Lowar v Lowar (Environment and Land Appeal 8/[E006] of 2021) [2026] KEELC 2978 (KLR)

6. Further, the applicant deposes that despite such due diligence, it appears personal service is impracticable and hence prays for reinstatement of the appeal and an order to serve the appeal through substituted service. 7. The applicant relies on written submissions dated 2/3/2026. Reliance is placed on Misnak International (UK) Ltd -vs- 4MB Mining Ltd [2019] eKLR, Patel -vs- E.A. Cargo Handling Services Ltd [1974] EA 75, Shah -vs- Mbogo [1967] EA 116, Philip Chemwolo & Another -vs- Augustine Kubede [1982-88] KAR 103, CMC Holdings Ltd -vs- Nzioki [2004] 1 KLR 173, Belinda Murai & Others -vs- Wainaina [1978] eKLR, and Simon Gichangi Mugo -vs- Pierre Asabi Misambi & Others Civil Case No. 107 of 2011, on the principles to be applied on whether or not to set aside and reinstate a dismissal order. 8. The single issue for my determination is whether the application is merited or not. Even where an application is not opposed, such as this one, that does not discharge an applicant from showing suficient cause why the discretion of the court should be exercised in his favor by discharging the burden of proof. 9. This appeal was filed on 9/4/2021. Alongside it, a notice of motion dated 29/11/2021 seeking a stay of execution of the decree of the lower court. The respondent filed a replying afidavit dated 7/12/2021. By a ruling dated 17/2/2022, the appellant was granted a conditional stay of execution to deposit Kshs. 250,000/=, in a joint account, and to file and serve a record of appeal within 180 days, later extended by a ruling dated 5/10/2022. 10. By an application dated 8/11/2024, the court was asked to issue an order for maintenance of the status quo, as the land was undergoing an adjudication process. Later, an order dated 16/4/2020 was issued. The record shows that the respondent’s daughter, one Jane Lochiri, swore an afidavit and attached a chief’s letter from Suwerwa Location. 11. The record of appeal dated 6/9/2024 also contains a certain chief’s letter showing the directions of 29/1/2025, where the appellant was directed to file and serve the record of appeal within 60 days. 12. By the mentioned date of 28/4/2025, the appellant had not complied; hence, leave was extended to file and serve the appeal within 30 days. Again, as of the mentioned date of 17/9/2025, the respondent had not been served with the record of appeal. An extension was made to do so within 14 days. The appeal was also directed to be canvassed by way of written submissions. A mention date to fix a judgment date was given for 9/10/2025. 13. Learned counsel, Mr. Maina, for the appellant, appeared in court on 9/10/2025, and only told the court that he had not served the appeal upon the respondent in person. The appellant did not give any reason why the respondent was not served in person and was directed by the court on 17/9/2025, following an application by the former lawyer that he no longer had instructions to represent the respondent. 14. The court, in the absence of compliance with court orders on service, dismissed the appeal for nonservice. The court was not told of any dificulties in tracing the respondent or any due diligence to trace him from his last known address. 15. Courts are duty-bound by the Constitution and statutes to expedite the dispensation of justice. Indeed, Article 159 of the Constitution emphasizes that justice should not be delayed. Parties are also dutybound to help the court attain its overriding objective. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2978/eng@2026-05-14 2

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16. Whereas an appeal may be dismissed for non- prosecution under Order 42 Rule 20 of the Civil Procedure Rules, Order 42 Rule 21 of the Civil Procedure Rules provides for the re-admission of an appeal if there is suficient cause shown by the applicant. 17. In Ivita -vs- Kyumbu [1984] KLR 441, the court followed Salkas Contractors Ltd -vs- Kenya Petroleum Refineries Ltd [2004] eKLR, that the test to be applied on dismissal also includes if the delay is prolonged. Setting aside a dismissal order is discretionary in nature. In Shah -vs- Mbogo (supra), the court said that the discretion is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not disregarded to assist a person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the cause of justice. See also Philip Chemwolo & Another vs Augustine Kubede (supra), CMC Holding Ltd -vs- Nzioki (supra), and Belinda Murai & Others -vs- Amos Wainaina (supra). 18. Suficient cause or good cause has to be established by the applicant to warrant setting aside. In Attorney General -vs- Law Society of Kenya & Another Civil Appeal Appl. No. 133 of 2011, Musinga J.A., said that the burden is on the applicant to show why a request should be granted or an action excused. The court said that suficient cause must therefore be rational, plausible, logical, convincing, reasonable, and truthful. 19. The court said that it should not be an explanation that leaves doubt in a judge’s mind or leaves unexplained gaps in the sequence of events. In CMC Holdings Ltd -vs- James Nzioki (supra), the court said that in deciding whether or not to set aside, the court should not turn its back on a litigant who clearly demonstrated such an excusable mistake, inadvertence, accident, or error. 20. In Peter Kipkurui Chemoiwo -vs- Richard Chepsergon [2021] eKLR, the appellant had obtained stay orders on 3/10/2012, filed a record of appeal in July 2013, and went to slumber until an application for dismissal of the appeal for want of prosecution was made. The Court of Appeal confirmed the dismissal. See also Richard Nchapi Leiyagu -vs- Independent Electoral Boundaries Commission & 2 others [2013] eKLR, Muchanga Investment Ltd -vs- Safaricom Unlimited African Ltd & Others [2009] eKLR, and Mbogo & Another -vs- Shah [1968] EA 93. 21. In Ivita -vs- Kyumbu (supra), other factors to consider are if the prolonged delay is excusable, whether justice can still be done despite the delay, whether justice is justice to both parties, and the position of both parties must be considered, and the reasons for the delay. 22. Ordinarily, dismissal of suits for want of prosecution is a result of delay in getting them prosecuted. Justice delayed is justice denied. Courts resort to that remedy when the parties are unable or unwilling to prosecute their cases. There can be no justice in filing an appeal and then leaving it unprosecuted. 23. Dismissal of suits or appeals helps unclog and clear the backlog in courts. Pending and unmoving suits or appeals are what generate crisis, mistrust, and lack of confidence in the courts' administration of justice. Compliance with court orders and directives is not optional. 24. In John Nahashon Mwangi -vs- Kenya Finance Bank Ltd in Liquidation [2015] eKLR, the court was of the view that the fundamental principles of justice in Articles 50 and 159 of the Constitution should be considered on whether a dismissal should be reinstated. Where there are no suficient reasons, the court may not reinstate an appeal to deny the respondent from enjoying the fruits of his judgment, as held in James Kamakei Karia -vs- Kashu ole Pere [2026] KEELC 363 [KLR] (29th January 2026) (Ruling). 25. In this application, the applicant does not explain why he did not comply with the court orders to efiect service personally upon the respondent before the dismissal date. Reasons were not given before the dismissal, on the dificulties experienced by the applicant in tracing the respondent. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2978/eng@2026-05-14 3

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26. There is evidence that the respondent’s known address is not in Lokichar but in Kitale. Efiorts to trace him through his known and disclosed relatives in the court record are unsuccessful. The status of the suit land and the one in occupation currently is not mentioned. 27. The applicant has not explained to this court why he only made efiorts after the dismissal and not earlier. The dismissal was on 9/10/2025. 28. The applicant waited until February 2025 to file the application for reinstatement. The delay of another 4 months or so is not explained. 29. Suficient cause must be genuine, plausible, logical, and reasonable. Even if reinstated, the applicant does not know where the respondent is. I do not think the applicant has met the tests. The application is dismissed with no order as to costs. 30. Orders accordingly. RULING DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT KITALE ON THIS 14TH DAY OF MAY 2026. In the presence of: Court Assistant – Dennis No appearance. HON. C.K. NZILI JUDGE, ELC KITALE. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2978/eng@2026-05-14 4

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