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Factual Background. 4. 5. The Plaintifi/Applicant commenced the present proceedings vide the Originating Summons dated 6th June, 2019. The said originating summons were amended on 3rd February, 2022 and the Plaintifi/ Applicant sought determination of the following questions; a. Whether the Plaintifi is entitled to 3.3 acres of land comprised in LR No. Kericho/Ndubai/344 registered in the name of Edison Rutoh by virtue of the Plaintifi’s adverse possession of the same in open, quiet and peaceful occupation for a period of over 25 years. b. Whether the said Plaintifi should be declared as the proprietor of the said 3.3 acres in the suit property, LR No. Kericho/Ndubai/344, currently registered in the name of Edison Rutoh. c. That the costs of this suit be provided by the Defendants (sic). The Plaintifi/Applicant also sought for the following orders; a. A declaration that the Plaintifi is entitled to exclusive and unimpeded right of possession and occupation of 3.3 acres out of all that piece of land known as LR No. Kericho/Ndubai/344. b. An order directing the Land Registrar, Kericho to have Plaintifi registered as the sole proprietor of 3.3 acres out of all that piece of land known as of (sic) LR No. Kericho/Ndubai/344. c. A permanent order restraining the Defendant from entering, alienating, wasting, damaging, disposing or in any other way dealing with the suit land. d. Costs of this suit. 6. The Respondent filed a Replying Afidavit sworn on 16th August, 2019 in response to the Originating Summons. 7. The matter came up for hearing on 22nd January, 2025 when it was dismissed for want of prosecution. 8. The application under consideration first came up for hearing on 7th October, 2025 and the Court issued directions that it be heard by way of written submissions. 9. On 2nd December, 2025 it was mentioned to confirm filing of submissions and on the said date, Counsel for the Defendant/Respondent waived her right to file submissions. The matter was then reserved for ruling. The Plaintifi/Applicant’s Contention. 10. The afidavit in support of the application is sworn by Joshua Kipkemoi Mutai Counsel for the Plaintifi/Applicant. 11. He contends that this matter was dismissed for want of prosecution on 22nd January, 2025. 12. He also contends that the Plaintifi/Applicant commenced the present proceedings vide the Originating Summons dated 7th June, 2019 which were amended on 3rd February, 2022. 13. He further contends that parties complied with Order 11 of the Civil Procedure Rules and the matter was then fixed for hearing on 22nd January, 2025. 14. It is his contention that on 21st January, 2025 he called counsel for the Defendant/Respondent to find out if she was ready to proceed with the hearing. He goes on to state that the Plaintifi/Applicant is of meager means and he resides together with his witnesses in Mulot, Bomet County. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1378/eng@2026-03-05 2

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15. It is also his contention that Counsel for the Defendant/Respondent informed him that she will not be ready to proceed as she lost touch with her client. 16. It is further his Contention that Counsel for the Defendant/Applicant informed him that she intended to file an application to cease acting. 17. He contends that he implored Counsel for the Defendant/Respondent not file the said application as it will lead to the matter taking long to be concluded considering the fact that the Plaintifi/Applicant and his witnesses are getting old and sickly. 18. He also contends that Counsel for the Defendant/Respondent then stated that she will seek an adjournment as she puts her house in order. 19. He further contends that based on the said discussion, he informed the Plaintifi/Applicant that the matter will not proceed. 20. It is his contention that when the matter came up for hearing on 22nd January, 2025, he informed the Court of the discussion he had had with Counsel for the Defendant/Respondent. 21. It is also his contention that the Court placed the file aside for hearing at 10:30 am. He goes on to state that the matter would not have proceeded as the Plaintifi/Applicant had not travelled from Bomet. 22. It is further his contention that Counsel for the Defendant/Respondent changed tune and informed the Court that she was ready to proceed. 23. He contends that based on the foregoing, it is clear that it was neither his intention nor the Plaintifi/ Applicant’s intention to have the matter adjourned. He goes on to state that the delay was caused by miscommunication with Counsel for the Defendant/Respondent. 24. He also contends that the Plaintifi/Applicant will sufier loss if the suit is not reinstated as he has already paid Court fees. 25. He ends his deposition by praying that the Court reinstates the suit so that the Plaintifi/Applicant can have his day in Court. He adds that the Court should not allow mistake of Counsel to afiect the rights of parties. The Defendant/Respondent’s Response. 26. In response to the Plaintifi/Applicant’s application, the Defendant/Respondent filed a Replying Afidavit sworn by Nelly Chelimo Koskey his Counsel. 27. She deposes that on 1st December, 2025, she was checking the cause list when she discovered that this matter was listed for mention on 2nd December, 2025. 28. She also deposes that she checked the CTS and found out that the application under consideration had been filed. She goes on to state that the said application was never served upon them to enable them file a response. 29. She further deposes that the afidavit in support of the application contains allegations that are not true and goes on to state that she has always been ready to proceed with the hearing of this suit. 30. It is her deposition that every time this matter came up for hearing, Counsel for the Plaintifi/Applicant was not ready to proceed and the matter was therefore adjourned severally. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1378/eng@2026-03-05 3

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31. It is also her deposition that she had no intention to cease acting for the Defendant/Respondent and also states that if that was the case, then she would have informed the Court. 32. It is further her deposition that on 25th of September, 2024, the matter came up for hearing and Counsel for the Plaintifi/Applicant was not ready to proceed which caused the matter to be adjourned and the Plaintifi/Applicant given a last adjournment. 33. She also deposes that subsequently, the matter came up for hearing on 22nd January, 2025 and Counsel for the Plaintifi/Applicant was present when the Court set the matter for hearing at 10:30 am in open Court. 34. She further deposes that she went to open Court and out of Courtesy called Counsel for the Plaintifi/ Applicant to come to Court. 35. It is her deposition that she and the Court waited from 10:30 am to 11:30 am but Counsel for the Plaintifi/Applicant did not come to Court. 36. It is also her deposition that the allegations made by Counsel for the Plaintifi/Applicant are untrue, baseless and are intended to mislead this Court. 37. It is further her deposition that Counsel for the Plaintifi/Applicant’s intention is to blame her for his actions and adds that it is why he did not serve her with the application under consideration. 38. She ends her deposition by stating that the Court record can bear her witness that she was diligent, vigilant and intentional with her client’s case and intended to prosecute the matter to its finality. Issues for Determination. 39. The Plaintifi/Applicant filed submissions on 1st December, 2025 while the Defendant/Respondent elected not to file submissions. 40. The Plaintifi/Applicant submits on whether the Court should exercise its discretion, set aside the dismissal order and reinstate the suit for hearing. 41. The Plaintifi/Applicant relies on Sections 1A, 1B & 3A of the Civil Procedure Act, Order 17 Rule 2 of the Civil Procedure Rules and submits that the Court has the discretion to reinstate a suit which has been dismissed where suficient cause is shown. 42. The Plaintifi/Applicant relies on the judicial decisions of Mwangi S. Kaimenyi vs Attorney General & another [2014] eKLR, Tirus Njoroge vs Kenya Revenue Authority [2023] eKLR and submits that he has demonstrated diligence and readiness in having this matter heard and determined. 43. The Plaintifi/Applicant also submits that the suit was filed in the year 2019 and in the year 2022 he sought and was granted leave to amend the Originating Summons. 44. The Plaintifi/Applicant then reiterates the averments in the afidavit in support of the application and submits that when the suit was dismissed on 22nd January, 2025, he promptly filed the application under consideration on 24th January, 2025. 45. It is the Plaintifi/Applicant’s submissions that this demonstrates eagerness to have this matter heard and determined. 46. The Plaintifi/Applicant relies on the judicial decision of Patrick Wanyonyi vs Kiprono Chepkwony [2024] eKLR and submits that the Defendant/Respondent will not be prejudiced if the suit is reinstated. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1378/eng@2026-03-05 4

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47. The Plaintifi/Applicant submits that if the suit is not reinstated, he stands to sufier irreparable loss as the dispute herein is over their family land which is their only home. 48. The Plaintifi/Applicant relies on Articles 50(1) & 159 (2)(d) of the Constitution and submits that his witnesses are elderly and frail and filing of a fresh suit will delay justice. 49. The Plaintifi/Applicant concludes his submissions by urging the Court to allow his application as prayed. Analysis and Determination. 50. I have considered the Plaintifi/Applicant’s application, the response thereto and the submissions. The only issue that arises for determination is whether the application dated 24th January, 2025 has merit. 51. The Plaintifi/Applicant contends that the present suit was scheduled for hearing on 22nd January, 2025. 52. The Plaintifi/Applicant also contends that his Counsel reached out to Counsel for the Defendant/ Respondent on 21st January, 2025 who informed him that she intended to file an application to cease acting as she lost touch with her client. 53. The Plaintifi/Applicant further contends that based on the said information, he did not travel to Court on 22nd January, 2025. 54. It is the Plaintifi/Applicant’s contention that surprisingly on 22nd January, 2025, Counsel for the Defendant/Respondent informed the Court that she was ready to proceed and since he was absent, the suit was dismissed for want of prosecution. 55. The Plaintifi/Applicant therefore seeks that the suit be reinstated and he be given an opportunity to prosecute his case. 56. In response, Counsel for the Defendant/Respondent denies that any such discussions took place on 21st January, 2025. She contends that she has always been ready to proceed with the hearing of this suit. 57. Order 12 Rule 3 (1) of the Civil Procedure Rules provides as follows; “ 1. 58. Order 12 Rule 7 of the Civil Procedure Rules provides as follows; “ 7. 59. If on the day fixed for hearing, after the suit has been called on for hearing outside the Court, only the defendant attends and he admits no part of the claim, the suit shall be dismissed except for good cause to be recorded by the Court.” Where under this Order judgment has been entered or the suit has been dismissed, the Court, on application, may set aside or vary the judgment or order upon such terms as may be just.” (Emphasis mine) In the judicial decision of HAM v SOS [2021] eKLR the Court observed as follows; “ 9. In an application for reinstatement of a dismissed suit or application, an applicant appeals to the discretion of the Court. The Court must caution itself not to exercise its discretion in a manner that will result in an injustice.” (Emphasis mine) https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1378/eng@2026-03-05 5

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60. In the judicial decision of Fidelity Shield Insurance Comapny (sic) Limited v Architects & another [2025] KEHC 9989 (KLR) the Court held as follows; “ Reinstatement of a suit dismissed for want of prosecution is a discretionary remedy that the Court must exercise judiciously. This is of course taking cognizance of the unique circumstances of the case. Article 50[1] of the Constitution guarantees every party the right to a fair trial. Giving an opportunity to a party to present its case is at the heart of the constitutional imperative of fair trial.” (Emphasis mine) 61. A perusal of the Court record shows that on 25th September, 2024, this suit came up for hearing. Counsel for the Plaintifi/Applicant informed the Court that he was not ready to proceed as he was not able to reach his client. Counsel for the Plaintifi/Applicant then sought for a last adjournment. The hearing was adjourned and the adjournment was marked as the last. The suit was rescheduled for hearing on 22nd January, 2025. 62. On 22nd January, 2025, Counsel for the Plaintifi/Applicant and the Defendant/Respondent appeared virtually during the call over and the hearing was confirmed and set to proceed at 10:30 am. 63. At 11:30 am, the Court issued the following directions; “ This matter is for hearing. It was in Court on 25th September, 2024 and marked as a last adjournment. Counsel for the Plaintifi was present during the call over in the morning and was informed that the matter would proceed at 10:30 am. We have been waiting for over one hour and neither him nor his clients are present in Court. Consequently, this suit is dismissed for want of prosecution with costs to the Defendant.” 64. From the Court record, it is evident that Counsel for the Plaintifi/Applicant was given a last adjournment on 25th September, 2024. 65. It is also evident that Counsel for the Plaintifi/Applicant failed to show up in open Court on 22nd January, 2025 at 10:30 am when the matter was scheduled to proceed for hearing. 66. The Plaintifi/Applicant submits that he filed the application under consideration on 24th January, 2025 which is soon after the suit was dismissed. This is a misrepresentation. A perusal of the application under consideration shows that it is dated 24th January, 2025 and it was filed in Court on 17th June, 2025. 67. A further perusal of the Court record shows that a representative of Counsel for the Plaintifi/ Applicant went to the registry on 24th July, 2025 and fixed the application under consideration for hearing on 7th October, 2025. 68. It is therefore evident that there was a delay of about five months in the filing of the application under consideration. 69. The Plaintifi/Applicant has not given an explanation as to the delay in its filing and has instead contended that it was filed on 24th January, 2025. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1378/eng@2026-03-05 6

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70. In the judicial decision of Stephen Ndichu v Monty’s Wines and Spirits Ltd [2006] KEHC 3445 (KLR) the Court held as follows; “ …The discretion is free and the main concern of the Court is to do justice to the parties before it (See Patel v EA Cargo Handling services Ltd (1974] EA 75). The discretion is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error but is not designed to assist a person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the cause of justice (see Shah v Mbogo [1969] EA 116).” (Emphasis mine) 71. The above cited judicial decision gives reasons for exercising discretion in favour of a party seeking to reinstate a suit dismissed for want of prosecution. The reasons given are so as to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake. The Court also held that the discretion of the Court is not designed to assist a person who has deliberately sought to delay the cause of justice. 72. In seeking that the present suit be reinstated, the Plaintifi/Applicant is appealing to the discretion of the Court. 73. It is evident that there has been inordinate delay in the filing of the application under consideration and also no explanation has been given for the delay in prosecuting this suit since it was filed in the year 2019. 74. Further, the reasons advanced by Counsel for the Plaintifi/Applicant for the Plaintifi/Applicant’s failure to attend Court on 22nd January, 2025 have been disputed by Counsel for the Defendant/ Respondent. 75. It is important to note that Counsel for the Plaintifi/Applicant has not given any explanation as to why he did not appear in open Court on 22nd January, 2025 as directed by the Court during the call over and in his presence after the suit was confirmed for hearing at 10.30 am on the said date. Disposition. 76. No reasonable explanation has been given for the Plaintifi/Applicant’s failure to attend Court given that this suit was pending since the year 2019. Justice delayed is just denied and in my estimation, delayed justice is prejudicial to the Defendant/Respondent. 77. Taking the foregoing into consideration, I find that the application dated 24th January, 2025 lacks merit and it is hereby dismissed with costs. 78. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT KERICHO THIS 5TH DAY OF MARCH, 2026. L. A. OMOLLO JUDGE. In the presence of: Miss Chelimo for Mitei for Respondent. Mr. Mutai for the Applicant - Absent. Court Assistant; Mr. Joseph Makori. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1378/eng@2026-03-05 7

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