Mohan Galot Industries Limited v Mavoko Sub County & another (Environment and Land Petition 20 of 2018) [2025] KEELC 7507 (KLR)

and intermittent internet connectivity; (c) there was no delay in the filing of the instant motion, and the petitioner’s submissions have been duly filed. 3. The motion is unopposed and, as directed by the court, the law firm of Ms Tiego & Company Advocates filed written submissions on 21/05/2025. Accordingly, the court has thoroughly examined the motion, its grounds, afidavit, and the petitioner’s arguments, which are supported by relevant laws and case precedents. The single issue for determination, which aligns with the issues as framed by the petitioner, is whether the petitioner has met the legal threshold to warrant the grant of the sought orders. 4. Regarding the relevant law, as outlined in the motion and afirmed in the petitioner's submissions, it is found in Order 12 Rule 7 of the Civil Procedure Rules. This law permits a party to approach the court with an application requesting it to exercise its discretionary power and set aside or vary the judgment or order on such terms as may be just. A review of the court records shows that the petition was dismissed for want of prosecution. 5. The petitioner submits that it reafirms this court's discretionary power to set aside ex parte judgments or orders. To it, this discretion should be exercised to prevent injustice or hardship caused by accidents, inadvertence, or excusable mistakes, rather than to assist parties who intentionally hinder or delay justice. These court associates itself with these principles as afirmed in the case of Richard Ncharpi Leiyagu v Independent Electoral Boundaries Commmission & 2 others [2013] KECA 282 (KLR). To support these principles, the petitioner refers to the decision of Thomas -vs- Aiyabei & another (Environment & Land Case E020 of 2022) [2025] KEELC 2906 (KLR), where the court acknowledged that counsel's failure to attend due to a misdiarised date and internet issues was an excusable mistake and should not be penalised by dismissing the litigant’s case. 6. When considering these principles, it must be remembered that the burden of proof rests on the party seeking the court’s discretion to reinstate a suit and to provide suficient and plausible reasons in support of the application. This court has examined the reasons presented by the petitioner regarding their failure to attend court on 25/04/2023, and it is deemed that the explanation that counsel misheard the court when issuing the hearing date is not tenable, given the existence of the e-filing system. Aside from orally issuing dates in court, the court’s electronic system has implemented additional automated mechanisms to inform parties of hearing/mention dates. This position was well elaborated in the decision of Maina v J.K. Horeria t/a Horeria & Company & another [2023] KEELC 16919 (KLR) as follows:“ It is worth noting that in this era of e-filing that was oficially launched by the Judiciary on July 1, 2020 the e-filing court systems usually sends parties automated notifications either emails or Short Message Services (SMS) notifying parties of upcoming court dates and any charges (sic) in the schedule. Parties have always been urged time without number to embrace the said technology. The proceedings that Counsel for the Defendant seeks to set aside were definitely post the launch/commencement of court’s e-filing system.” 7. This automated message may clarify why Mr. Tiego attended the court on the pertinent hearing date, despite encountering technological dificulties. Therefore, this court concludes that the claim of misdiarization is not credible. However, the petitioner’s counsel has elucidated the circumstances that transpired on the day of the hearing, and this court is inclined to exercise leniency by giving the benefit of the doubt to the counsel and reinstating the petition. The petitioner mitigated the nonattendance by promptly submitting the current motion. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7507/eng@2025-11-04 2

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8. For the foregoing reasons, the notice of motion dated 14/05/2023 is allowed by issuing the following orders:a. That the order of this court made on the 25/04/2023 dismissing the petition together with all other consequential orders be and are hereby set aside. b. The petition is hereby reinstated for hearing and determination on its merits. c. A mention date shall be given for directions on the hearing of the petition. Orders accordingly. DELIVERED AND DATED AT MACHAKOS THIS 4TH DAY OF NOVEMBER, 2025. HON. A. Y. KOROSS JUDGE 11.2025 Ruling delivered virtually through Microsoft Teams Video Conferencing Platform In the presence of; Ms Kanja Court Assistant. Miss Onyango holding brief for Mr. Tiego for petitioner/applicant. M/s Ndunda for 1st respondent. N/A for 2nd respondent. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7507/eng@2025-11-04 3

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