High Court 12719 of 2025

6. That the application has been made without unreasonable/inordinate delay. 7. That the application ought to be granted in the interests of equity and justice. Which application is supported by the annexed Affidavit of Sammy M. Mathai Advocate for the Petitioners’/Applicants and such further grounds, reasons, arguments as follows: 1. That I am and Advocate of the High Court of Kenya practicing as such in the name and style of Mathai Maina & Company Advocates who have the conduct of this matter on behalf of the Petitioners/Applicants and therefore duly authorized and competent to swear this affidavit. 2. That on 15th April this matter came up for hearing (summons for confirmation) before the Honourable Court. 3. That however, the Advocate in conduct of this suit was not present to proceed for the hearing as he was not aware the matter was coming up for hearing. 4. That the Petitioner/Administrators instructed my firm to file an application for summons for confirmation of grant was filed on 4th June 2025 (Annexed and marked SSM1 is a copy of the application dated 28th May 2025 for summons for confirmation of grant). 5. That a letter was written to request a hearing date for the application dated 28th May 2025 but the same bore no fruit (Annexed and marked SMM2 is a copy of the letter dated 4th July 2025). 6. That my clerk visited the court registry for purposes of fixing a hearing date for the application dated 28th May 2025 and is when he was informed the matter was dismissed for want of prosecution. 7. That the non-attendance was therefore unintentional on the part of the Petitioners/Applicants but as a result of an unfortunate circumstances which could have not been predicted or avoided. 8. That we implore the Honourable Court that the mistake of the Counsel on record on this should not be visited on an innocent litigant. 9. That through this application, we humbly pray that the suit be reinstated to be heard on merit to a just conclusion. 10. That this application has been made without unreasonable/inordinate delay. 11. That this application ought to be granted in the interest of equity and justice. Decision 2. The enabling provisions underpinning exercise of discretion of a Court is within Section 1(A), 1(B), 3, 3(A) and Section 80 of the CPA as considered with Rule 73 (1) of the Probate and Administration Rules. 3. In Shah v Mbogo [1979] EA 116 stated that: “ …this discretion is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designated to assist a person who has deliberately sought, whether by evasion or otherwise to obstruct or delay the cause of justice.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12719/eng@2025-09-17 2

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4. There must be sufficient cause to be shown by the Applicant before any relief of reinstating a dismissed suit in his or her favor. What constitutes sufficient cause was properly addressed in the persuasive case of Parimal v Veena in the following language: “ Sufficient cause” is an expression which has been used in large number of statuses. The meaning of the word “sufficient” is “adequate” or “enough”, in as much as may be necessary to answer the purpose intended. Therefore, the word “sufficient” embraces no more than that which provides a platitude which wen the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the view point of a reasonable standard of a curious man. In this context, “sufficient cause” means that party had not acted in a negligent manner or there was want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been “not acting diligently” or “remaining inactive.” However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reasons that whenever the court exercises discretion, it has to be exercised judiciously”. 5. Before any reinstatement of a suit is undertaken by the Court, there must be sufficient grounds which negates the conduct of the Applicant was not due to inadvertency, inability, failure or bonafides to take a proactive, necessary or mandatory measure or steps to further one’s case in a timely manner. What the court should avoid is to casually or carelessly run to the provisions of Section 1(A), 1(B), 3, 3(A) of the CPA and 73 (1) of the Probate and Administration Rules by invoking the inherent jurisdiction without the effort of the Applicant adducing evidence providing sufficient cause why the delay in prosecuting the claim within a reasonable time. 6. In the case at bar, the Applicant has explained in sufficient details the circumstances which led to the dismissal of the suit. Accordingly, I consider it to be fair and just to reinstate the suit with no orders as to costs. Status conference on 30th October 2025 with a view to confirm the grant of letters of representation. DATED, SIGNED AND DELIVERED VIRTUALLY AT ELDORET THIS 17TH DAY OF SEPTEMBER 2025. R. NYAKUNDI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12719/eng@2025-09-17 3

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