The Republic of Kenya v Fredrick Oluoch Omollo

[a] THAT the learned magistrate erred in law and in fact in arriving at a decision that was erroneous in the circumstance. [b] THAT the learned magistrate erred in law and in fact in having dismissed the appellant’s application dated 9 th February 2023 without considering the submissions of the appellant. [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 in attributing the mistake on the part of counsel on the appellant; [3] Accordingly, the appellant prayed that the ruling and order of the learned magistrate dated 16 th 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 26 th 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 2|Page HCCA NO. E083 OF 2023 JUDGMENT

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chambers of her counsel; which occurred immediately after counsel had successfully addressed the same court in another matter, being 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, moments prior to the power blackout. [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, and considering 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: [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. [6] 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 appellant made reference to the decision of the Court of Appeal in Shah v Mbogo & another [1967] EA 116 for the proposition that the discretion of the court is intended to be exercised to avoid injustice or hardship resulting from accident, 3|Page HCCA NO. E083 OF 2023 JUDGMENT

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inadvertence, or excusable mistake or error as was the case in her situation. [7] The contention of the appellant was that the power failure was a matter entirely beyond her control and the control of her counsel. She added that the fact 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, was proof enough of the truthfulness of the explanation. They submitted that courts have recognized that certain events, including power outages, may constitute force majeure or accidents that 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. [8] The appellant further submitted on her right to be heard, the principles of natural justice and the application of Article 159(2) (d) of the Constitution. She contended that the learned magistrate erred in elevating procedural technicalities over the need to do substantive justice, and posited that the right to be heard is one of the fundamental pillars of natural justice, captured in the Latin maxim audi alteram partem. The appellant made reference to Pashito Holdings Ltd & Another v Paul Nderitu Ndung’u & 2 Others [1997] eKLR, in which the Court of Appeal 4|Page HCCA NO. E083 OF 2023 JUDGMENT

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emphasized that a decision reached in breach of the rules of natural justice is void and of no effect. [9] According to the appellant, the trial court’s failure to allow the matter to proceed on the merits, despite a clear and justifiable explanation for non-appearance by her counsel, denied her a fundamental right to fair hearing under Article 50(1) of the Constitution. On the authority of Judicial Service Commission v Mbalu Mutava & Another [2015] eKLR, she submitted that the right to a fair hearing is a constitutional imperative whose breach renders the process flawed. [10] On whether a two-month delay was inordinate, the appellant relied on Ivita v Kyumbu [1984] KLR 441, and Agip (Kenya) Ltd v Highlands Tyres Ltd [2001] KLR 630, where 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. The appellant contended that, unlike the respondent, she stands to suffer irreparably if locked out of the seat of justice on account of an unintentional technological failure. It was therefore her prayer that the appeal be allowed and the dismissal order set aside to pave way for disposal on the merits of her suit. She also prayed for costs of the appeal. [11] The respondent relied on his written submissions dated 19 th May 2025. He proposed the following issues for determination: [a] Whether the trial court exercised its discretion judicially in dismissing the application? 5|Page HCCA NO. E083 OF 2023 JUDGMENT

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[b] Whether reinstatement of the application would amount to injustice against him. [12] 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. [13] 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. 6|Page HCCA NO. E083 OF 2023 JUDGMENT

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[14] 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 [201 5] eKLR, among other authorities, in which the court stated 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. [15] 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.” [16] 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 7|Page HCCA NO. E083 OF 2023 JUDGMENT

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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. [17] 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.” [18] 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.” [19] 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 8|Page HCCA NO. E083 OF 2023 JUDGMENT

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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.” [20] 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 ex-parte 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..." [21] 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..." [22] 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] 9|Page That each party to bear own costs of the appeal. HCCA NO. E083 OF 2023 JUDGMENT

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It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY THIS THIS 24TH DAY OF APRIL 2026 ……………………………………… OLGA SEWE JUDGE 10 | P a g e HCCA NO. E083 OF 2023 JUDGMENT

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