Gjmm v Pwk

Issues for Determination. 6. Having considered the Applicant’s application, the only issue arising for determination is whether this Court should set aside the judgment delivered on 24/11/2022. Analysis 7. The relevant law governing setting aside of judgment or dismissal is Order 12 Rule 7 of the Civil Procedure Rules. It provides as follows: “ Where under this order judgment has been entered or a suit dismissed, the Court, on application, may set aside or vary the judgment or order upon such terms as may be just” 8. The Court is vested with wide discretion which must be exercised judiciously when it comes to deciding on an application to set aside its own order or judgment. Refer to the case of Racheal Njango Mwangi (Suing as Personal Representative of the Estate of Mwangi Kabaiku) v Hannah Wanjiru Kiniti & another (2021) eKLR where the Court held thus;“ For the Court to exercise its discretion in favour of the Applicant, he or she has to satisfy it that there is sufficient cause or reason to warrant it to be put into use in setting aside the order of dismissal and subsequently reinstate the suit.” 9. In this instance the Applicant contends that there is an error on the face of the record in that the Court proceeded to issue final orders on the whole suit instead of first dealing with the application seeking temporary injunctive orders pending hearing and determination of the main application. 10. This Court has carefully perused the Court record and notes that on the 24/02/2022 the parties were directed to file and serve written submissions within seven (7) days. The record further refiects that there was non-compliance by the Applicant on the 28/04/2022 but the Applicant later complied. 11. It is apparent that on the date set down for hearing of the application neither Counsel and or the Applicant were in attendance; the trial Court then proceeded and subsumed the application for injunctive orders together with the main application as they were dated on even dates. 12. Upon perusing the judgment this Court notes that the trial Judge addressed the issue as to “Whether the Applicant is entitled to the reliefs sought?” . The trial Court elaborated on the principles under which a person may be granted injunctive orders and cited the renowned case of Giella -vs- Cassman Brown and made the following findings; 13. “ 37. Having found that there was no proof that the properties listed are matrimonial properties, I decline to allow the reliefs sought. 38. Final Orders 1) The Originating Summons is hereby dismissed. 2) .....” The Applicant’s contention is that his application had been dismissed without being heard on merit. In this instance the Applicant and his Counsel were both absent when the case proceeded. The trial Court proceeded to subsume the two applications and addressed crucial points of law and in particular addressed the issue of whether there was ever an existing marriage between the parties and it made a negative finding on this issue; https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6659/eng@2026-05-15 2

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14. Although this Court has unfettered discretion that can be exercised in favour of the Applicant, he must give a reasonable explanation that is persuasive or satisfactory to warrant the orders sought. No such explanation has been given as to why they were both not in attendance to either prosecute the application or the main suit. 15. The Applicant has urged this Court to set aside the impugned judgment; the Supreme Court has held that a Court can set aside its own orders or judgments if it is demonstrated that the same was obtained through fraud, deceit or misrepresentation or that the judgment lacked competency or it was made under a repealed statute. The Applicant has not placed any material to demonstrate whether this impugned judgment was obtained in the manner as set out above. 16. This Court’s finding is that the Applicant had not been diligent in pursuing his right to be heard in a satisfactory manner and is satisfied that the Applicant is deserving of the orders sought. Findings and Determination 17. For the forgoing reasons this Court makes the following findings and determinations; i. The application for review of the judgment does not meet the desired threshold nor is there any good reason advanced to warrant setting it aside. ii. The Application is found to be devoid of merit and it is hereby dismissed. iii. This being a family matter each party to bear their own costs. iv. The Applicant is at liberty to file an appeal to the Court of Appeal against this Court’s decision of 24th day of November, 2022. Orders Accordingly DATED, SIGNED AND DELIVERED VIA TEAMS AT VOI THIS 15TH DAY OF MAY, 2026 A. MSHILA JUDGE In the presence of; Sanja/Millicent – Court Assistants No appearance – for the Respondent No appearance - for the Applicant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6659/eng@2026-05-15 3

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