Ndilangi v China Road & Bridge Corporation (K) (Civil Case 517 of 2015) [2026] KEMC 117 (KLR)

c. 3. It is in the interest of justice that the said order is reviewed, varied and/or set aside and the suit filed herein is reinstated for hearing and determination. In the afidavit in support of the application, counsel reiterated the grounds on the face of the application and deposed that counsel handling the matter was caught up in the Saba saba demonstrations and as such, could not attend court. Counsel further deposed that the application was brought without unreasonable delay and that the defendant would not be prejudiced to the extent that cannot be compensated by way of costs. The Response 4. The defendant opposed the application by filing grounds of opposition. The grounds indicated that the application was unmerited, misconceived, brought in bad faith and an abuse of the process of the court. Main Issues for Determination 5. Having considered the application and the response by the defendant, I find that the main issue for determination is whether there are suficient grounds for the court to reinstate the application dated 2/5/2025. The Plaintifi's/applicant’s Submissions 6. The plaintifi relied entirely on the application and afidavit and did not file any submissions. Submissions by the Defendant/respondent 7. The defendant/respondent filed written submissions. The respondent argued that counsel for the plaintifi did not demonstrate how the Saba saba demonstrations afiected his ability to attend court yet the court sessions were being conducted virtually. That he could attend from any location. That the applicant is using the saba saba demonstrations as a scapegoat for their inability to attend court. The defendant urged the court to dismiss the application and relied on the authority of Mukavi Ways Co. Limited v Family Bank Limited [2020] eKLR. Analysis and Determination 8. I have considered the application as well as the response by the defendant. I have further considered the applicable law. At the very outset, some of the provisions relied upon by the applicant are inapplicable in this case. Sections 80 of the Civil Procedure Act and Order 45 that deal with review of court decisions are not appropriate for this kind of application. Similarly, Order 42 rules 6 and 21 are not applicable in the circumstances of this case. The Legal Provisions 9. Section 1A of the Civil Procedure Act provides as follows: “ “ (1) The overriding objective of this Act and the rules made hereunder is to facilitate the just, expeditious, proportionate and afiordable resolution of the civil disputes governed by the Act. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/117/eng@2026-04-28 2

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(2) The Court shall, in the exercise of its powers under this Act or the interpretation of any of its provisions, seek to give efiect to the overriding objective specified in subsection (1). (3) A party to civil proceedings or an advocate for such a party is under a duty to assist the Court to further the overriding objective of the Act and, to that efiect, to participate in the processes of the Court and to comply with the directions and orders of the Court". Section 1B provides as thus: “ (1) For the purpose of furthering the overriding objective specified in section 1A, the Court shall handle all matters presented before it for the purpose of attaining the following aims— (a) the just determination of the proceedings; (b) the eficient disposal of the business of the Court; (c) the eficient use of the available judicial and administrative resources; (d) the timely disposal of the proceedings, and all other proceedings in the Court, at a cost afiordable by the respective parties; and (e) the use of suitable technology". Section 3A provides: “ Nothing in this Act shall limit or otherwise afiect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court". Order 12 rule 7 of the Civil Procedure Rules provides: “ 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.” Analysis 10. There is no express provision in the Civil Procedure Rules that provides for dismissal of applications for non-attendance as well as reinstatement of the same. This is a general power given to a court to control its own procedure so as to prevent its being used to achieve injustice and also it is a power given to the court in order to maintain its character as a court of justice. By the same analogy the court is given the same powers to set aside its own orders in order to do justice. In practice, courts parties and courts invoke the provisions of Order 12 of the Civil Procedure Rules. The application dated 2/5/2025 was dismissed for non-attendance, and not want of prosecution as stated by the applicant. Whether or not to reinstate the application is a matter of the court’s discretion. 11. Discretion ought to be exercised judiciously; not arbitrarily, capriciously or whimsically. In Leiyagu v Independent Electoral and Boundaries Commmission & 2 others [2013] KECA 282 (KLR), the Court of Appeal restated the principle that the court's discretion to set aside an ex parte judgment or order for that matter, is intended to avoid injustice or hardship resulting from an accident, inadvertence https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/117/eng@2026-04-28 3

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or inexcusable mistake or error but not to assist a person who deliberately seeks to obstruct or delay the course of justice. The right to a hearing has always been a well-protected right in our Constitution and is also the cornerstone of the rule of law. 12. In my view, the factors that the court ought to consider on an application to reinstate a suit or application which was dismissed for non-attendance are as follows: 1. Reason for Non-Attendance. The applicant must give a plausible and satisfactory explanation as to why they failed to attend court. The court would be more lenient to mistake, inadvertence or excusable error but deliberate disregard of the court process may not be excused; 2. Whether the Application Was Made Without Delay. The court looks at how quickly the applicant moved after dismissal. Prompt action favors reinstatement; inordinate delay weighs against it; 3. Whether the Applicant Has a Meritorious Case. The court would consider whether the suit/application raises triable issues. It does not conduct a full trial, but checks if the case or application is not frivolous; 4. Prejudice to the Respondent. The court would also consider whether reinstatement will cause undue prejudice that cannot be compensated by costs. Courts balance this against the applicant’s right to be heard; 5. Conduct of the Applicant. The applicant’s past behavior matters. If the applicant has a history of repeated non-attendance, or failure to comply with the court’s directions, such pattern of indolence would weaken the application; 6. Interest of Justice / Right to Be Heard. The courts would invariably lean towards substantive justice over technicalities. This is in view of Article 50(1) of the Constitution that guarantees the right to a fair hearing and Article 159(2) (d) of the Constitution that enjoins courts to administer substantive justice without undue regard to procedural technicalities; 7. Whether the Dismissal Was Regular. If the dismissal occurred without proper service or notice, reinstatement is almost automatic. If the dismissal was regular, the applicant must satisfy the court on the above factors. 13. There is no allegation that the applicant had no notice of the date. As such, the dismissal was regular. The reason given for non-attendance is that counsel was afiected by Saba saba demonstrations. I agree with the defendant that it has not been demonstrated how counsel was prevented from appearing yet he was well aware that the proceedings are ordinarily held virtually. Mere saying that he was caught up with the Saba saba demonstrations cannot sufice. I find that the reason given is not plausible as no particulars of the same were disclosed. How did the demonstrations prevent counsel from appearing virtually? 14. The application was made promptly after the dismissal. The application sought to be reinstated is not frivolous. It is arguable. Having perused the record, I find that no prejudice will be occasioned to the defendant if the application dated 2/5/2025 is reinstated. The defendant had not even responded to https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/117/eng@2026-04-28 4

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the application dated 2/5/2025 and can be compensated by way of costs. There is nothing on record to show that the plaintifi has a habit of missing court sessions or dishonouring directions given by the court. Although the plaintifi handled the application so casually and failed to give a satisfactory explanation as to why he did not attend court on 7/7/2025, I find that it would be in the interest of justice to allow the application. As rightly held by the Court of Appeal in the case of Pithon Waweru Maina v Thuka Mugiria [1983] eKLR, to deny a part a hearing should be the last resort of a court. Disposition 15. In view of the foregoing, I find that the application dated 9/7/2025 is meritorious. I proceed to allow it in the following terms: a. The order made on 7/7/2025 dismissing the application dated 2/5/2025 for non-attendance is hereby set aside; b. The application dated 2/5/2025 is hereby reinstated for hearing; c. Costs of this application are awarded to the defendant; d. Owing to the age of the suit, the court shall give directions as to the hearing of the application dated 2/5/2025, immediately upon delivery of this ruling. DATED, SIGNED AND DELIVERED IN OPEN COURT AT MAKINDU THIS 28TH DAY OF APRIL, 2026. Y.A SHIKANDA SENIOR PRINCIPAL MAGISTRATE. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/117/eng@2026-04-28 5

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