Mbeche (Suing on her Behalf and as a Representative of the Estate of Araka Rachier Mbeche) v Kihumba (Civil Appeal 24 of 2018) [2025] KECA 2204 (KLR) (10 December 2025) (Decision)
Neutral citation:
[2025] KECA 2204 (KLR)
Republic of Kenya
Civil Appeal 24 of 2018
MA Warsame, JM Mativo & PM Gachoka, JJA
December 10, 2025
Between
Rose Araka Mbeche (Suing on her Behalf and as a Representative of the Estate of Araka Rachier Mbeche)
Appellant
and
David Mathai Kihumba
Respondent
(Being an application from the judgment of this Court (Musinga (P), Okwengu & Asike, JJA) dated 7th October 2022 in Nairobi Civil Appeal No. 55 of 2018
Civil Case 209 of 2003,
Civil Appeal 55 of 2018
)
Decision
1.The background to the application dated 25th September 2025, the subject of this ruling is that on 16th September 2025, this Court dismissed the applicant’s application dated 18th November 2022 under Rule 58 (1) of the Court of Appeal Rules for non-appearance and for failing to file written submissions as per the Court’s directions. For the sake of brevity, the said order reads as follows:
2.In the said application the applicant was seeking an order for certification under Article 163 (4) (b) of the Constitution as read with sections 15 (1) & 15 B Supreme Court Act. When the application was called for hearing on 16th September 2024, both parties were absent despite having been duly served with a hearing notice. Therefore, the Court dismissed the application as aforesaid.
3.Vide application dated 16th September 2025 the applicant moved this Court under section 3A & 3B of the Appellate Jurisdiction Act Cap 9 Laws of Kenya and Rules 58 (2) & (3) of the Court of Appeal Rules, 2022 and applied for restoration of the dismissed application. The explanation for the failure to attend Court is set out in the affidavit of Wilfred Lusi, learned counsel for the applicant, sworn on 16th September 2024, as follows:(a)the inadvertent non-appearance on behalf of the applicant was caused by technical difficulties that hindered counsel’s ability to join the virtual Court session;(b)the applicant has always remained keen to urge her application on merit since it raises substantive legal questions posed to the Supreme Court;(c)the instant application had been brought without any delay;(d)the applicant would be greatly prejudiced since she waited for two years to prosecute the subject application;(e)on the other hand no prejudice would be suffered by the respondent since he never filed a response to the dismissed motion;(e)the applicant sought directions on the application vide letter dated 10th January 2024 and served the court’s directions upon the respondent on 12th January 2024. Therefore, the applicant was not indolent.
4.The respondent opposed the application vide his replying affidavit sworn on 7th October 2024. The substance of the objection is:(a)the dismissed application stood unprosecuted and with no activity since its filing on 18th November 2022;(b)the dismissed application had abated under the operation of law as provided by Rule 53 of this Court’s rules which stipulates that if no application is made under sub-rule (2) within twelve months by the applicant or the respondent, the application shall abate;(c)the applicant has admitted to moving the court vide letter dated 10th January 2024 two years after filing the dismissed application;(d)the filing of submissions on 15th September 2024 was an afterthought and an attempt to show that the applicant had not been indolent in prosecuting the application dated 18th September 2022;(e)the dismissed application does not touch on public importance but is merely a land dispute that has already been determined and the respondent found to be a bona fide purchaser for value over the suit property No. Nakuru Municipality 15/169.
5.When the matter came up for hearing, learned counsel, Mr. Lusi was present for the applicant. There was no appearance for the respondent.
6.We have carefully considered this application. Rule 58 of the Court of Appeal Rule, 2022 primarily governs the reinstatement of applications that have been dismissed for non-attendance. The key requirements are demonstrating a sufficient cause for the failure to attend court and making the application within a specified timeframe. The said Rule reads:
7.The applicant urged and contended that it patiently waited for its day in Court, including waiting for a bench of the Court in Nakuru and availability of dates coupled with consistent follow up at the registry trying to secure a hearing date. Therefore, the non-appearance was inadvertently caused by technological challenges which could not be obviated in time to ensure the applicant’s appearance. To buttress his submission, Mr. Lusi cited the Madan, J.A (as he then was) in Chege Muraya vs. Rehema Noor & Another [2017] eKLR where the court held that the door of justice is not closed because a mistake has been made by a person of experience who ought to have known better. The court may not forgive or 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 are politely referred to as erring in their interpretation of laws.
8.Responding to the question paused by the Court as to why the applicant did not file submission in accordance with the directions by the Deputy Registrar of the Court, Mr. Lusi maintained that the late filing of submission dated and filed on 15th September 2024 was because the application was not responded to and they did not want to pre-empt the respondent’s response and to avoid the need to file further documents.
9.It is noteworthy that the directions on the dispensing with the application dated 18th November 2022 were issued on 11th January 2024. However, the applicant waited until the eve of the hearing of the motion to file its written submissions dated 15th September 2024 which was contrary to this Court’s direction. It is also noteworthy that by the time the applicant’s application came up for hearing on 16th September 2024, the applicant’s submissions were not on record and the applicant was also absent. Therefore, the court considered the age of the application, and resolved to dismissed the application dated 18th November 2022 in accordance with Rule 58 (1) of the Court of Appeal Rules, 2022. It’s noteworthy that under the practice directions governing online hearings, parties are required to log in by 8.30 am to test their audio and cameras. This is to enable parties to have adequate time to contact the registry in case of a challenge. The court started the hearings at 9.00 am and save for a blanket statement that the advocate experienced technical challenges, no explanation has been given as to what efforts the applicant or his advocate took before and after the court started the hearings.
10.From the foregoing, we find the applicant’s conduct is laced with laches since nothing prevented the applicant from filing submissions the moment directions on compliance were issued on 11th January 2024.
11.This Court in Mae Properties Limited vs. Joseph Kibe & Another [2017] KECA 238 (KLR) stated;
12.Having considered the applicant’s conduct in prosecuting of the application dated 18th November 2022, we are not persuaded that the applicant has demonstrated sufficient cause for the failure to attend Court on the appointed date and the failure to file submissions in compliance with the Court’s direction issued on 11th January 2024. Accordingly, we find that the applicant is underserving the exercise of this Court’s discretion in her favour.
13.The upshot is that the applicant’s notice of motion dated 25th September 2024 is hereby dismissed with no orders as to costs.
DATED AND DELIVERED AT NAKURU THIS 10TH DAY OF DECEMBER, 2025.M. WARSAME......................... JUDGE OF APPEALJ. MATIVO......................... JUDGE OF APPEALM. GACHOKA C.Arb, FCIArb.......................... JUDGE OF APPEALI certify that this is a true copy of the original.Signed.DEPUTY REGISTRAR.