Simiyu v Okubasu (Civil Case E032 of 2025) [2026] KEMC 739 (KLR)

6. The Defendant/Respondent averred that the Plaintiff/Applicant had not demonstrated how his counsel was negligent in handling this suit. He added that the Plaintiff/Applicant had not placed before this court proof of the efforts he made to ensure his counsel progresses with this matter. ANALYSIS & DETERMINATION 7. This court has given due regard to the pleadings on record. It is this court’s considered view that the only issue for determination is whether the instant Application is merited. 8. The law governing the reinstatement of a dismissed suit is set out under Order 12 Rule 7 of the Civil Procedure Rules, which provides thus:‘’ 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.’’ 9. It is also well settled in this jurisdiction that the discretion of the Court to reinstate a dismissed suit/application is part of the court’s inherent power. The inherent power of a court to render justice in any matter before it is expressly provided for under section 3A of the Civil Procedure Act. 10. The inherent power of the court was well explained in Murtaza Hassan & another v Ahmed Slad Kulmiye [2020] eKLR, where the Court cited Halsbury’s Law of England 4th Edition Volume 37 Paragraph 14 addressing the inherent/residual powers of the Court as follows:“Is a virile and viable doctrine and has been defined as being the reserve or found powers, a residual source of powers which the court may draw upon as necessarily whenever, it is just or equitable to do so, in particular to ensure observance of due

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process of Law, to do justice between the parties and secure a fair trial between them.” 11. However, the court’s discretion to reinstate a dismissed suit must be exercised judiciously after a party has given sufficient cause or a reasonable explanation for the exercise of such discretion as stated in Thathini Development Company Limited v Mombasa Water & Sewerage Company & another [2022] eKLR, where the Court held as follows: “A suit is dismissed for a want of prosecution, means that the parties therein failed to aid court in meeting its overriding objective. The party seeking to reverse this order must explain sufficiently to court as to why his application is merited and persuade court to exercise its discretion.” 12. The foregoing begs the question of whether the Plaintiff/Applicant has given a reasonable explanation why this court should exercise its discretion and reinstate this suit. 13. The crux of the instant Application is that the Plaintiff/Applicant was reportedly let down by his counsel, who never informed him about when this suit was coming up in court. The Defendant/Respondent, on the other hand, took the position that the Plaintiff/Applicant had not proved that his counsel was negligent in handling this matter and that the Plaintiff/Applicant did not take steps to ensure that this matter progressed in court. 14. This court has had the benefit of going through this court file’s proceedings. This court notes that neither the Plaintiff nor his counsel has ever attended court since the time this matter was filed on 27 th January 2025 up to the time the same was dismissed on 10 th February 2026.

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15. Clearly, the Plaintiff was let down by his counsel, who never bothered to attend court after filing this suit. 16. As a general rule, the mistakes of a counsel should not be visited on the client. This court places reliance on Edney Adaka Ismail vs Equity Bank Limited [2014] eKLR where the court held, inter alia, as follows: “The question then that arises is whether the plaintiff has offered sufficient reason to persuade the court to exercise its discretion in the favour and reinstate the application. It is true that where the justice of the case mandates, mistake of advocate even if they are blunders, should not be visited on the clients when the situation can be remedied by cost…”(Emphasis added) 17. Similarly, the Court of Appeal in Tana River Development Authority v Jeremiah Kimigho Mwakio & 3 others [2015] eKLR, stated that where the Court is satisfied that by excusing the mistake of counsel, it will result in a justiciable, expeditious and holistic disposal of the matter, the Court will exercise their discretion and excuse the mistake of counsel so as not to visit the same upon a client. 18. However, it is a settled principle of law that a case belongs to the litigant and not to his counsel. A litigant, therefore, has a duty to pursue the prosecution of his case. It is the litigant’s duty to constantly or regularly check with his advocate to know or ascertain the progress of the case. 19. Nothing on record suggests that the Plaintiff/Applicant ever took steps to follow up on the progress of this suit. This shows that the Plaintiff/Applicant is also to blame for failing to follow up with his advocate or this court on the status of this suit. The foregoing

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notwithstanding, this court cannot tell if the Plaintiff/Applicant’s counsel ever informed him when this matter was coming up in court. 20. This court notes that just a few days after this matter was dismissed, the Plaintiff/Applicant filed the instant Application to have this matter reinstated. This is an indication of the Plaintiff/Applicant’s willingness to have this matter heard and determined. 21. The right to be heard and have a party’s suit heard and determined on its merits is a constitutional right which can only be denied in very straightforward cases and deserving circumstances. This court takes the view that, given the Plaintiff/Applicant’s willingness to litigate this suit, it will be unfair to deny the Plaintiff/Applicant his day in court. 22. Reinstating this suit will result in a justiciable, expeditious, and holistic disposal of this matter as encouraged by the Court of Appeal in the Tana River Development Authority case (supra). 23. In any event, any prejudice occasioned to the Defendant/Respondent if this suit is reinstated can be remedied through payment of costs. DETERMINATION 24. Accordingly, for the reasons set out above, this Court makes the following orders: a) This suit is reinstated for hearing and determination b) Costs of the instant Application to the Defendant/Respondent 25. It is so ordered. Read, signed, and delivered in open Court at Bungoma this 23rd day of April 2026

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T.O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: C/A: Mr. Rioba

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