DK v AWN (Being sued as mother and next friend to the minors) (Family Appeal E004 of 2024) [2026] KEHC 3456 (KLR) (12 March 2026) (Ruling) Neutral citation: [2026] KEHC 3456 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT NAKURU FAMILY APPEAL E004 OF 2024 JM NANG'EA, J MARCH 12, 2026 BETWEEN DK .............................................................................................................. APPELLANT AND AWN (BEING SUED AS MOTHER AND NEXT FRIEND TO THE MINORS) ............................................................................................... RESPONDENT RULING 1. By Notice of Motion dated 26th April 2024 the Applicant seeks orders as hereunder; 1. Spent. 2. That the court be pleased to reinstate his Application dated 16th February 2024 that was dismissed for non- attendance on 20th March 2024. 3. That the costs of the Application be provided for. 2. The Applicant’s Legal Counsel (Mr. Jimmy Aggrey Simiyu) swore an affidavit in support of the motion. He avers inter alia that the Applicant had lodged an Application dated 16/2/2024 upon which the court granted on interim order of stay of execution. The Applicant also sought leave to appeal the lower court’s impugned decision. When the matter came up in court on 13/03/2024 for further directions the Respondent sought more time to reply to the Application. On 20/3/2024, Counsel further tells the court, he appeared before my brother (Hon. Justice H. M. Nyaga) but the file was not called out and he asked another Advocate called Biko to hold his brief as he attended to another case in Naivasha High Court. Later Counsel learnt that the Application had been dismissed in his absence for his non-attendance. 3. The Respondent filed an Affidavit in reply opposing the Application. She contends that there is no plausible reason for the Applicant’s failure to prosecute the Application. She thinks that the Applicant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3456/eng@2026-03-12 1
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is merely seeking to avoid performing his parental responsibilities of taking care of his children as directed by the lower court. 4. Only the Respondent filed submissions which I have read through against the rival affidavits and the record. 5. It is not explained why Mr. Biko who was requested to hold brief for Mr. Simiyu did not do so. Whereas the Application dated 16/2/2024 was dismissed on 20/3/2024, it is not explained why the Applicant delayed to bring the instant Application which was only brought around over one month later. The Applicant does not therefore demonstrate necessary bonafides to merit exercise of the court’s discretion in his favour. 6. The Application is therefore dismissed, but because of the parties’ relationship no order is made as to costs. J. M NANG’EA, JUDGE. JUDGEMENT DATED, SIGNED AND DELIVERED VIRTUALLY THIS 12TH DAY OF MARCH, 2026. In the presence of: Applicant’s Advocate, Mr. Simiyu Respondent, Present Court Assistant (Jenifier) J. M NANG’EA, JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3456/eng@2026-03-12 2
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