keelc-2025-05520

3. He deposes that when the application came for inter parties hearing on 18th February 2025, the 1st defendant was given time to file a replying afidavit; that he filed a replying afidavit on 11th March 2025 dated 10th March 2025 but had dificulty logging in during morning call over on 11th March 2025 when the application came for inter parties hearing due to loss of power; that at 9.35 a.m., he learnt that the application was allowed on account that the application was unopposed. He states that his non-attendance was not deliberate but caused by circumstances beyond his control; that the order of injunction granted is tantamount to evicting the 1st defendant from the suit property which is highly prejudicial to him. He urges the court to review and set aside the impugned orders of 11th March, 2025 and proceed to deliver a considered ruling taking the replying afidavit into account. 4. In opposition, the plaintifi/ respondent file a replying afidavit sworn on 5th April 2025, which the court will not consider as it was not paid for. 5. Pursuant to court’s directions given on 20th May 2025, the application was disposed ofi by way of written submissions. 6. Only the applicant/1st defendant filed submissions dated 5th June, 2025. He identified one issue for determination which is whether the application is merited and submitted that he has adduced suficient reason and grounds to be granted the orders sought. He gave his reason as connectivity challenges coupled with power outage. Further, that if he had succeeded in logging in, he was going to inform the court that he had already prepared a replying afidavit which was in the process of being filed. He submitted that mistake of counsel should not be visited on the 1st defendant and relied on the cases of Sadar Mohamed v Charan Singh and Another, Belinda Murai & others v Amos Wanaina (1978) eKLR, Shah v Mbogo (1967) EA 116 and Branco Arabe Espnol v Bank of Uganda (1999) 2 (EA). 7. I have looked at the court tracking system to establish what time the replying afidavit dated 10th March 2025 was filed and this is what was captured; i. The replying afidavit was uploaded in the court tracking system on 11th March 2025 at 9.35 a.m ii. A debit note was raised at 10.01 a.m iii. Payment was made at 11.53 a.m on 11th March 2025 8. It is clear from the court tracking system that by the time the court issued the impugned orders between 9.00 a.m. and 9.35 a.m., the replying afidavit had not been filed and the application stood unopposed contrary to what is stated in paragraph 4 of the supporting afidavit by counsel for the 1st defendant; ‘That on 11th March 2025, the 1st defendant filed a replying afidavit sworn in 10.03.2025 and at the time when the application came for hearing, on 11.03.2025, the plaintifi’s said application was allowed on grounds that the same was unopposed’ and paragraph 9 of his submissions, …..the failure to be in court by the 1st defendant’s counsel to inform the court that a replying afidavit to the plaintifi’s application had already been prepared and was in the process of being filed was not deliberate and was not designed to delay the cause of justice but was cause by genuine and suficient reason’’ 9. The case management system shows that the replying afidavit was filed two hours after the application was heard and orders given. Counsel for the 1st defendant states that the 1st defendant was present in open court but when the court called the file out, only counsel for the plaintifi responded/was present. For the above reasons, I am not satisfied with the explanation given on why the replying afidavit was not filed on time and find no suficient reason to persuade me exercise my discretion and review/ set aside the orders issued on 11th March 2025. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5520/eng@2025-07-23 2

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10. However, l need to clarify that the order given restraining the defendants, either by themselves or through their servants and or agents from trespassing into, interfering with and/ or in any other way dealing and or doing any other acts inconsistent with the plaintifi’s/ applicants peaceful occupation and/ or possession of all that parcel of land namely Baringo/Kiboino B/285 was not be used to evict any person in occupation of the suit property pending the hearing and determination of the suit. 11. For the above reason, l find the application to be without merit and l dismiss it with no orders on costs as the respondent did not pay for the replying afidavit. 12. Orders accordingly. DATED, SIGNED AND PUBLISHED AT KABARNET THIS 23RD DAY OF JULY, 2025 L. N. WAITHAKA JUDGE ln the absence of all the parties;N/A for the Appellant N/A for the Respondent Court Assistant: Christine https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5520/eng@2025-07-23 3

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