Nyariki v Machwara (Civil Appeal E052 of 2023) [2025] KEHC 19380 (KLR) (30 October 2025) (Judgment) Neutral citation: [2025] KEHC 19380 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT NYAMIRA CIVIL APPEAL E052 OF 2023 WA OKWANY, J OCTOBER 30, 2025 BETWEEN JOSEPHINE MORAA NYARIKI ........................................................... APPELLANT AND JONATHAN O. MACHWARA ........................................................... RESPONDENT (Being an appeal from the ruling of Hon. Ombija (SRM) delivered on 11th October 2023 in Keroka Civil Suit No. 223 of 2017) JUDGMENT Background 1. The Appellant herein, Josephine Moraa Nyariki, was the Plaintiff before the trial court where she sued the Respondent for damages arising out of a road traffic accident that occurred on 24th February 2016 involving the Respondent’s motor vehicle Reg. No. KZK 623. 2. The Appellant’s case was however dismissed for want of prosecution on 22nd May 2019, 2020. The suit was subsequently reinstated and listed for hearing on 26th February 2020 when it was once again dismissed for want of prosecution. 3. The Appellant filed an application dated 14th September 2022 in which she sought to set aside an earlier order dismissing her case for non-attendance and to have the same reinstated for hearing on the merits.The trial court referred to the earlier order issued on 19th September 2019 and dismissed the application for reinstatement of the suit thereby triggering the filing of the instant appeal. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19380/eng@2025-10-30 1
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The Appeal 4. Aggrieved by the trial magistrate’s decision dismissing her application to reinstate the suit, the Appellant filed the present appeal dated 19th October 2023 and raised six main grounds of appeal as follows: i. That the trial magistrate erred in law by failing to accord her an opportunity to be heard on the application dated 14th September 2022, contrary to the right to fair hearing under the Constitution. ii. That the magistrate erred in law by condemning her unheard, violating the principle of audi alteram partem. iii. That the magistrate erred in dismissing her application to set aside the dismissal order in her absence. iv. That the court failed to consider her pleadings and submissions on the said application. v. That the ruling was oppressive and in contravention of Article 159(2) of the Constitution of Kenya. vi. That the magistrate failed to consider the weight of the matter. 5. The appellant prays that the appeal be allowed, the ruling set aside, and the suit reinstated for hearing on the merits. 6. The Appeal was canvassed by way of written submissions which I have considered. I note that the Respondent did not file any submissions. Issues for Determination 7. I have considered the record of appeal and the submissions. I find that the main issues for determination are whether the Appellant was denied the right to be heard on her application dated 14th September and whether the appeal is merited. Analysis and Determination Right to be heard. 8. The cornerstone of justice is the right to be heard before an adverse decision is made. The right to be heard is codified in the Latin maxim “audi alteram partem” which means hear the other side. A perusal of the record shows that the trial court considered the Appellant’s application for reinstatement and held that the reasons were not satisfactory . The trial court’s impugned ruling was as follows: “ I have considered the submissions dated 19th September 2023 and the reasons advanced therein. I make reference to the direction/order issued by the court on 16th April 2019 by Hon. S.K. Arome SRM, the reasons advanced by the applicant are not satisfactory and or plausible, application is therefore dismissed.” 9. A perusal of the Record of Appeal reveals that the trial court’s proceedings commenced on 22nd May 2019. This means that no orders/directions were issued on 16th April 2019 as stated in the impugned ruling. I find that in the circumstances of this case, while it can technically be said that the Appellant was granted an opportunity to present her case, the trial court however completely misapprehended https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19380/eng@2025-10-30 2
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the facts of the case and arrived at an erroneous decision that directions were issued on 16th April 2019 when the court did not sit on the said date. 10. I therefore find that the trial magistrate erred in proceeding to dismiss the application based on nonexistent directions/orders. 11. The cumulative effect of the above findings is that the trial magistrate’s ruling was unjust and contrary to constitutional and legal principles. Justice demands that parties be heard on the merits of their case rather than being shut out on non-existent orders. I therefore find that the appeal has merit. 12. Having considered the record, the memorandum of appeal, and submissions, I make the following findings and orders: - 13. a. The appeal is allowed. b. The ruling and order of Hon. Ombija (SRM) delivered on 11th October 2023 in Keroka Civil Suit No. 223 of 2017 are hereby set aside. c. The appellant’s application dated 14th September 2022 is allowed, and the suit is reinstated for hearing on the merits before any magistrate other than Hon. Ombija. d. Both parties shall be accorded an opportunity to be heard. e. Costs of this appeal shall abide the outcome of the trial suit. It is so ordered. JUDGMENT DATED, SIGNED AND DELIVERED AT NYAMIRA VIA MICROSOFT TEAMS THIS 30TH DAY OF OCTOBER 2025. W. A. OKWANY JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19380/eng@2025-10-30 3
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