High Court 13172 of 2026

RULING 1. The Petitioner Daniel Nzioka Kiilu filed a Petition dated 25th February 2025 seeking the following reliefs: 1. A declaration that the proceedings and the ultimate discharge of the Petitioner in Nairobi Chief Magistrate's Court Criminal Case No. 1841 of 2008 under section 87 (a) by the prosecution is a nullity and the petitioner's constitutional rights were grossly violated. 2. The charge and or proceedings in Nairobi C.M.C CR Case No. 1841 of 2008 be declared oppressive, void, illegal and unconstitutional and the Petitioner be discharged forthwith unconditionally. 3. General and exemplary damages on an aggravated scale for the malicious arrest, confinement, prosecution and the consequent defamation payable by the respondents herein jointly and severally. 4. Any further orders, writs, directions as this Honourable Court may consider appropriate. 5. Costs of the suit with interest at Court rates. 2. Subsequently, the Petitioner filed a Notice of Motion Application under Certificate of Urgency dated 25th April 2025 that was supported by the sworn Affidavit of Kathike Mary Musengya, an Advocate of the High Court of Kenya practicing under J. Maluki & Company Advocates on behalf of the Petitioner/Applicant. 3. The Application is predicated on the grounds that the Petitioner initially instituted the petition dated 13th February 2017 seeking damages against the Respondents. That however, the physical court file went missing, leading the court to issue a Notice to Show Cause dated 30th September 2020. 4. That on 18th November 2020, when the matter came up before Hon. Justice A.C. Mrima, counsel for the Petitioner logged into the online platform and the file was placed aside until 2:00 PM to allow counsel to seek instructions from his client. That at 2:00 PM, the advocate logged in but was unable to gain access to the online platform, leading to the petition being dismissed for want of prosecution, a fact counsel only discovered later through the e-filing portal after prolonged efforts to locate the file. 5. The deponent explains that tracing the missing file was heavily complicated by the COVID-19 period, but that the present Application has been presented without unreasonable delay once the file was located. It is stated that any error regarding the missing file lies solely with counsel and should not prejudice the Petitioner, who was a victim of malicious prosecution. 6. Furthermore, it is deposed that the failure to prosecute was neither intentional nor deliberate and that the Petitioner remains eager to pursue the petition. That the application also presents an arguable case with high prospects of success. 7. It is averred that reinstating the petition would ensure that it is heard on its substantive merits pursuant to Article 159 of the Constitution without causing prejudice to any of the Respondents. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13172/eng@2026-08-25 2

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Response 8. In response to the Application, the 3rd Respondent herein Charles Peter Kiarie Mwangi filed a Replying Affidavit sworn on 19th September 2025 in which he strongly opposes the Petitioner’s Application which seeks to reinstate Petition. 9. The 3rd Respondent contends that the Petition was dismissed on 18th November 2020, for want of prosecution due to the Petitioner’s lack of interest. He argues that seeking reinstatement after nearly five years constitutes an inordinate, inexcusable delay that demonstrates sheer neglect rather than diligence. 10. The 3rd Respondent dismisses the Petitioner’s justifications, namely a missing court file, virtual platform issues, and COVID-19 disruptions as untenable excuses that cannot cover prolonged inaction. 11. The 3rd Respondent asserts that court records were accessible physically and online, yet the Petitioner took no proactive steps. Invoking constitutional rights under Articles 50(1) and 159(2)(b) regarding fair hearing and timely justice, he notes that substantive justice under Article 159(2)(d) must balance both sides’ rights and cannot sanitize indolence. 12. Ultimately, it is the 3rd Respondent’s position that reviving the case would subject the Respondents to undue hardship, financial burden and endless litigation, thus urging the Court to dismiss the application with costs. Submissions 13. The Application was canvassed by way of written submissions. Only the Petitioner filed submissions dated 21st November 2025. The Petitioner/Applicant submits through counsel that the underlying Petition, originally filed on 13th February 2017, seeks damages and redress for malicious prosecution and the violation of constitutional rights. 14. It is submitted that pursuant to Sections 1A and 1B of the Civil Procedure Act, the Court has an overriding duty to ensure the just, expeditious and proportionate disposal of cases. Further, that the Court’s inherent power under Section 3A of the Civil Procedure Act exists to prevent injustice and prevent abuse of the court process. 15. Further submission is that in exercising this power, the Court holds unfettered discretion to set aside dismissal orders, as highlighted in Wanjiku Kamau v Tabitha Kamau [2014] eKLR, in which it was held that wide judicial discretion should aim at doing justice to the parties whenever sufficient cause is shown. That these statutory principles are further fortified by Article 159(2)(d) of the Constitution, which requires that justice be administered without undue regard to procedural technicalities. 16. Addressing the length of time, the Applicant submits that the delay was neither inordinate nor inexcusable. Counsel relies on Mwangi S. Kimenyi v Attorney General & Another [2014] eKLR where inordinate delay was defined as delay "beyond acceptable limits," Counsel for the Applicant details that the file went missing around 2019 as confirmed by the Notice to Show Cause dated 30th September 2020 and was further complicated by COVID-19 disruptions. 17. On the Notice to Show Cause dated 18th November 2020, it is submitted that counsel logged into the virtual court and successfully requested the matter be placed aside to 2:00 PM to obtain instructions. However, that counsel was unable to regain admission into the virtual session at 2:00 PM. The Applicant’s Counsel argues that any technical failure or mistake of counsel should not prejudice the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13172/eng@2026-08-25 3

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litigant, invoking Richard Ncharpi Leiyagu v IEBC & 2 Others [2013] eKLR, where the Court of Appeal held that the right to a hearing is not a mere formality and the doors of justice should not be closed due to counsel’s mistake. 18. He further relied on Fanuel Amimo v Tamasha Corporation Ltd [2008] eKLR, and submitted that a party alleging delay must demonstrate real, actual prejudice affecting a fair trial. Because the Respondents suffered no such prejudice, any minor inconvenience can be remedied by costs. 19. Finally, citing Utalii Transport Co. Ltd & 3 Others v NIC Bank Ltd & Another [2014] eKLR (per Gikonyo J), the Applicant emphasizes that courts should lean toward exercising lenient discretion to sustain suits involving substantial causes of action rather than shutting out litigants on procedural grounds. That because the Petition touches on fundamental constitutional liberties and malicious prosecution, denying reinstatement would permanently extinguish the Applicant’s substantive claim without a hearing. Analysis and Determination 20. Having considered the application and the response thereto as well as the submissions, the sole issue for determination is whether the Applicant has demonstrated sufficient cause to warrant the exercise of this Court's judicial discretion to reinstate the dismissed petition. 21. The order for reinstatement of a dismissed petition is discretionary as was held by the Court of Appeal in Tabuche Vs Tinga & 2 others CA E003/2022 [2024] KECA 551 KLR) (24/5/2024) (Judgment) in which the court stated that: “ The question as to whether the appellant was entitled to reinstatement of his suit as of right finds answer in Black’s Law Dictionary (Tenth Edition) which defines judicial discretion as: “The exercise of Judgment by a judge or court based on what is fair under the circumstances and guided by the rules and principles of law; a court’s power to act or not to act when a litigant is not entitled to demand the act as a matter of right.” Reinstatement of a suit dismissed for want of prosecution is a discretionary remedy and not a right. In any event, each case depends on its own circumstances.” 22. On the factors that the court should consider in determining whether to exercise its discretion, the Court of Appeal stated as follows in Kamau & another vs Inspector General of Police & another [2026] KEHC 1038 (KLR): “ We have carefully considered the application. To set aside an order for dismissal, the applicant must jump two hurdles. The first is to make the application within 30 days from the order of dismissal. The applicant has successfully jumped that hurdle. The second is that the applicant must present sufficient cause for the failure to attend court on the appointed date. What will constitute sufficient cause depends on the circumstances of each case. But in our perception, sufficient cause connotes an explanation of such quality or value as would justify setting aside the order of dismissal; a reason that is adequate in law, showing why the applicant’s request to set aside the order of dismissal should be granted.” 23. In Shah vs Mbogo [1967] EA 1116, the Court of Appeal stated that the discretion to reinstate a dismissed suit is intended to be exercised to avoid injustice or hardship resulting from in advertence or excusable or excusable mistake or error but is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the course of justice. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13172/eng@2026-08-25 4

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24. W.M Musyoka J in Olumbe vs Obanyi CA E014/2024 [2025] KEHC 5386 (KLR) 30 April 2024. Judgment stated that: “ 8. 25. Whether to reinstate a dismissed suit would call for exercise of discretion in line with Articles 50 and 159 of the Constitution, and the oxygen principle in section 1, 1A, and 3A of the Civil Procedure Act Cap 21 Laws of Kenya. These were discussed in John Nahashon Mwangi vs Kenya finance Bank Ltd (in liquidation [2015] eKLR 2015 KEHC 6760 (Gikonyo J), where it was stated that the fundamental principle of justice are enshrined in Article 159 of the Constitution, coupled with Article 50, with respect to the right to be heard, and to serve substantive justice to all. It was underscored that those principles ought to be factored when considering reinstatement of dismissed suits, bearing in mind that dismissal of suits is draconian.” The Mutunga Rules do not provide for dismissal of petitions where no steps have been taken or for failure to show cause why a petition should nlot be dismissed. However, under Order 17 of the Civil Procedure Rules, the court may dismiss the suit if the parties fail to take steps to prosecute it an dupon issuing notice to show cause or on application by the Defendant. The Rule, in my view is generic and of general application to constitutional petitions. The Rule provides: Notice to show cause why suit should not be dismissed [Order 17, rule 2] (1) In any suit in which no application has been made or step taken by either party for one year, the court may give notice in writing to the parties to show cause why the suit should not be dismissed, and if cause is not shown to its satisfaction, may dismiss the suit. (2) If cause is shown to the satisfaction of the court it may make such orders as it thinks fit to obtain expeditious hearing of the suit. (3) Any party to the suit may apply for its dismissal as provided in sub-rule 1. (4) The court may dismiss the suit for non-compliance with any direction given under this Order. (5) A suit stands dismissed after two years where no step has been undertaken. (6) A party may apply to court after dismissal of a suit under this Order. 26. Article 159 of the Constitution mandates that justice shall not be delayed and it is the duty of the court, litigants, as well as advocates, to ensure that matters are concluded expeditiously without unreasonable delay. 27. On the other hand, Sections 1A, IB and 3A of the Civil Procedure Act gives the court wide discretion over matters and issues that are before it and this include the question as to whether the Court should or should not reinstate a suit dismissed on account of unreasonable delay on the part of the parties to prosecute the same. 28. Under section 3A of the Civil procedure Act: 3A. Saving of inherent powers of court. Nothing in this Act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13172/eng@2026-08-25 5

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29. In Ivita vs. Kyumbu [1984] KLR 441 (Chesoni J), set out the factors to be taken into account in deciding whether or not to reinstate a dismissed suit 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 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 missing and evidence is weak due to the disappearance of human memory resulting from lapse of time. The Defendant must however satisfy the court that it 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 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.” 30. See Bilha Ngonyo Isaac vs. Kembu Farm Ltd & another & another [2018] eKLR citing Shah vs. Mbogo & Another (supra) on the question of discretion. 31. The burden of proof lies on the applicant seeking Court’s discretion to reinstate a suit to demonstrate that they have sufficient reasons for the delay. 32. The Court of Appeal in Richard Ncharpi Leiyagu v Independent Electoral and Boundaries Commission & 2 others [2013] eKLR (KECA 282), re-affirmed that the right to a hearing is a cornerstone of the rule of law and the administration of justice. Addressing defaults or blunders committed by legal representation, the Court of Appeal cited Madan, J.A. in Belinda Murai & others v Amoi Wainaina [1978] LLR 2782, observing: “ A mistake is a mistake. It is no less a mistake because it is unfortunate slip. It is no less pardonable because it is committed by senior counsel. Though in the case of Junior counsel the court might feel compassionate more readily. A blunder on a point of law can be a mistake. The door of justice is not closed because a mistake has been made by a lawyer of experience who ought to know better. The court may not condone it but it ought certainly to do whatever is necessary to rectify it if the interests of justice so dictate. It is known that courts of justice themselves make mistakes which is politely referred to as erring in their interpretation of laws and adoption of a legal point of view which courts of appeal sometimes overrule...” 33. The Court of Appeal in Leiyagu further adopted the broad equitable approach stated by Apaloo, J.A. in Philip Chemwolo & Another v Augustine Kubede [1982-88] KAR 103 thus: “ Blunder will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case heard on merit... unless there is fraud or intention to overreach, there is no error or default that cannot be put right by payment of costs. The court as is often said exists for the purpose of deciding the rights of the parties and not the purpose of imposing discipline.” 34. Applying these principles to the present facts, counsel for the Applicant states has sworn an affidavit explaining that they logged into the virtual session on the Notice to Show Cause date and actively sought time to get instructions. Th at the file was placed aside and that subsequent failure to rejoin https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13172/eng@2026-08-25 6

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at 2:00 PM stemmed from virtual access glitches which was further complicated by missing physical records and systemic COVID-19 disruptions. 35. This Court notes that the period between the dismissal and the filing of the present Application is considerable. However, each case must be considered on its own facts. The explanation provided by counsel for the petitioner demonstrates that the default was not a deliberate act to obstruct justice or abuse court processes. As was stated in the Leiyagu case, above, the court’s inherent jurisdiction to manage its proceedings must be exercised to prevent injustice, maintain its character as a forum of justice and uphold proportionality. 36. It is this Court’s opinion that shutting the door of justice on the Petitioner due to a counsel’s technical challenges or file-tracing delays coupled with the Covid-19 pandemic that interrupted court processes, which are not mistakes on his part, would permanently extinguish a substantive claim centered on alleged violation of fundamental constitutional rights and malicious prosecution without a hearing on merit. As to whether the petition has merit is not for this court to determine now. The merit hearing will determine. 37. This Court is mindful of the principles established in Fanuel Amimo v Tamasha Corporation Ltd [2008] eKLR, where it was held that a party resisting reinstatement must demonstrate real and actual prejudice that cannot be remedied. The rationale is that mere inconvenience or delay, without more, does not justify shutting the doors of justice to a litigant who has explained to the satisfaction of the court the reasons for the delay. 38. While the Respondents complain of delay, they have not shown that such delay has caused them irreparable prejudice or placed them in a position that cannot be cured. On the contrary, any inconvenience occasioned can be adequately compensated through an award of costs and an expeditious hearing of the petition. 39. For the above reason and the need to administer justice and fairness by not shutting the Applicant Petitioner away from the seat of justice, the Court is persuaded that the justice pf this case favours reinstatement, since the Respondents concerns do not rise to the level of incurable prejudice contemplated in the Fanuel Amimo case. 40. In the premises, this Court finds that the Applicant has established sufficient cause for the court to exercise its discretion in favour of sustaining the suit rather than shutting it out permanently. Accordingly, the Notice of Motion Application dated 25th April 2025 is hereby allowed on the following terms: 41. a. The Order of this Court made on 18th November 2020 dismissing Petition No. 440 of 2016 for want of prosecution is hereby set aside. b. Petition No. 440 OF 2016 is hereby reinstated to hearing on its merits. c. The petition shall be fast tracked for hearing. d. Mention on 12th October, 2026 for directions on the hearing of the petition. e. The costs in the cause and in any event, to the Respondents and shall abide the outcome of the Petition. It is so ordered. DATED, SIGNED & DELIVERED AT MOMBASA THIS 25TH DAY OF AUGUST, 2026 VIRTUALLY https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13172/eng@2026-08-25 7

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R.E. ABURILI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13172/eng@2026-08-25 8

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