Mary Wairimu Mugo & 2 others v Nduati & Company Advocates

1. Mwangi S. Kimenyi v Attorney General & another [2014] KEHC 4220 (KLR) 2. Richard Ncharpi Leigayu v Independent Electoral Boundaries Commission & 2 Others [2013] KECA 282 5. The respondent opposed the application through a replying affidavit sworn by Stanley Nduati Advocate on 22.7.2025. The respondent’s main contention is that the applicant has not satisfactorily explained the non-attendance of 7 instances and the 7-month delay in filing the application. 6. Order 12 Rule 7 of the Civil Procedure Rules provides that “ 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.” 7. The court may review or set aside its own orders under section 80 of the Civil Procedure Act and order 45 rule 1of the Civil Procedure Rules for a sufficient reason, among others. 8. The exercise of the court’s discretion ought to be exercised reasonably not capriciously. This is based on principles in accordance with the unique circumstances of the case. 9. In Ivita v Kyumbu [1984] KLR 441, the court observed as follows: “ The test is whether the delay is prolonged and inexcusable, and if it is, can justice be done despite such delay. Justice is justice to both the Plaintiff and the Defendant, so both parties to the suit must be considered and the position of the judge too, because it is no easy task for the documents and, or witnesses may be wanting and evidence is weak due to the disappearance of human memory resulting from lapse of time. The Defendant must however, satisfy the court that he will be prejudiced by the delay or even that the Plaintiff will be prejudiced. He must show that justice will not be done in the case due to the prolonged delay on the part of the Plaintiff before the court will exercise its discretion in his favour and dismiss the action for want of prosecution. Thus, even if the delay is prolonged, if the court is satisfied with the Plaintiff’s excuse for the delay, the action will not be dismissed but it will be ordered that it be set down for hearing at the earliest available time”. Is The Delay Prolonged And Is It Excusable? 10. The suit was dismissed on 20.11.2024. The application for reinstatement is dated 8.5.2025. This is about 5 months and 18 days. The delay is prolonged. 11. From a reading of the application and affidavits, the applicant did not explain the delay in filing the reinstatement application. The applicant neither explained its reason for non-attendance on 27.2.2024, 22.4.2024, 10.6.2024, 11.11.2024, 20.11.2024 12. The record contains an email dated 19.11.2024 through which the notice to show cause was sent to the parties’ advocates. In this age of technology where any action by the court is reflected in the file in the CTS and parties are able to access the information, the applicant’s claim that neither she nor her advocate were aware of the listing of the matter for dismissal is not supported by the evidence on record. 13. Therefore, the court finds that the delay is not excusable. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19242/eng@2025-12-18 2

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Has The Respondent Shown That It Would Be Prejudiced By The Delay? 14. The applicant filed this suit claiming, among others, that the respondent unlawfully retained Kshs. 4,640,000/- out of Kshs. 19,640,000/- received by him for a conveyance transaction. The respondent filed a bill of costs dated 28.4.2021 in Misc E313 of 2021 seeking Kshs. 4,155,473.8. 15. Through an order of 23.6.2021, the court declined to lift the respondent’s lien over the funds reasoning that the issues in this suit could only be resolved after taxation proceedings that were pending. 16. The taxation ruling in Misc Appl. E313 of 2021 was delivered on 18.11.2024 and a certificate of taxation was issued on 21.11.2024. The taxation ruling in Misc Appl. E18 of 2021 was delivered on 17.6.2022 and a certificate of taxation was issued on 11.2.2025. 17. The respondent indicated that he has filed applications for entry of judgment in terms of the certified costs that are pending determination. 18. The respondent asserted that it is only after the conclusion of the pending matters that it can offer a current statement of account. It contended that The applicant was to blame for filing numerous frivolous applications causing delay in the conclusion of pending matters and reconciliation of accounts. 19. The respondent also exhibited similar applications filed by the applicant in Misc Appl. E313 of 2021 and Misc Appl E18 of 2021. He argued that the application is frivolous, vexatious and an abuse of the court process. 20. Abuse of the court process is the institution of a multiplicity of actions on the same subject matter, against the same opponent, on the same issues or multiplicity of actions on the same matter between the same parties even where there exists a right to begin the action. Satya Bhama Gandhi v Director of Public Prosecutions & 3 others [2018] KEHC 6100 (KLR) 21. I have read the applications filed by the applicant in Misc Appl. E313 of 2021 and Misc Appl E018 of 2021. 22. Through the applications dated 9.5.2025 in Misc Appl. E313 of 2021 and Misc Appl. E018 of 2021 the applicant seeks an order directing the advocate to pay Kshs. 4,105,526/- the balance of the money in the advocate’s custody held in trust less the taxed costs in Misc Appl. E313 of 2021 and Misc Appl E018 of 2021. 23. The foregoing fits the definition of abuse of the court process. 24. For this reason, the court finds that the respondent has demonstrated that if this suit is reinstated, he will be prejudiced. Disposal 25. The upshot is that the application dated 8.5.2025 is dismissed with costs for want of merit. DATED, SIGNED AND DELIVERED AT NAIROBI THROUGH MICROSOFT TEAMS ONLINE APPLICATION THIS 18.12.25 .............................. F. GIKONYO M JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19242/eng@2025-12-18 3

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In the presence of: Ms. Minyiri for Applicant. Njoroge for Respondent. CA - Kinyua. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19242/eng@2025-12-18 4

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