Murithi v Banita Real Estate Ltd & 7 others

3. The applicant relies on written submissions dated 20.1.2026, while the respondent relies on written submissions dated 26.1.2026 and 27.1.2026. 4. The 2nd respondent has placed reliance on; i. Lalji Bhimji Sanghani Builders & Contractors vs City Council of Nairobi (2012) eKLR, ii. John Langat vs Kipkemoi Terer & 2 Others (2013) eKLR, iii. Utalii Transport Company Limited & Others vs NIC Bank Limited & Another (2014) eKLR, iv. Anders Bruel T/A Queens Cross Aviation VS Nyambura Musyimi & Others (2015) eKLR, v. Brooke Bond Liebig (T) Ltd vs Mallya (1975) EA 266, vi. Flora N.Wasike vs Destimo Wamboko (1988) eKLR, vii. Nicholas Kiptoo Arap Salat vs IEBC & 7 Others (2014) eKLR and viii. Muchanga Investment Ltd vs Safaris Unlimited (Africa) Ltd & 2 Others (2009) eKLR. 5. A court retains the discretion to set aside or reinstate a dismissed suit if sucient cause is shown. In this application, the reason is sickness on the part of the applicant. The attached medical reports to the application bear a dierent date and do not show that the applicant was medically incapacitated on the hearing date. There is no evidence availed that the applicant had tried to inform the court about her status. 6. There has been an unexplained inordinate delay in ling the application after the dismissal. Afterwards, the applicant entered into a binding consent on costs with the respondent. 7. The applicant’s past conduct reveals a pattern of non-attendance, lack of diligence and disregard of court directives. 8. The court record shows that this suit was led on 28/07/2020 vide a plaint dated 22/7/2020 and an application for interim orders of injunction dated 24.7.2020 and allowed on 10.5.2021. The same was heard and determined by a ruling dated 28.4.2022. 9. Parties were thereafter directed to comply with Order II of the Civil Procedure Rules on 6.6.2022 and on 4.8.2022, respectively. A hearing date was taken by consent for 20.2.2023 on 18.10.2022. The plainti was not ready for hearing that day on account of sickness. It was adjourned for hearing on 8.6.2023. Learned counsel for the plainti was not ready, for he had led an application to cease acting for the plainti, which was placed for hearing on 12.7.2023. Since the applicant had been served, the application was allowed. 10. A hearing date was then xed for the main case on 16.11. 2023. The matter was rescheduled for 25.1.2024 when the plainti did not show up. 11. Despite personal service on 20.11.2023, as per an adavit dated 17.1.2024 on court records. The court acceded to the request by the defendants to have the matter dismissed for non-attendance. 12. A bill of costs was led by the defendants. On 23.3.2025, the plainti engaged a counsel who sought time to get instructions. He instead led the instant application. 13. Order 9 Rule 9 C.P.R. is in mandatory terms. There is no evidence that, after the former law rm was allowed to cease acting, a new law rm came on record for Order 9 Rule 9 CPR to be invoked. The https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5596/eng@2026-09-16 2

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court, in the circumstances, nds no basis to hold that the incoming lawyers oended the law on a change of legal representation. 14. A court under Order 17 CPR may dismiss a suit for non- attendance of the plainti at the hearing. 15. Order 12 Rule 3 of the Civil Procedure Rules relates to cases where only the defendant attends the hearing and does not admit the plainti's case. If good cause is shown, the court may not dismiss the plainti's suit. 16. In the instant suit, the plainti was acting in person. She had also been served with a hearing notice and an adavit led to that eect. The applicant is not disputing that the former law rm had ceased acting for her for lack of instructions and was, at the time of the dismissal, acting in person. 17. The applicant does not deny that she was notied of and was aware of the hearing date. In the circumstances, the plainti applicant cannot argue that she had notied any law rm of her predicament, such as sickness. 18. The plainti alleges, as held in Philip Chemwolo & Another vs Augustine Kahbete (1982) KLR, that there was mistake of counsel. The court nds no such mistake of counsel. 19. In CMC Holdings Ltd vs James Mumo Nzioka (2004) eKLR, the court held that in exercising its discretion, the court should ensure that a litigant does not suer hardship on account of, among others, excusable mistake or error, inadvertence or accident that has been demonstrated to the satisfaction of the court. 20. In this application, the medical report relied upon by the applicant is dated 2021 and not 2024, when the matter was dismissed for non-attendance. Mistakes of counsel can only be excused when the errors in question do not show any negligence or where eorts are made to correct them, as was held in Tana River Development Authority vs Jeremiah Kimisho Mwakio & Others (2018) eKLR. 21. Whether to reinstate or not reinstate a dismissed suit is an exercise of discretion under Order 17 Rule of C.P.R as read together with Article 50 and 159 of the Constitution, sections 1 A, 1B and 3 A of the Civil Procedure Act, which relate to interest of substantive justice, bearing in mind that dismissal of suits is a draconian step. 22. The discretion, however, is not intended to assist a person who deliberately seeks to obstruct the cause of justice or who seek either by evasion or otherwise to delay the cause of justice, as was held in Shah Vs Mbogo & Another (1967) EA 116. 23. In Patriotic Quards Ltd vs James K.Sambu (2018) eKLR, the court said that the discretion has to be exercised upon certain legal principles, depending on the circumstances of each case, the paramount need of the court being real and substantial justice to the parties in a suit. 24. In Wachira Karani – vs Bildad Wachira (2018) eKLR, in BML vs WM (2020) eKLR and in Hon. A.G vs LSK Civil appeal application No. 133 OF 2011, the court said that sucient cause or good cause in law means the burden placed on the litigant to show why a request should be granted or action excused; Citing Black Laws Dictionary 5th edition page 251, the court said that sucient cause must therefore be rational, plausable, logical, convincing, reasonable and reliable. 25. In this matter, therefore, what the applicant alleges to be the reasons for non-attendance, as held in Hon A.G vs L.S.K & Another (supra), must not leave any doubt in the mind of the court regarding unexplained gaps in the sequence of events. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5596/eng@2026-09-16 3

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26. Given the contents of the replying adavits by the respondents and the court record, I nd the explanation by the applicant for non-attendance and the inordinate delay in ling the application inadequate and not convincing at all. 27. Further, in examining the circumstances existing before the date of dismissal, the applicant had adjourned the matter on account of sickness or other unexplained reasons. Even after the adjournment, the applicant had diculties with her former lawyer then on record, who later, after giving notice to the plainti, was allowed to withdraw from acting for the plainti. 28. The plainti was aware of the withdrawal from acting by her former lawyers, yet she took no action to rectify the situation or follow up on her matter with the court. As held in Parimal vs Veena (2011) 3 SCC 545, sucient cause means that a party had not acted negligently or there was want of bona des or its point in view of the facts and circumstances of a case, or that a party remained inactive. 29. A case belongs to a litigant, who has a duty to pursue prosecution of their case, as was held in Savings and Loans Ltd. vs Susan Wanjiru Muritu, NRB Milimani HCCC No. 397 of 2002, 30. There has been an inordinate delay in applying for reinstatement, which the applicant has also not addressed. Prolonged delay that is inexcusable or unexplained is a factor to consider if justice may still be done to the parties, as held in Ivita vs Kyumbu (1989) KLR 441. 31. Delay of a matter due to laxity, negligence, and/or indierence in this case must be placed on the doorstep of the applicant, going by the court record. See Mobile Kitale Service Station vs Mobil Oil (K) Ltd & Another (2004)eKLR. 32. Once a matter is led in court, it belongs to a party but not his advocate. In Mwangangi vs Muga(2024)eKLR, the court cited with approval Habo Agencies Ltd vs Wilfred Odhiambo Musingo (2015)eKLR, that advocates on record should not be blamed for all manner of transgression in the conduct of a litigation, since the litigant has an equal responsibility to follow up and show interest in the progress of their cases even when represented by lawyers. 33. The duty to follow up was also emphasised in Bi-March Engineers Ltd versus James Kahoro Mwangi (2011) eKLR. 34. In the circumstances obtaining in this matter, I nd no merit to reinstate the suit. The application is dismissed with costs to the defendants. Orders accordingly. DATED, SIGNED AND DELIVERED THIS 16TH SEPTEMBER 2026 ………………………. HON. JUSTICE C.K NZILI JUDGE In the presence of: Mr. Wachira for the plainti Mr.Muriithi for the 1st defendant Mr. Kimiti for the 3rd defendant Mr. Mwenda for 2nd defendant C/A: Julius https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5596/eng@2026-09-16 4

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