Bosire & another v Ongeri

court’s own discretion, the le was placed aside. After I had completed the call-over, I again called out the le at 10.46am. There was again no appearance on the part of Mr. Sagwe or the applicants and also no appearance on the part of counsel for the respondent. My conclusion was that the applicants had lost interest in the application thus the failure to attend to prosecute it. I proceeded to dismiss their application dated 18 December 2024 with no orders as to costs and ordered the le to be closed. 4. Subsequently, this application was led. The application is based on the following grounds : a. That the applicants’ advocate was present in court virtually on 23 October 2025; his network dropped and he managed to come to open court. Unfortunately, he found the suit has been dismissed for non-attendance. b. That in all fairness, mistake of counsel should not be visited upon the innocent client. c. That the applicants stand to suer loss and injustice if the order sought to be set aside is left to stand. d. That the applicants have come to this court in good faith and promptly. 5. The application is supported by the joint adavit of the applicants. They depose that their advocate was engaged before Hon. Justice Odera in HCC No 1 of 2022 and Misc. Civil Case No E085 of 2025 (OS) and they have annexed a copy of his diary. They depose that after he nished his cases in that court, he rushed to this court and found the application dismissed. They depose that they were present in court waiting for the application but the same was done virtually. 6. I have considered the application. 7. I observe that the main motion which is dated 18 December 2024 is one seeking leave to appeal out of time against the judgment delivered on 4 December 2023 by the Chief Magistrates’ Court in the suit Kisii MCELC No E067 of 2022. It will be observed that the application was being led more than one year from the date of the judgment. It is not very clear to me what the dispute was or what the judgment was, as the judgment is not annexed in the application dated 18 December 2024. 8. Now, it is not the rst time that the application dated 18 December 2024 has been dismissed for nonattendance. I have already pointed out that it was earlier dismissed on 5 May 2025. The applicants led an application to reinstate giving the reason that their advocate mis-diarised the matter. I gave them benet of doubt and reinstated their application. You would now expect utmost diligence and vigilance given that the court had exercised its discretion in their favour but this was not to be. The applicant’s advocate was not present on 23 October 2025 despite the le being called out twice. 9. In the grounds in support of the application, it is said that the advocate had network challenges. However, when you read the supporting adavit, the reason now given is that the advocate was engaged before another court. If the applicants were honest, you would expect there to be consistency in the reasons they give. The applicants also say that they were in open court but the matter was dealt with virtually. That is not true. The practice of the court is that the Court Assistant is always in court. On the day that the application was dismissed, the applicants were not present in court and I in fact noted that both the applicants and their counsel were absent. The applicants are clearly now being completely untruthful. 10. I am afraid that in those circumstances I am not convinced to set aside the orders of 23 October 2025 and not persuaded to reinstate for a second time the application dated 18 December 2024. That application remains dismissed and this le will be closed. There will be no orders as to costs. 11. Orders accordingly. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18277/eng@2025-12-09 2

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DATED AND DELIVERED THIS 9 DAY OF DECEMBER 2025 JUSTICE MUNYAO SILA JUDGE, ENVIRONMENT AND LAND COURT AT KISII Delivered in the presence of : Mr. Sagwe for the applicants No appearance on part of Mr. Mageto for the respondent Court Assistant – David Ochieng. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18277/eng@2025-12-09 3

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