Analysis and Determination
12.The main issue for determination in the present application is whether the prayers sought should issue?
13.On the issue of setting aside order the court needs to analyse on whether the Appellant’s have laid a basis for the court to exercise its discretionary power of setting aside orders?
14.The Court in Mbogo & Another Vs Shah EALR 1908 laid down the principle where the court can exercise it discretion to set aside orders in the nature if dismissal, in order to void injustice or hardship resulting from an accident, inadvertence or excusable mistake or error. Consequently, the same discretion should not be applied to assist a litigant who intentionally seeks to delay the course of justice.
15.The law on setting aside of ex parte orders is found under Order 51, rule 15 which provides that
16.In this case, the Appellants filed a Memorandum of Appeal on 23rd January, 2023 2014 and the same was admitted on 15th May, 2014. The Appellants’ advocate averred that Appellants were not aware of the dismissal or the notice to show cause. From the record, I note that there is a Notice to Show Cause why the Appeal should not be dismissed for want of prosecution dated 25th October, 2021 sent to the parties’ advocates. It appears that the Notice was sent to both advocates on record but was only received by the firm of Gekonga & Company Advocates who received it on 25th November, 2021 4 days to the dismissal. There is no record on whether the Appellants or their advocates were served.
17.In Kenya Power & Lighting Co. Ltd Vs Kenya Cold Storage 1964 Ltd HCCC No.387 of 2002 Hon. Lady Justice Hannah Okwengu (as she then was) held as follows:
18.The import of the preceding authority is that before a suit is dismissed the parties have to be informed since a dismissal is not a light matter.
19.The dismissal of the Appeal was done on 29th November, 2021 where only the advocates for the Respondent were present. The Appellants thereafter filed the instant Applications 7 months later after the dismissal. The question begs is why the Appellants would fail to attend court for the dismissal then again wait for another 7 months to mitigate the dismissal during the August vacation period? The Appellant stood to lose more by the dismissal. It is my humble opinion, that it appears that neither the Appellants nor their advocates lawyer were aware of the Notice to Show Cause or the dismissal of the Appeal.
20.As to whether the Appeal should be reinstated, I also note that the Record of Appeal had not been filed for over nine years to date. Have the Appellants’ explained the delay and is the delay excusable? From the record, the Respondent filed an application seeking to dismiss the Appeal for want of prosecution dated 18th May, 2016 on 30th May, 2016. The Appellant in opposing the Application filed Grounds of opposition and a Replying Affidavit both dated 26th February, 2017 that the Application was premature and brought under the wrong provisions of law. It appears that the application was never canvassed.
21.The Appellants through counsel stated that the delay was due to the lack of documents for purposes of filing the Record of Appeal and annexed two letters dated 17th January, 2017 and 10th March 2018. There seems to be a delay of about 3 years from the time the Respondent filed the Memorandum of Appeal to the first time they sought copies of proceedings. This delay has not been explained. The Appellant’s filed another letter to court in the year 2018 and since then the Appellants have not taken any steps in prosecuting the Appeal. Again, there is a delay of about 3 years. In my opinion the Appellant slept on their rights and occasion the delay which I find to be inordinate.
22.The explanation given by the Appellants was that the court never availed the documents to them despite them requesting for he same. The Appellants have not explained what caused the delay for the 3 years before they sought proceedings. They have also not demonstrated why they never followed up on the proceedings since 2018. The explanation given by the Appellants was not plausible. This is a court of equity and ideally should not aid an indolent litigant.
23.I wish to also address the fact that there is also a letter on record dated 26th September, 2018 from the firm of Gekonga & Company Advocates, advocates for the Respondent, complaining to court of their attempt at tracing the file from the registry but to no avail. It seems the file could not be traced and court takes cognizant of that particular challenge.
24.Having found that the Appeal was dismissed without the knowledge of the Appellants, the court questions whether the same tilts in favour of the Appellant despite the way in which they were not vigilant. The Respondent seems to be the one following up on the matter other than the ones who instituted it.
25.Looking at the case of Arbuthnot Express Services Limited vs Manchester Outfitters Suiting Division Limited & Another  LLR 5515 (HCK) the court observed as follows:-
26.In the circumstances of this case, the Appellants are not wholly to blame for the delay for the dismissal there was a lapse in service and notification. Despite the very long delay which should not be excused there is evidence that the Appellants made an attempt to follow up on the proceedings though very minimal, justice dictates that the court must not oust the Appellant from being heard on merit.
27.In the case of Philip Chemowolo &Another vs. Augustine Kubende, [1982-88] 1 KAR 103 the court observed as follows that:
28.There was delay on the part of the Appellant this court also notes that the dismissal was irregular as the Appellants were not aware and were not afforded an opportunity to show cause why the Appeal should not have been dismissed.
29.The court is alive to the fact that there was a stay of execution of the judgment in Molo CMCC 171 of 2011. The stay orders were extinguished when the Appellants Appeal was dismissed. The court issued a temporary order of stay. The Appellants have pleaded that they had already complied with the stay conditions that had been given prior of depositing half of the decretal sum in a joint account and the other half released to the advocates of the Respondent and that there is imminent threat of execution.
30.The Respondent submitted that the stay of execution enabled the Appellants to move with laxity and further added that the issue of stay had already been dealt with and the same cannot be raised at this point. That the Appellants will not suffer prejudice if this Application is disallowed that the funds deposited should be released to the Respondent.
31.Dismissing the Appeal meant the stay was no longer in place. The Appellants have pleaded that that there is an imminent threat to execution. The Respondent averred that they will suffer prejudice since she will not enjoy her judgment.
32.In RWW v EKW  eKLR, the court considered the essence of a stay of execution order pending appeal, and stated:
33.In weighing whether the stay should be granted to the Appellants the court places reliance on John Nahashon Mwangi vs. Kenya Finance Bank Limited (in Liquidation)  eKLR as follows:
34.Having found that the dismissal was irregular and that the Appellant had already complied with the stay conditions, I have to also consider the rights of the Respondent and the fact that she has had to wait for nearly 10 years without prospects of realizing fruits of her judgment. I have taken into consideration that the Respondent has strongly opposed the reinstatement of the appeal herein for reasons that the Appellants were indolent and lost interest in the Appeal. The Appellants have sought refuge under Article 48 access to justice and 159 (2) on procedural technicalities.
35.The right to be heard is an important right in our Constitution and the foundation of the rule of law. This right should therefore not be taken away since it would be unjust and a miscarriage of justice bearing in mind that the Appellants have demonstrated the desire to be heard .
36.I am persuaded that I have to consider the provisions of Article 50 of the constitution on the right to fair trial and the requirements for dispensation of substantive justice under Article 159(2) (b) of the constitution. I find that dismissing this application will attract dire consequences as opposed to allowing the Appellants canvass the Appeal. I also find that the Respondent will not suffer prejudice or loss which cannot be compensated by way of costs if the appeal is reinstated.
37.I am persuaded that the application dated 11th August, 2022 has merit and consequently it is hereby allowed as follows; that:i.The order of 29th November, 2021 dismissing the Appeal for want of prosecution is hereby set aside and the Appeal is hereby reinstated.ii.That there be stay of execution of the judgment in Molo CMCC 171 of 2011 pending hearing and determination of the Appeal;iii.The Appellants to file and serve a record of appeal within sixty (60) days of this Ruling;iv.Thereafter, the Appeal to be listed for directions within fourteen (14) days after filing of the Record of Appeal.v.Failure to comply with (iii) and (iv) above, the Appeal shall stand dismissed;vi.Costs shall be in the cause
I so order.