Sarah Akinyi v Fredrick Oluoch Omollo

(c) That the learned magistrate erred in law and in in fact in making a decision based on the wrong principle of law. (d) That the learned magistrate erred in law and in fact in failing to appreciate and take into account the pleaded force majeure. (e) That the trial court erred by visiting the mistake on the part of counsel on her; 3. Accordingly, the appellant prayed that the ruling and order of the learned magistrate dated 16th August 2023 be set aside; that the application be allowed; and that the costs of the appeal be borne by the respondent. 4. The appeal was canvassed by way of written submissions, pursuant to the directions given herein on the 26th February 2025. In compliance with those directions, the appellant filed written submissions dated 25th April 2025. She reiterated the factual background of her appeal and stated that the failure to attend the virtual hearing was occasioned by a sudden power failure at the chambers of her counsel, which occurred immediately after Counsel had successfully addressed the same court in Mbita SRMCC No. E009 of 2022: George Odhiambo Otieno (Suing as the legal representative of the Estate of Francis Otieno Ombalo (Deceased) v the Hon Attorney General & Another. 5. The appellant contended that the learned magistrate erred in law and in fact in dismissing the application, despite clear and reasonable cause for non-attendance. She also submitted that the delay of only two months was neither inordinate nor prejudicial to the respondent. In the premises, the appellant proposed the following issues for determination: 6. (a) Whether the trial court exercised its discretion judiciously in dismissing the application. (b) Whether a delay of two months constitutes undue or inexcusable delay warranting the dismissal of a suit. (c) Whether justice would best be served by reinstatement of the suit for hearing on its merits. It was further the submissions of the appellant that the discretion to set aside orders of dismissal should be exercised judiciously, with the overarching aim of doing substantive justice. The Court of Appeal in Shah v Mbogo & another [1967] EA 116 held that: “ This discretion is intended so to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error..." 7. The contention of the appellant was that the power failure at Counsel’s chambers was a matter entirely beyond her control. She urged the Court to take into consideration that her counsel had just addressed the same court moments earlier in Mbita SRMCC No. E009 of 2022: George Odhiambo Otieno (Suing as the Legal Representative of the Estate of Francis Otieno Ombalo (Deceased) v the Hon Attorney General & Another and find that it established the genuineness and bona fides of the explanation for non-attendance. 8. The appellant further submitted that courts have recognized that certain events, including power outages, may constitute force majeure or accidents and therefore can justify absence or default. In this regard, the appellant relied on Crown Beverages Ltd v Sendy Ltd [2022] eKLR, and Francis Kariuki Njiru & 7 Others v Barclays Bank of Kenya Ltd [2021] eKLR. 9. The appellant further submitted on her right to be heard, the principles of natural justice the Application of Article 159(2)(d) of the Constitution and contended that the learned magistrate erred in https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6683/eng@2026-04-24 2

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elevating procedural technicalities over the need to do substantive justice as dictated by Article 159(2) (d) of the Constitution. In her submission, the lower court failed to properly balance the minimal delay and the unintentional absence against the appellant’s constitutional right to be heard. She posited that the right to be heard is one of the most fundamental pillars of natural justice, captured in the Latin maxim audi alteram partem, that no person should be condemned unheard. She relied on Pashito Holdings Ltd & Another v Paul Nderitu Ndung’u & 2 Others [1997] eKLR, in which the Court of Appeal emphasized that: “ A decision reached in breach of the rules of natural justice is no decision at all. It is void and of no effect.” 10. The appellant also submitted that the trial court’s failure to allow the matter to proceed on the merits, despite a clear and justifiable explanation for non-attendance, denied her the fundamental right of access to justice and fair hearing under Article 50(1) of the Constitution. On the authority of Judicial Service Commission v Mbalu Mutava & Another [2015] eKLR, the appellant submitted that the right to a fair hearing is a constitutional imperative whose breach renders the process flawed. 11. On whether there was inordinate delay, the appellant contended that a delay of two months does not, in itself, amount to inordinate or inexcusable delay. She relied on Ivita v Kyumbu [1984] KLR 441, in which the court held that: “ The test is whether the delay is prolonged and inexcusable, and, if it is, can justice be done despite the delay?" 12. The appellant also cited Agip (Kenya) Ltd v Highlands Tyres Ltd [2001] KLR 630, in which the court emphasized that even if there is some delay, where there is no prejudice to the other party, the court ought to incline towards hearing the matter on merit. In her submission, no prejudice has been demonstrated by the respondent as a result of the two-month delay. She added that, to the contrary, she stands to suffer irreparably if locked out of the seat of justice due to an unintentional technological failure and a negligible delay. 13. Accordingly, the appellant urged the Court to find that the trial court exercised its discretion injudiciously and failed to consider the relevant facts and guiding legal principles. She therefore prayed that the appeal be allowed and the dismissal set aside, and that the lower court suit be reinstated and set down for hearing on the merits. The appellant also prayed that the costs of the appeal be awarded to her. 14. On his part, the respondent relied on his written submissions dated 19th May 2025 in which he proposed the following issues for determination: 15. (a) Whether the trial court exercised its discretion judicially in dismissing the application? (b) Whether reinstatement of the application would amount to injustice against the Respondent. The respondent submitted that the decision of the court on the reinstatement of suits is purely discretionary and ought to be exercised on defined principles of law. He made reference to Article 159 of the Constitution and the case of Esther Wamaitha Njihia & 2 Others v Safaricom Ltd [2014] eKLR for the proposition that the discretion, though broad, should primarily aim at achieving justice for the parties involved. He urged the Court to note that the appellant's suit was dismissed twice for want of prosecution; and that the dismissals were founded on the principle that litigation must be expedited. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6683/eng@2026-04-24 3

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16. The respondent further submitted that the appellant did not indicate the efforts her counsel made to ensure that the court was aware of the alleged power blackout; or make any effort to reach out to another advocate in Homa Bay to hold his brief with a view of having the matter placed aside. He also argued that the suit belonged to the appellant and not her counsel; and therefore took issue with the fact that the appellant sat back as the suit remained dormant for an entire year. According to the respondent, the appellant’s continued absence and lack of action demonstrated a clear pattern of negligence and disinterest in pursuing her case. He relied on Lelei & 2 Others v Kimetto & 30 Others (Environment & Land Case 143 Of 2017) [2024] KEELC 1220 (KLR) to buttress his arguments. 17. Lastly, the respondent submitted that, whereas the Court has the discretion to set aside dismissal order and reinstate a suit or application dismissed for want of prosecution, the prejudice that he stands to suffer ought to be taken into account as well. He submitted that he reasonably concluded that the matter had come to an end, and therefore instructed his advocate to close the file; and therefore that reinstatement of the suit will burden him unnecessarily. He relied on Fran Investments Limited v G4S Security Limited [2015] eKLR, among other authorities, for the submission that delay that has not been satisfactorily explained is a source of prejudice not only to the respondent but also to the fair administration of justice. Therefore, the respondent prayed for the dismissal of this appeal and that the costs thereof be borne by the appellant. 18. Having considered the written submissions filed by the parties, it is manifest that the key issue for determination is simply whether a plausible explanation has been offered as to why the respondent and his counsel did not attend court for hearing on 18th October 2021. This is because Order 12 Rule 7 of the Civil Procedure Rules under which the instant application has been brought, recognizes 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.” 19. The application is premised on the ground that power failure at Counsel’s chambers caused communication break-down between him and the court; hence the dismissal for want of prosecution. The appellant endeavoured to demonstrate that the power outage happened just after he had addressed the same court moments in Mbita SRMCC No. E009 of 2022: George Odhiambo Otieno (Suing as the Legal Representative of the Estate of Francis Otieno Ombalo – Deceased) v the Hon Attorney General & Another. 20. In my careful consideration a plausible justification had been given for the setting aside of those ex parte proceedings and judgment, and that the power outage that occasioned communication breakdown was not an occurrence within the control of either the appellant or her counsel. Indeed, in Crown Beverages Ltd v Sendy Ltd [2022] eKLR, it was held that: “ An event that is unforeseeable and beyond the control of a party, including power outages or internet failure, can under the right circumstances qualify as force majeure and must be viewed through a lens of fairness and practical reality.” 21. Similarly, in Francis Kariuki Njiru & 7 Others v Barclays Bank of Kenya Ltd [2021] eKLR, the court stated: “ Mistakes or lapses arising from technological or logistical failures should not be visited upon the litigant where they are promptly explained and where no prejudice is caused to the opposing party.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6683/eng@2026-04-24 4

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22. Article 159(2)(d) of the Constitution mandates that substantive justice be elevated above excusable procedural technicalities. Hence, in Juma & another v Attorney General [2003] eKLR it was held: “ It is an elementary principle in our system of the administration of justice, that a fair hearing within a reasonable time, is ordinarily a judicial investigation and listening to evidence and arguments conducted impartially in accordance with the fundamental principles of justice and due process of law and of which a party has had a reasonable notice as to the time, place and issues or charges, for which he has had a reasonable opportunity to prepare at which he is permitted to have the assistance of a lawyer of his choice, a he may afford and during which he has a right to present his witnesses and evidence in his favour, a right to cross-examine his adversary’s witnesses, a right to be appraised of the evidence against him in the matter so that he would be fully aware of the basis of the adverse view of him for the judgement, a right to argue that a decision be made in accordance with the law and evidence.” 23. Thus, the overall objective of the Court in such instances is to ensure even-handedness in the adjudication of disputes; and therefore where a convincing reason has been given by a party for failure to attend court, the Court ought to accord such a party a chance to be heard. In CMC Holdings Limited v Nzioki [2004] 1 KLR 173, it was held that: “ In law, the discretion that a Court of law has, in deciding whether or not to set aside an exparte order…was meant to ensure that a litigant does not suffer injustice or hardship as a result of among other things an excusable mistake or error. It would...not be proper use of such a discretion if the Court turns its back to a litigant who clearly demonstrates such an excusable mistake, inadvertence, accident or error..." 24 Similarly, in Philip Chemwolo & Another v Augustine Kubende [1982-88] KAR 103, it was observed that: “ ...the broad equity approach to these matters is that unless there is fraud or intention to overreach, there is no error or default that cannot be put right by payment of costs..." 25. In the premises, I find merit in the appeal. The same is hereby allowed and orders made as hereunder: (a) That the ruling and order of the subordinate court dated 16th August 2023 be and is hereby set aside; (b) That the lower court suit be reinstated and set down for hearing and determination on the merits; (c) That each party to bear own costs of the appeal. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY THIS THIS 24TH DAY OF APRIL 2026. ........................ OLGA SEWE JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6683/eng@2026-04-24 5

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