Maxwel Otieno Odongo v Coromandele Investment Limited & 4 others [2019] KEELC 2814 (KLR)

The court found that the explanation that a clerk assumed the notices were issued in error did not sound reasonable, since all Kisumu advocates must have known of the court's service week. The hearing notice was served and received on 18th October 2018, yet Counsel never visited the registry to confirm the alleged error, nor sought an explanation from the unnamed clerk, amounting to a gross abdication of duty contrary to Section 1A(3) of the Civil Procedure Act.

The motion sought only reinstatement and fixing of a hearing date, not setting aside or varying of the 29th October 2018 dismissal order as contemplated by Order 12 Rule 7. Since reinstatement presupposes setting aside the dismissal order, the omission was a fatal defect; Counsel's attempt to raise setting aside in oral submissions could not cure it, rendering the motion incompetent and an abuse of process.

The court found the motion was filed about a month after the dismissal orders were issued, not three months as alleged in the Grounds of Objection. Measured against the decree issued on 5th November 2018, the period did not amount to inordinate delay. However, delay was not decisive given the findings on competency and the explanation for non-attendance.

The 1st Defendant objected that Section 3B did not exist in the Civil Procedure Act, Cap 21. The court agreed, expunged the reference, and proceeded to consider the application on the remaining invoked provisions (Sections 1A, 1B, 3A, Order 12 Rule 7 and Order 51). The defect alone did not invalidate the application.