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MagistrateAllowedNot stated in the judgment

Ndilangi v China Road & Bridge Corporation (K) (Civil Case 517 of 2015) [2026] KEMC 117 (KLR)

Magistrates' Court
28 April 2026
1,787 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan magistrate reinstated a lawsuit dismissed after the lawyer missed a virtual hearing, showing courts put the right to be heard first.

What this practically means

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Executive summary

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The plaintiff moved the court by notice of motion dated 9/7/2025 seeking review or setting aside of the orders of 7/7/2025 dismissing the plaintiff's application dated 2/5/2025, and reinstatement of that application for hearing on its merits. The application was anchored on sections 1A, 1B, 3, 3A and 80 of the Civil Procedure Act and various orders of the Civil Procedure Rules, supported by an affidavit of counsel who deponed that he was caught up in the Saba Saba demonstrations and could not attend court. The defendant opposed through grounds of opposition and written submissions, arguing that the demonstrations were a scapegoat since proceedings were conducted virtually, and relied on Mukavi Ways Co. Limited v Family Bank Limited. The court framed a single issue: whether there were sufficient grounds to reinstate the application. It held that sections 80, Order 45 and Order 42 rules 6 and 21 were inapplicable, and that the power to reinstate rests on the court's general and inherent powers, with Order 12 rule 7 invoked by analogy. Applying factors drawn from Leiyagu v IEBC and the right to be heard, the court found the dismissal regular and the explanation for non-attendance implausible, but noted the application was prompt, arguable, and unprejudicial to the defendant, who had not yet responded. Citing Pithon Waweru Maina v Thuka Mugiria, the court allowed the application: the dismissal order was set aside, the application of 2/5/2025 reinstated for hearing, costs awarded to the defendant, and directions for hearing to be given immediately. Delivered at Makindu on 28 April 2026 by Y.A. Shikanda, Senior Principal Magistrate.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether there are sufficient grounds for the court to reinstate the application dated 2/5/2025 which was dismissed for non-attendance

Key legal issues

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01

Whether the plaintiff established sufficient grounds for reinstatement of the application dismissed for non-attendance on 7/7/2025

Holding

The application was allowed; although the explanation for non-attendance (Saba Saba demonstrations) was not plausible, the application was prompt, arguable, and no prejudice would be caused to the defendant, so the interest of justice favoured reinstatement.

Reasoning

The court set out seven factors for reinstatement: reason for non-attendance, delay, merit, prejudice, conduct of the applicant, interest of justice, and regularity of dismissal. The dismissal was regular and the explanation was unconvincing since hearings were virtual. However, the application was brought promptly, raised arguable issues, the defendant had not yet responded, and no pattern of indolence existed. Balancing these against the constitutional right to a fair hearing and substantive justice, reinstatement was warranted.

p. 5
02

The inapplicability of review (sections 80 CPA, Order 45) and Order 42 rules 6 and 21 to the application

Holding

The court found those provisions inapplicable; the proper basis was the court's general power and Order 12 rule 7.

Reasoning

The applicant had invoked review provisions and Order 42 rules 6 and 21, but the court held these did not fit an application dismissed for non-attendance. Since no express rule governs reinstatement of applications dismissed for non-attendance, the court invoked its inherent power to do justice, applying Order 12 rule 7 by analogy.

p. 2

Legal principles established

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  • The discretion to set aside an ex parte judgment or order is intended to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake, not to assist a party who deliberately obstructs or delays justice.
  • Denying a party a hearing should be the last resort of a court.
  • The court possesses inherent and general power to control its own procedure and set aside its own orders to prevent injustice, even absent an express rule providing for reinstatement of applications dismissed for non-attendance.

Court orders

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  1. 1.The order made on 7/7/2025 dismissing the application dated 2/5/2025 for non-attendance is hereby set aside
  2. 2.The application dated 2/5/2025 is hereby reinstated for hearing
  3. 3.Costs of this application are awarded to the defendant
  4. 4.The court shall give directions as to the hearing of the application dated 2/5/2025 immediately upon delivery of the ruling

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Sections 1A, 1B, 3, 3A and 80 of the Civil Procedure Act; Order 12 rule 7 of the Civil Procedure Rules

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The order made on 7/7/2025 dismissing the application dated 2/5/2025 for non-attendance is hereby set aside;
p. 5Final orders - setting aside dismissal
The application dated 2/5/2025 is hereby reinstated for hearing;
p. 5Final orders - reinstatement
Costs of this application are awarded to the defendant;
p. 5Final orders - costs
In Leiyagu v Independent Electoral and Boundaries Commmission & 2 others [2013] KECA 282 (KLR), the Court of Appeal restated the principle that the court's discretion to set aside an ex parte judgment or order for that matter, is intended to avoid injustice or hardship resulting from an accident, inadvertence or inexcusable mistake or error
p. 3Principles governing setting aside dismissal orders
to deny a part a hearing should be the last resort of a court
p. 5Right to be heard as last resort

Issues in the judgment

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minor

The order of 7/7/2025 is described by the applicant as a dismissal for want of prosecution, but the court found it was a dismissal for non-attendance.

minor

Typographical error in the judgment quoting the authority: 'to deny a part a hearing' rather than 'a party'.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ndilangi v China Road & Bridge Corporation (K) (Civil Case 517 of 2015) [2026] KEMC 117 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/117/eng@2026-04-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.