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was scheduled for hearing on 15.11.2018 and could, therefore, not be present. He urges the court to reinstate the motion for hearing on merits. Reliance was placed on Pithon Waweru Maina vs Thuku Mugiira (1982-1988) 1 KAR 171. 4. The 2nd respondent oppose the application through an adavit of Kaberia M’Mucheke sworn on 18.8.2020 on the basis that the applicant's lawyers were duly served with a hearing notice by way of EMS as per the address appearing in his pleadings followed by a proper adavit of service on record which the trial court used as a basis to nd there was a proper service for 15.11.2018. 5. The 2nd respondent denies that by the time the application was dismissed, there were any directions to dispose of the matter by way of written submissions so as to absolve the applicant from attending court for the main hearing. Again, the 2nd respondent avers that the application lacks merits, it was led after an unexplained inordinate delay; was an afterthought, and that litigation must come to an end. 6. The record of the court shows that the applicant led this matter under a certicate of urgency on 12.5.2014. Subsequently, on 14.5.2014, the applicant obtained leave to commence judicial review proceedings seeking orders of certiorari and prohibition to quash and stop the implementation of a decision made on 22.2.2014, by the 1st respondent out of an Objection Case No.1762 regarding Parcel No.1665 Akirangondu “A” Akirangondu – Laare Division. Leave was to act as a stay of the implementation of the said decision. 7. Upon issuance of the orders dated 16.5.2014, the applicant led a notice of motion dated 21.5.2014. 8. The 2nd respondent was served and led a replying adavit sworn on 2.9.2014, while the interested parties led written submissions dated 11.12.2014. Similarly, the exparte applicant led written submissions dated 5.12.2014. The 1st respondent, despite several directions given to put in a replying adavit, none was led by 19.7.2018. 9. After several mentions, it appears that a hearing date was given for 15.11.2018, on 19.7.2018, in the absence of the exparte applicant. The respondents were directed to serve the hearing notice upon the other parties absent on that day. It appears that Rose Wanjohi swore an adavit on 4.10.2018 saying that she served a hearing notice dated 4.10.2018 through EMS to Kurauka & Co. Advocates Chester House 1st Floor, RM 1 Koinange Street P.O Box 17586 0100 Nairobi. The EMS sheet was annexed thereto. Evidence of the date, receipt, or delivery of the EMS is lacking. 10. The parameters to apply on whether to reinstate or not to reinstate a dismissed suit were discussed in John Nahashon Mwangi vs Kenya Finance Bank Ltd (in liquidation) (2015) eKLR. 11. The court said that the fundamental principles of justice are enshrined in Articles 50 and 159 of the Constitution, on the right to be heard and the need to serve substantive justice to all parties. In Barnabas Maritim vs Manywele Korgoren & another (2016) eKLR, the court said that the discretion to set aside its order for dismissal of a case for non-prosecution was discretionary and must be exercised judiciously, based on justication given by the applicant for the delay in prosecuting the matter. 12. As for dismissal for non-attendance in Ngugi vs Thogo (Civil Application 372 of 2018 (2021) KECA 88 (KLR) (22nd October 2021 (Ruling), the blame for non-attendance was attributed to an alleged convoluted, imprecise and misleading communication from the Court of Appeal registry, with regard to the correct date on which the application was scheduled for hearing which was neither the applicant nor her advocate had control over. The court cited Joseph Kinyua vs. G.O Ombachi (2019) eKLR, that it was more preferable if litigation was brought to an end after all parties have been heard on merit and substantive justice administered, the very rules of the court that provides for timelines for the performance of an act, also allow the court to exercise discretion and extend the time within which https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13412/eng@2024-11-20 2

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to comply in the event of non-compliance. The court observed that Article 159 of the Constitution requires the court to administer substantive justice, while the overriding objective requires giving justice equally to all the parties for the ends of justice to be met. Further, the court said that there should also be considerations of the nature of the substratum of the litigation and the need to establish if reasonable grounds have been preferred for reinstatement and the prejudice to be suered by the opposite party. 13. The applicant has invited the court to intervene on the basis that there was no proper notice, the mistake was excusable, it should not be visited upon him, he had made attempts to prosecute his application by ling written submissions, and there will be more prejudice to him if he is not heard on merits, unlike the prejudice to the opposite parties, sucient and plausible cause for non-attendance to prosecute the application has been oered and that there was proper service of a hearing notice for 15.11.2018. 14. In Wachira Karani vs Bildad Wachira (2016), eKLR Mativo J, as he then was observed that sucient cause was a question of fact and the court has to exercise its discretion in the varied and exceptional circumstances in the case at hand, for there cannot be a straight jacket formula for universal application. In Ronald Mackenzie vs Damaris Kiarie (2021) eKLR, the court said that justice was justice for both the plainti and the defendant. The respondents have not expressed what prejudice they are likely to suer despite the inordinate delay. See also Philip Chemwolo & another vs Augustine Kubende (1982-1988) 1 KAR. 15. The failure to reinstate the notice of motion shall denitely drive the applicant out of the seat of justice. See Ivita vs Kyumbu (1984) KLR 441. Dismissal of a suit is a draconian measure. There is no evidence that the applicant has in the past conducted himself in a matter to show disinterest in prosecuting the motion. 16. Order 17 Rule 2 (6) of the Civil Procedure Rules and Section 3A, of the Civil Procedure Act, reserve an inherent power of the court to make such orders as are necessary for the ends of justice to be met or to prevent abuse of the court process. See Rose Njoki King’au & another vs Shaba Trustees Ltd & another (2018) eKLR. 17. The inherent power of the court means that courts are there to administer justice by balancing between the rights and interests of dierent parties, but within the connes of the law to ensure that the ends of justice are met. See Equity Bank Ltd vs West Link MBO Ltd (2013) eKLR and Board of Governors; Moi High School Kabarak & another vs Malcolm Bell (2013) eKLR. 18. The discretion to set aside an exparte judgment is intended to be exercised to avoid injustice or hardship resulting from an accident, inadvertence and excusable mistake, but not to assist a party who has deliberately or, whether by evasion to obstruct or to delay the cause of justice. See Shah vs Mbogo & another (1967) E.A 116. 19. Looking at the history of this matter, I am satised that the applicant merits his day in court. Justice can still be rendered in spite the delay since, as submitted by counsel for the applicant, the substratum of the proceedings is still intact. The upshot is that I reinstate for hearing on merits the notice of motion dated 21.5.2014. Since parties had led responses and written submissions save for the 1st respondent, I direct that written submissions be led within 7 days. Costs in the cause. DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT MERU ON THIS 20TH NOVEMBER, 2024 HON. C K NZILI https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13412/eng@2024-11-20 3

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JUDGE In presence of C.A Kananu Kurauka for the applicant https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13412/eng@2024-11-20 4

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