court process. It is also submitted that the delay in prosecuting the suit shows gross indolence on the part of the Plainti, and no evidence has been presented to show that the Plainti’s Advocate made any attempts to nd out why the Court was not proceeding online. The application was also led four months since the issuance of the directions the Applicant seeks to set aside and that delay is inordinate. 10. The orders sought by the Plainti are discretionary which discretion shall be exercised judicially. It is true that this suit was led in 2022 and pleadings closed. 11. From the material presented, notwithstanding the delay in the prosecution of this suit, it is clear the notice under Order 17 rule 2 (1) of the Civil Procedure Rules was received by the Advocate for the Plainti. It is not surprising therefore that, when the suit was called out on 18th May, 2018 only the Advocate for the Defendant appeared. 12. The major issue I should determine is whether the failure to attend Court herein has been explained such that this suit ought to be reinstated for trial. The law governing dismissal of suit for want of prosecution cannot be called upon to justify itself; it is well settled. I am content to cite a work of this Court in the case of Nbi HCCC No Utalii Transport Company Limited & 3 Others V Nic Bank & Another [2014] eKLR that When the Applicant states and correctly so, that: ‘’It is the primary duty of the Plaintis to take steps to progress their case since they are the ones who dragged the Defendant to Court’’. Then exhorts that ‘’Over one year has lapsed without the Plaintis taking any step to progress their case’’. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18664/eng@2025-10-28 2

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And makes a strong conclusion that ‘’The Plaintis’ inertia runs contra to the overriding objective of the Court stipulated in section 1A, 1B and 3A of the CPA.” 13. Whereas one would feel prompted to quickly remove out of the way of the innocent party the bottleneck that would impede their access to the seat of justice, the law prohibits a Court of law from impulsive inclination, and requires it to make further enquiries into the matter under the guide of dened legal principles on the subject of dismissal of cases for want of prosecution; a view which is undergirded by the fact that dismissal of a suit without hearing the merits is draconian act which drives the Plainti from the Judgment-seat. 14. It is, therefore, a matter of discretion by the Court. See the opinions of Danckwerts, LJ in Nagle V Fielden [1966] 2 QBD 633 at p 648, and Lord Diplock in Birket V James [1978] A.C. 297. A great number of cases in the Court of Appeal have adopted that approach but I do not wish to multiply them. Accordingly, I will discern the principles which the law has developed to guide the exercise of discretion by Court in an application for dismissal of suit for want of prosecution. These principles are: 1. Whether there has been inordinate delay on the part of the Plaintis in prosecuting the case; 2. Whether the delay is intentional, contumelious and, therefore, inexcusable; 3. Whether the delay is an abuse of the Court process; 4. Whether the delay gives rise to substantial risk to fair trial or causes serious prejudice to the Defendant; 5. What prejudice will the dismissal occasion to the Plainti? 6. Whether the Plainti has oered a reasonable explanation for the delay; 7. Even if there has been delay, what does the interest of justice dictate: lenient exercise of discretion by the Court? 15. There is no precise measure of what amounts to inordinate delay. Inordinate delay will dier from case to case depending on the circumstances of each case; the subject matter of the case; the nature of the case; the explanation given for the delay; and so on and so forth. Nevertheless, inordinate delay should not be dicult to ascertain once it occurs; the litmus test being that it should be an amount of delay which leads the Court to an inescapable conclusion that it is inordinate and therefore, inexcusable. Caution is, however, advise for Courts not to take the word ‘’inordinate’’ in its dictionary meaning, but to apply it in the sense of excessive as compared to normality. 16. Therefore, inordinate delay for purposes of dismissal for want of prosecution should be one which is beyond acceptable limits in the prosecution of cases. See the case of Allen V Alfred Mcalphine & Sons [1968] 1 All ER 543: where a delay of fourteen (14) years was considered inordinate and inexcusable. But see also the cases of Agip (Kenya) Limited V Highlands Tyres Limited [2001] KLR 630 and Sagoo V Bhari [1990] KLR 459, where delay of eight (8) months and ve (5) months, respectively was considered not to be inordinate. And also NBI HC ELC Case NO 2058 OF 2007 where delay of about 1 ½ years was considered not to be inordinate. 17. In the instant case the gist of the application is not so much on the delay although this issue was raised by the Respondent who views the delay of 4 months before bringing this application to Court to be inordinate. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18664/eng@2025-10-28 3

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18. However, the issue in the instant application is that the Counsel failed to attend Court leading to the dismissal of the suit. The Counsel also explains that he experienced a challenge of network interruption due to a power outage. 19. I admit that a party should always take steps to progress his case to logical conclusion. That is a requirement of justice and the overriding objective in assisting the Court to attain expeditious and just disposal of cases which follows after the long-standing adage; justice delayed is justice denied. So, where the Plainti fails to attend Court to prosecute their case, they occasion injustice on the Defendants. But Courts of law are Courts of justice to all the parties. And as I stated earlier, dismissal of a case is a draconian judicial act which drives the Plainti away from the seat of Judgment. It should be done sparingly and in cases where dismissal is the feasible and just thing to do. Therefore, Courts should strive to sustain suits rather than dismiss them especially where justice would still be done and fair trial had despite the delay. Any explanation given for failure to attend Court to prosecute a case should be properly evaluated by the Court to see whether it is reasonable. 20. That notwithstanding, a Court of law should not hesitate to dismiss a suit for want of prosecution where it strongly feels the sustenance of the suit will only breed extreme prejudice to the Defendant. But in ascertaining prejudice to the Defendant, it must also weigh the prejudice the dismissal will cause to the Plainti. The balance thereof need not be symmetrical, but the impulsion should come from the dictates of justice and where need be, the suit should be sustained. 21. Looking at the material before me and the explanation oered, I think the explanation oered is reasonable. A further re-consideration of the circumstances of the case also reveals that the delay herein has not given rise to substantial risk to fair trial or resulted into grave injustice to the Defendant. The hearing of the Plainti’s case is still possible without causing injustice or extreme diculties in the trial. 22. For re-instatement of suit to give rise to substantial risk to fair trial or result into grave injustice to the Defendants, the Defendant must show he suered some additional prejudice which is substantial and results to 1) impending fair trial; 2) aggravated costs; or 3) specic hardships to the Defendant. It must also be shown that the delay has worsened the Defendant’s position in the suit. It will not, therefore, be sucient to just make a general assertion that you will suer prejudice without showing the particular prejudice as spelt out herein above. This thought derives legitimacy as a principle of law drawing upon the Constitution; promoting access to justice; enforcing the principles of justice especially on substantive justice in Article 159 of the Constitution; and achieving just resolution of disputes led in Court through a fair and public hearing in accordance with Article 50(1) of the Constitution. See the opinion of Russel L.J. in William C. Parker Ltd V F.J. Ham & Sons at p 1586 which was quoted in Birket V James p 335. 23. In assessing the prejudice caused to the Defendant by the delay, the Court should also assess the likely prejudice the dismissal of the suit will occasion upon the Plainti. See Allen V Alfred Mcalphine, Birket V James [supra]and Agip (Kenya) Ltd [supra]. The prejudice to the Plainti will be ascertained by looking at a number of varying factors which, among the major ones are: the nature of the case - e.g. public litigation, representative suit etc., importance of the claim or subject matter, legal capacity of parties, rights of the parties in the suit and so on. The cause of action in this case is quite substantial and raises serious issues of ownership of land. 24. As we already know ownership of land in Kenya is an emotive issue and it is only fair that both sides of the divide should have their day in Court and on seat of justice. The defence in its Counter-claim raises serious allegations against the Plainti with regard to the suit property. In law the Counter-claim survives on dismissal of the suit and Order 7 rule 13 is instructive thereto; a fact that gives this case a dierent dimension and which makes it desirable that the suit is reinstated. These matters will squarely https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18664/eng@2025-10-28 4

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and truly be considered by the Court if the case is heard on merit in order to avoid a miscarriage of justice. 25. Consequently, upon the analysis of all legal considerations, it is clear the direction the Court is taking on this matter. Accordingly, I set aside the order issued on 14/03/2024 for delivery of Judgment. The Plainti’s suit is re-instated; alive and kicking provided that the Plainti complies with all preparatory or any peremptory requirements of the law in order to progress the case before the Court. 26. Since the Plainti is the author of the state of aairs in this case I direct as follows: a. Plainti’s suit is reinstated for hearing on merit. b. Mention on 18/11/2025 for further directions. c. The Plainti to pay throw-away costs of Kesh 10,000. d. Failure to comply with (c) above will render prayer (a) and (b) a nullity and the suit will stand dismissed. e. To ensure expeditious disposal of the suit, the parties herein shall comply with the provisions of Order 11 of the Civil Procedure Rules within 20 days from the date of this Ruling. Upon compliance, the matter shall be mentioned on 18/11/2025 to conrm compliance and to take a hearing date, the suit shall be heard on priority basis. f. The costs shall be in the cause. It is so ordered. DATED, SIGNED AND DELIVERED AT THIKA THROUGH MICROSOFT TEAMS ON THIS 28TH DAY OF OCTOBER, 2025. .......................... MOGENI J JUDGE In the presence of Plainti – Absent Mr. Sichangi for the Defendant Interested Party - Absent Mr. Melita – Court Assistant ........................... MOGENI J JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18664/eng@2025-10-28 5

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