Osowo v Auma Odhiambo & another

3. It was mainly grounded on the fact that the plainti’s motion dated November 15, 2021 that had sought injunctive orders was dismissed by the court on December 7, 2021 for want of attendance and compliance. 4. Counsel averred that on the said date of December 7, 2021, his associate arrived in court late due to circumstances beyond his/her control and when he/she arrived in court, he/she found that the motion had been dismissed for non-attendance. Further, that the plainti was present in court. 5. Counsel led written submissions dated March 25, 2022. In it, he stated that the court had powers to set aside its own orders and he relied on the High Court decision of Peter Kiplagat Rono v Family Bank Limited [2018] eKLR where the court stated that its discretion was meant to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error. This decision cited with approval the case of Shah v Mbogo and Another [1967] EA 116.He also relied on the High Court decision of Edney Adaka Ismael v Equity Bank Limited [2014] eKLR. Respondents’ case and submissions 6. Despite service, the respondents failed to either le a response or submissions and even if the motion is unopposed, this court has to determine it on its own merits. Analysis and determination 7. I have carefully considered the plainti’s motion, grounds in support and counsels supporting adavit and his written submissions and the only issue falling for determination is whether the motion is merited. 8. Before considering the merits of the motion, I wish to point out that there are certain gaps on the face of the motion that need to be addressed. The supporting adavit alludes to an adavit of service, an email and written submissions which were allegedly annexed to the application. From the record, this is not the position. This plays into the reasons given by the plainti concerning why his application should be reinstated. 9. Order 51 rule 15 of the Civil Procedure Rules gives the court discretion to set aside or vary an order made ex parte. The authorities cited by the plainti indeed captures the settled law on such applications. The celebrated case of Shah v Mbogo & Another (1967) EA 116 stated thus; “ The discretion to set aside an ex parte judgment is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error but is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the cause of justice” 10. The motion was led slightly close to two months after its dismissal. The question that begs to be answered is whether the reasons advanced by the plainti amounts to sucient cause to justify the exercise of the court’s discretion in his favour. Was it an excusable mistake or was it meant to deliberately delay the cause of justice? 11. Sucient or good cause is dened in Black’s Law Dictionary, 11th edition, P 274-275 as; “ A legally sucient reason. Good cause is often the burden placed on a litigant (usually by court rule or order) to show why a request should be granted or an action excused.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/12621/eng@2022-09-22 2

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12. The case of FWNM v SMM [2019] eKLR described sucient cause to be rational, plausible, logical, convincing, reasonable and truthful. It should not be an explanation that leaves doubts in a judge’s mind. The explanation should not leave unexplained gaps in the sequence of events. 13. Counsel stated that in compliance with the court orders, he indeed served the motion dated November 15, 2021. On the day the case was slated for mention, his associate arrived in court late and found that the motion had already been dismissed. 14. Counsel has however failed to suciently explain why he did not le written submissions as directed by the court. The purported email and draft submissions are not attached to the motion thus the plausibility of the reasons provided by counsel are skewed. 15. But what does justice look like in the present case? It means allowing the parties to fully ventilate their case. I have looked at the court record and save for the one time that the plainti’s motion was dismissed for want of attendance, his counsel has always been attending court and I nd in the interest of justice, that this court should give the parties an opportunity to be heard. 16. The dismissed motion pertains to preservation of land pending the hearing and determination of the main suit. The same is deserving of recourse and I am persuaded by the decision of the Court of Appeal in the case CMC Holdings Limited v James Mumo Nzioki [2004] eKLR wherein it stated thus; “ our view is that in law, the discretion that a court of law has, in deciding whether or not to set aside ex parte order such as before us was meant to ensure that a litigant does not suer injustice or hardship as a result of among other things an excusable mistake or error”. 17. In conclusion, I am persuaded that the motion is merited and consequently it is hereby allowed. It is trite law that costs follow the event and because the plainti was the author of his own misfortune and the fact that the defendants did not participate in these proceedings, there shall be orders as to costs. 18. Consequently, the court makes the following disposal orders: a. The order dismissing the motion dated November 15, 2021 is hereby set aside and the motion is hereby reinstated for hearing. b. Plainti do comply with orders of this court issued on November 23, 2021. c. Plainti to serve all pleadings upon the defendants and le a return of service within 21 days from the date of this ruling. d. Mention to conrm compliance with order no (b) and take a ruling date on November 2, 2022. DELIVERED AND DATED AT SIAYA THIS 22ND DAY OF SEPTEMBER 2022. HON. A. Y. KOROSS JUDGE 22/9/2022 RULING DELIVERED VIRTUALLY CONFERENCING THE PRESENCE OF: THROUGH MICROSOFT TEAMS VIDEO Mr. Nyangweso h/b for Mr. Ouma Njoga for plainti N/A for the defendants Court assistant- Ishamel orwa https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/12621/eng@2022-09-22 3

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