Mwongo (suing as the administrator and legal representative of Isaiah Mwongo alias Isaiah Mwongo M'aburu v Mugwika & 2 others

3. The application is further supported by the adavit of Mercy Kaume, the advocate for the applicant in which she states that she was ready to proceed with the matter on the hearing date, and tried to join the court’s link but could not get through. That she then called the court assistant and texted him that she was unable to join the link and decided to attend open court but arrived at about 9.40 am since she was travelling from Tigania. That by the time she arrived in court, she found the matter had been dismissed for non- attendance. 4. Although the respondents were served with the application, they did not le any replies and did not attend court on the hearing date. The application is therefore unopposed. 5. Ms. Kaume submitted that this is a land matter in which the initial suit was led in the High Court at Meru as No 158 of 2010 which was then transferred to Tigania Chief Magistrate’s Court and given case No 76 of 2018. That the new number brought some confusion and the le got misplaced and a skeleton le was opened. That apparently, the original le was found and both les proceeded at dierent times. Counsel explained that whereas the issue was raised by the then advocate on record, the court did not address itself to it. That on September 21, 2019, the original and skeleton les were before court, but the applicant and his advocate were not aware that there were two les, and they left after the original le had been dealt with. That later they were informed that the matter had been called out and since there was no response, the same was dismissed for non-attendance, and were advised to make a formal application to set aside the orders of dismissal order, but the court declined to allow the application. The applicant’s counsel stated that the court stated that the ruling had been delivered to the parties by email. That the applicant kept on waiting for the ruling only to learn that the same was delivered by email. The applicant therefore made an application to appeal out of time, which is a discretionary order. 6. I have considered the application. The application dated February 10, 2022 was scheduled for hearing on May 17, 2022 but none of the parties were present before court when the matter was called out. Accordingly, the court dismissed the application for non- attendance. 7. Order 12 rule 3 of the Civil Procedure Rules allows the court to dismiss a suit or application for nonattendance while rule 7 allows the aggrieved party to apply to set aside that order and reinstate the suit (or application as in this case). In the adavit in support of the application, the applicant’s counsel has explained why she did not attend court in time on the material day. She stated that she had challenges joining the court’s link, and had to travel from Tigania to open court but by the time she arrived, the matter had been dismissed for non-attendance. 8. In this case, the applicant’s counsel has given an explanation as to why she did not attend court in time before the application was called out and subsequently dismissed. As already stated, the application has not been opposed by the respondents, though they were duly served. It has therefore not been shown that the respondents will suer any prejudice if the dismissal order made on May 17, 2022 is set aside and the application is reinstated for hearing on merit. 9. Further, the court has considered that this application was led on June 10, 2022 while the orders of dismissal were made on May 17, 2022 which is a period of about three weeks. I am therefore satised that the application was led timeously. I am also satised that the failure to attend court in time on May 17, 2022 has been explained suciently and the same is excusable. It has not been shown that the failure to attend court in time on May 17, 2022 was intentional or deliberate on the part of the applicant and her advocate. 10. In Shah - V- Mbogo ( 1967) EA 116 it was held that the exercise of discretion of the court to set aside exparte orders is to avoid injustice from accident, inadvertence or excusable mistake or error, but is not https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/12774/eng@2022-09-28 2

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designed to assist a person who has deliberately sought by evasion or otherwise to obstruct or delay the course of justice. In the present case, the overriding objective of the court would no doubt come to the aid of the applicant. 11. I note however, that the application herein is also seeking some substantive reliefs in respect of the application dated February 10, 2022 that was dismissed. In my view, it is only appropriate that the application be reinstated and heard on merit. I therefore decline to grant any substantive prayers sought in the application that was dismissed at this stage. 12. For the foregoing reasons, the application dated June 3, 2022 is allowed in the following terms-: a. The order made on May 17, 2022 dismissing the application dated February 10, 2022 is set aside. b. The application dated February 10, 2022 is hereby reinstated for hearing on merit on a date to be given by the court. c. Each party to bear his/her own costs. DATED, SIGNED AND DELIVERED AT MERU THIS 28TH SEPTEMBER 2022 In the presence of C/A Mwenda No appearance for the parties. C.K YANO ELC JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/12774/eng@2022-09-28 3

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