Kiwipay Kenya Ltd v Republic (Criminal Miscellaneous Application E130 of 2023) [2026] KEHC 12998 (KLR) (19 August 2026) (Ruling) Neutral citation: [2026] KEHC 12998 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT KIAMBU CRIMINAL MISCELLANEOUS APPLICATION E130 OF 2023 DO CHEPKWONY, J AUGUST 19, 2026 BETWEEN KIWIPAY KENYA LIMITED .................................................................. APPLICANT AND REPUBLIC ............................................................................................ RESPONDENT RULING 1. On 8th October, 2025, this court directed Notice to issue upon the Applicant to show cause why the cause should not be dismissed for want of prosecution and indeed a Notice to show cause dated 13th October, 2025 was issued and served upon the parties. On 16th December, 2025, the Applicant’s Counsel attended court whereby he sought and was granted leave to file a response to the said Notice to show cause. 2. On 17th February, 2026, the Counsel watching brief for the 2nd Respondent informed the court that the applicant had not yet filed a response. He further stated that the Applicant had not been attending court and the last time there was appearance by and for the applicant was in June, 2024, which clearly shows disinterest in the matter. He thus urged the court to dismiss the matter with costs. 3. In response, the Applicant’s Counsel admitted that he was yet to file a response but sought to respond orally to the said Notice to show cause (NTSC). He attributed the delay in having the matter prosecuted to the failure of the lower court file being availed which was not a fault on his part and no explanation was given for such a delay. He however, committed to ensure that the issues raised are addressed. He further urged the court to order the 2nd Respondent to seek for costs from the 1st Respondent, if he is so desirous of the same. 4. In rejoinder, the 2nd Respondent’s Counsel stated that from the Applicant’s Counsel response, it was clear they were not opposed to the suit being dismissed. He pointed out they had been attending court the mention since February, through to July, September and November, all in 2025 and in all these https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12998/eng@2026-08-19 1
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occasions, the Applicants’ or their counsel were not in attendance, a clear show of laxity on their part and thus the suit should be dismissed for want of prosecution. 5. Having listed to the oral submissions by counsel for the Applicant, Mr. Kiprotich and Mr. Mwangi counsel for the Respondent, I have also carefully read through the record in this matter. Determination 6. I have established that the Applicant moved the court vide a miscellaneous application dated 23rd December, 2023 seeking orders that the orders issued in Nairobi Milimani Misc. Appl. E4248 OF 2023 Republic v Ecobank Kenya Limited be reviewed, and or set aside so as to correct the illegality of proceedings made on 22nd December, 2023. The application was fixed for hearing on 9th January, 2024 on which day the 1st Applicants’ counsel Mr. Gacharia stated that they had not been served with the application and urged that the applicants be directed to serve the other parties. He also sought for time to enable him get instructions from his client, the bank. The Court adjourned the hearing to 15th January, 2024 with directions that the Applicant serve the 1st Respondent and the D.C.I and response be filed within three (3) days from the said date. 7. When the application came up for hearing on 13th January, 2024, there had been no compliance of the directions issued on filing of responses by the Respondents and the court issued further directions on filing of responses and called on the original records of proceedings in a number of matters pending before various courts at Milimani and Kiambu. The matter was then deferred for mention to confirm compliance on 6th February, 2024 and thereafter on many other dates until 18th December, 2024 when there was indication that two records had been availed. 8. It is worth noting that the Applicants’ counsel and or representative were in attendance before court on the 17th February, 2025. 9. The court notes that on 17th February, 2025 and 17th March, 2025 the Applicant’s counsel was absent. That it was only on 1st April, 2025 when the Applicant’s Counsel attended court and the court confirmed that the original records called for, save for one, had been availed. The court further notes that on 30th April, 2025, there was no appearance by either party, and on 9th July, 2025, 17th September, 2025 and 8th October, 2025 only the Counsel for the Interested Party was present which led to the issuance of the Notice to Show Cause. 10. Following the chronology of the record, it is evident that the application has never been set down for hearing/prosecution for reason that the Respondents had not filed their respective responses and the records upon which the application emanated from had taken long to be availed. Later, there is noted non-attendance before court by the Applicants counsel. While the court admits that it took several mentions for the original records to be availed, be that as it may, the Applicant still had a duty to attend court to follow up on its progress and compliance of court’s directions. It is worth noting that upon issuance of the NTSC, the Applicant did not file any response but instead opted to explain the delay on the prosecution orally and attributed the same on the lack of the original records which had been called for. He gave a reason which was not consistent with the purpose of mention on the 17th February, 2026. Having considered the Notice to Show Cause, did not explain or falsify why they had not filed a response on the Notice to show cause or urged for the matter to proceed on prosecution since they had initiated the application. The application has been pending before this court, having considered the period taken the conduct of the parties on every occasion the same has come up for mention wherein it appears that the application is the business of the court and not the Applicant who initiated the same alongside the chronology of events on the record whereby it is evidence that the last time the Applicants, advocate attended court in its matter was on 1st April, 2025, it is clear that the Applicant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12998/eng@2026-08-19 2
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has not shown keen interest in having its application prosecuted. It is worth noting that the Applicant has not even urged for orders to issue in view of the compliance by the Respondent. For these reasons, the application and entire proceedings are dismissed for want of prosecution with no orders as to costs. It is so ordered. RULING DATED AND SIGNED this 16TH DAY OF AUGUST, 2026. HON. D. O. CHEPKWONY JUDGE RULING DATED, SIGNED AND DELIVERED AT KIAMBU this . 9TH DAY OF AUGUST , 2026. F.N. KYAMBIA JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12998/eng@2026-08-19 3
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