Mwangi v Letshego Kenya Limited & 2 others

5. The 2nd Respondent through the replying adavit of their counsel on record, Leonard K. Kirori, sworn on 27th February 2025 takes an opposing view. 6. The 2nd Respondent contends that the reasons advanced for reinstatement fall short of the threshold that would justify reopening the matter. They argue that a litigant who lets their case collapse through inattention should not expect the Court to rescue it without clear and compelling justication. 7. The parties were directed to canvass the application by way of written submissions. Issues for Determination 8. I have examined the application together with the supporting adavit, the replying adavit in opposition, the led submissions and the relevant authorities. 9. The question before the Court is plain. It is whether the explanation oered by the Applicant is sucient to resurrect a suit that has been laid to rest, or whether the integrity of procedural order demands that the dismissal stands. Analysis and Determination 10. Order 12 rule 7 of the Civil Procedure Rules vests the Court with the jurisdiction to revisit a dismissal made in the absence of a party. The Rule states that: “ Where under this Order judgment has been entered or the suit has been dismissed, the court, on application, may set aside or vary the judgment or order upon such terms as may be just.” 11. The discretion exists to serve justice, not to dispense favours to those who falter in their duties. 12. the Constitution forties this principle. Article 159(2)(d) requires courts to determine disputes without undue regard to procedural technicalities, but it does not authorise the abdication of orderly procedure. It simply obliges the Court to ensure that process serves justice, and not the reverse. 13. Kenyan jurisprudence has long recognised that the discretion to reinstate a suit is intended to prevent injustice rather than to reward indolence. See Sagoo & another v Mesa [2023] KEELC 21475 (KLR). 14. Counsel for the Applicant submits that the dismissal arose solely from the inadvertence of previous counsel and that the Applicant bears no personal fault. Moreover, the Applicant contends that on 11th November 2024, he was unable to attend when the matter was called out since he went to pick his brother from hospital. 15. In this regard, reliance is placed on Belinda Murai & others v Amos Wainaina [1978] KLR 278, which held that the error of an advocate should not deprive an innocent litigant of a hearing on the merits. Similarly, in Mbogo v Shah [1968] EA 93, the Court armed the fundamental principle that no party should be driven from the seat of justice without being heard, underscoring that procedural lapses must not extinguish substantive rights where the equities favour restoration. 16. The Applicant avers that the dismissal resulted from the inability of his former counsel on record to log into court due to network issues. 17. The Courts have expressed caution regarding technical diculties as a ground for setting aside dismissals. In Sagoo & another v Mesa (supra) the court stated: “ In ordinary circumstances, the reasons advanced by the Plainti’s counsel, that of a weak and unstable network connection resulting in inability to log into court would not pass https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18214/eng@2025-12-10 2

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muster. Courts have held severally that for such an excuse to be believable, there needs to be availed sucient evidence that counsel attempted to log in but was unsuccessful due to an unstable network connection or technical failures.” 18. In the present case, the Applicant relies solely on the averments in the supporting adavit to explain that his former counsel was unable to log in due to network issues. No independent evidence has been annexed to corroborate these claims. 19. Learned counsel for the 1st Defendant/ Respondent submits that the Plainti/ Applicant was aware of the hearing date when the suit was dismissed and has failed to demonstrate sucient cause as to why the Court should exercise the discretionary power of reinstatement in his favour. 20. Counsel for the1st Defendant/ Respondent placed reliance on various authorities urging the court to dismiss the application including: Wachira Karani v Bildad Wachira [2016] KEHC 6334 (KLR), Mbali v Villa Care Management Limited [2023] KEELRC 1983 (KLR). 21. Similarly, learned counsel for the 2nd Defendant/Respondent submits that there is no sucient reason why the Applicant failed to attend the hearing when the suit was dismissed despite the hearing date being taken by consent of the parties. 22. Nonetheless, the Court is also mindful that the discretion under Order 12 rule 7 is intended to prevent injustice and allow a fair hearing on the merits where possible. 23. The question then becomes whether, despite the absence of corroborating evidence, the averments are suciently plausible to warrant the exercise of discretion in favour of the Applicant, and whether any prejudice would result to the Respondents should the suit be reinstated. 24. Notably, the 2nd Respondent does not allege that they would suer any prejudice as a result of reinstatement. They contend that the reasons advanced by the Applicant are inadequate to justify reinstatement under Order 12 rule 7. 25. While the explanation rests solely on the adavit and lacks independent corroboration, the principle is clear that a litigant should not be turned away from the seat of justice where the default is excusable and no deliberate fault is attributable to them. 26. The discretion under Order 12 rule 7 exists precisely to prevent procedural misfortune from extinguishing substantive rights. 27. In the exercise of its discretion under Order 12 rule 7 of the Civil Procedure Rules, and guided by Article 159(2)(d) of the Constitution, the Court nds that the dismissal of the Applicant’s suit ought to be set aside. 28. The averments in the supporting adavit, though uncorroborated by independent evidence, establish a plausible explanation that the default was not attributable to any deliberate fault on the part of the Applicant. 29. Justice, not mere procedural formality, demands that the Applicant be aorded an opportunity to be heard on the merits. 30. Accordingly, I allow the application and make the following orders: i. The Order of 11th November 2024 dismissing the Plainti/ Applicant’s Originating Summons be and is hereby set aside ii. The Originating Summons dated 8th June 2023 is reinstated for hearing. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18214/eng@2025-12-10 3

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iii. That the Costs of the application shall be borne by the Plainti. DATED, SIGNED AND DELIVERED, AT THIKA THIS 10TH DAY OF DECEMBER, 2025 ......................................................... J. M. ONYANGO JUDGE In the presence of: Mr Nyabuti for Dr. Khaminwa for the Plainti Mr Ndegwa for Mr Oyando for the 1st Defendant Court Assistant: Hinga https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18214/eng@2025-12-10 4

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