' BACKGROUND
1. Vide a Notice of Motion dated 21st May 2024 and filed through the firm of A.N. OERI & Company Advocates, the Applicants herein sought the following orders THAT: -
1. The Honourable Court be pleased to set aside the proceeding and Orders given on 04 December 2023 dismissing the Applicant''s Application dated 26th July 2023 for non-attendance by the Applicant.
2. The Honourable court be pleased to reinstate the Applicant''s Application dated 26th July 2023 and allocate a hearing date on a priority basis.
3. The costs of the Application be in the cause.
2. The grounds on the face of the application were that;
1) by an order given herein on 04 December 2023 made pursuant to an application by the 1st and 2nd contemnor herein, this honourable court inadvertently dismissed the application for contempt of court dated 26th July for non-attendance by the applicant.
2) The said application dated 26th July 2023 was dismissed when the matter had come up in court for a mention for directions and during which time the Applicant was experiencing connectivity issues as the link provided at www.kenyalaw.org was not working and counsel for the Applicant was therefore unable to connect into and address to connect into and address the court online on the said Application.
3) The failure by counsel for the applicant to attend court on 4th December 2023 were therefore inadvertent and beyond the Applicants control, and therefore the applicant was denied an opportunity to show cause why the Application dated 26th July 2023 should not be dismissed for non-attendance.
4) It is also trite law that the matter cannot be dismissed either for non-attendance or at all during a mention for a matter, and a hearing notice, and/or a notice to show cause to be issued to a party before a matter is dismissed by the court, which did not happen in the circumstances of this case
5) As a result, the Applicant was denied the opportunity to show cause why this Application dated 26th July 2023 should be dismissed.
6) The Application dated 26th July 2023 raises various triable issues and seeks to defend the authority and dignity of this honourable court and the respect of its orders, and the Applicant is keen on prosecuting the said Application.
7) The Applicant has at all times been interested in prosecuting the Application dated 26th July 2023 and the failure by the Applicant to attend court on 4th December 2023 and the failure was an honest mistake of his counsel that should not be visited on an innocent litigant has been explained and the Applicant seeks this honourable court’s indulgence for the same to be deemed excusable.
8) The applicant got to know that the application dated 26th July 2023 was dismissed for non-attendance during the mention of this matter on 20th May 2024 hence this Application has been brought without delay.
9) Unless the orders sought herein are granted, the Applicant’s right to a fair hearing and to have its grievance determined by application of law under article 50 of the Constitution will be infringed.
10) The 1st and 2nd Contemnor have not purged the contempt set out in the application dated 26th July 2023 herein, and the same remains a continuing and clear affront to the dignity and authority of this honourable court. It is therefore important that directions for reinstatement of the Application dated 26th July 2023 are given expeditiously.
11) The respondent will not suffer any prejudice if this Application is allowed, and it is therefore in the interest of justice that the orders sought be granted.
Analysis and Determination
3. The Applicant depones that he has at all times been interested in prosecuting the Application dated 26th July 2023 and failure to attend on 4th December 2023 was an honest mistake of his counsel and that he got to know that the Application was dismissed for non-attendance during the mention of this matter hence the Application has been brought without delay.
4. On the other hand, the 1st & 2nd Respondents vide a replying affidavit avers that on 7th September 2023 when the matter came up in court and they were given 5th September 2023 where the court did not sit and the matter was moved to 7th September, 2023 where the 1st and 2nd contemnor were given 7 days to file their response in regard to the Application dated 26th July 2023 and the matter was coming up for mention on 5th October 2023 to confirm compliance and take directions on hearing of the Application. However on that day they court stated that the proceedings were incomplete as some documents could not be traced in the court file and directions were that the matter to be mentioned on 9th October 2023 where the Applicant applied to withdraw proceedings against the 3rd, 5th, and 6th contemnors only and further applied to be granted time to file a further affidavit and submission and were given 14 days in correspondence the 1st 2nd and 4th Contemnors were granted leave to file their submissions upon service and it was directed that mention to confirm compliance to take a ruling date on 4th December 2023 where both counsel for the Applicant and the Applicant were not in court.
5. I have carefully re-considered the application, the supporting and replying affidavits and the able submissions by both counsel herein.
6. Order 12 Rule & 7 of the civil procedure rules provides that, 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’’.
7. It is thus clear that the court has discretion to set aside dismissal orders on such terms that it may deem just. In the case of Shah vs Mbogo (1979) EA 116, it was held “This discretion is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist a person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice.”
8. The main reason counsel gave for not attending court was that he had a network challenge on the material day he experienced connectivity issues as the link provided at www.kenyalaw.org was not working and counsel for the Applicant was therefore unable to connect into and address to connect into and address the court online on the said Application was dismissed for non -attendance. In dismissing the Application, it was considered that the age of the matter, the conduct of the appellant in delaying the matter, and the fact that the application was filed about 5 months down the line after the dismissal. He found that no sufficient cause had been established to warrant reinstatement of the suit as the other matters for that day proceeded seamlessly. I will rely on the case of Shah vs Mbogo (Supra) and Wachira Karani vs Bildad Wachira (2016) EKLR where the supreme court cited the Supreme Court of India in the case of Parimal vs Veena, where it was held that:-
“Sufficient cause" is an expression which has been used in a large number of statutes. The meaning of the word "sufficient" is "adequate" or "enough", in as much as may be necessary to answer the purpose intended. Therefore, the word "sufficient" embraces no more than that which provides a platitude which, when the act is done, suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the viewpoint of a reasonable standard of a curious man. In this context, "sufficient cause" means that the party had not acted in a negligent manner or there was want of bona fide on its part in view of the facts and circumstances of a case, or the party cannot be alleged to have been "not acting diligently" or "remaining inactive." However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously."
9. The reason given for non -attendance of the applicant’s counsel in court was that Counsel for the applicant had a challenge logging in to the court as the login details given on the Kenya law report portal were not working . This court takes Judicial notice that as s at 4.12.23 the courts still had some teething problems with the Links to virtual hearings and stability of the system and internet . I will give the applicant a benefit of doubt . I find that sufficient cause has been given by the applicant for not attending court on 4.12.23.
10. On whether the delay in filing the application as inordinate The Application was dismissed on 4.12.23 and the instant application was filed 5 months and 17 days after the said orders in question. In the case of Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] KECA 701 (KLR),it was held that ‘’The law does not set out any minimum or maximum period of delay. All it states is that any delay should be satisfactorily explained. A plausible and satisfactory explanation for delay is the key that unlocks the court’s flow of discretionary favour. There has to be valid and clear reasons, upon which discretion can be favourably exercisable. ‘’ I find the delay in filing the application was not unreasonable .
11. The application dated 21.5.24 is merited, I allow it and reinstate the application dated 26.7.23 in the interest of justice . with Costs to the respondents. Mention on 18.11.25 for directions on the application 26.7.23.
'
1. Vide a Notice of Motion dated 21st May 2024 and filed through the firm of A.N. OERI & Company Advocates, the Applicants herein sought the following orders THAT: -
1. The Honourable Court be pleased to set aside the proceeding and Orders given on 04 December 2023 dismissing the Applicant''s Application dated 26th July 2023 for non-attendance by the Applicant.
2. The Honourable court be pleased to reinstate the Applicant''s Application dated 26th July 2023 and allocate a hearing date on a priority basis.
3. The costs of the Application be in the cause.
2. The grounds on the face of the application were that;
1) by an order given herein on 04 December 2023 made pursuant to an application by the 1st and 2nd contemnor herein, this honourable court inadvertently dismissed the application for contempt of court dated 26th July for non-attendance by the applicant.
2) The said application dated 26th July 2023 was dismissed when the matter had come up in court for a mention for directions and during which time the Applicant was experiencing connectivity issues as the link provided at www.kenyalaw.org was not working and counsel for the Applicant was therefore unable to connect into and address to connect into and address the court online on the said Application.
3) The failure by counsel for the applicant to attend court on 4th December 2023 were therefore inadvertent and beyond the Applicants control, and therefore the applicant was denied an opportunity to show cause why the Application dated 26th July 2023 should not be dismissed for non-attendance.
4) It is also trite law that the matter cannot be dismissed either for non-attendance or at all during a mention for a matter, and a hearing notice, and/or a notice to show cause to be issued to a party before a matter is dismissed by the court, which did not happen in the circumstances of this case
5) As a result, the Applicant was denied the opportunity to show cause why this Application dated 26th July 2023 should be dismissed.
6) The Application dated 26th July 2023 raises various triable issues and seeks to defend the authority and dignity of this honourable court and the respect of its orders, and the Applicant is keen on prosecuting the said Application.
7) The Applicant has at all times been interested in prosecuting the Application dated 26th July 2023 and the failure by the Applicant to attend court on 4th December 2023 and the failure was an honest mistake of his counsel that should not be visited on an innocent litigant has been explained and the Applicant seeks this honourable court’s indulgence for the same to be deemed excusable.
8) The applicant got to know that the application dated 26th July 2023 was dismissed for non-attendance during the mention of this matter on 20th May 2024 hence this Application has been brought without delay.
9) Unless the orders sought herein are granted, the Applicant’s right to a fair hearing and to have its grievance determined by application of law under article 50 of the Constitution will be infringed.
10) The 1st and 2nd Contemnor have not purged the contempt set out in the application dated 26th July 2023 herein, and the same remains a continuing and clear affront to the dignity and authority of this honourable court. It is therefore important that directions for reinstatement of the Application dated 26th July 2023 are given expeditiously.
11) The respondent will not suffer any prejudice if this Application is allowed, and it is therefore in the interest of justice that the orders sought be granted.
Analysis and Determination
3. The Applicant depones that he has at all times been interested in prosecuting the Application dated 26th July 2023 and failure to attend on 4th December 2023 was an honest mistake of his counsel and that he got to know that the Application was dismissed for non-attendance during the mention of this matter hence the Application has been brought without delay.
4. On the other hand, the 1st & 2nd Respondents vide a replying affidavit avers that on 7th September 2023 when the matter came up in court and they were given 5th September 2023 where the court did not sit and the matter was moved to 7th September, 2023 where the 1st and 2nd contemnor were given 7 days to file their response in regard to the Application dated 26th July 2023 and the matter was coming up for mention on 5th October 2023 to confirm compliance and take directions on hearing of the Application. However on that day they court stated that the proceedings were incomplete as some documents could not be traced in the court file and directions were that the matter to be mentioned on 9th October 2023 where the Applicant applied to withdraw proceedings against the 3rd, 5th, and 6th contemnors only and further applied to be granted time to file a further affidavit and submission and were given 14 days in correspondence the 1st 2nd and 4th Contemnors were granted leave to file their submissions upon service and it was directed that mention to confirm compliance to take a ruling date on 4th December 2023 where both counsel for the Applicant and the Applicant were not in court.
5. I have carefully re-considered the application, the supporting and replying affidavits and the able submissions by both counsel herein.
6. Order 12 Rule & 7 of the civil procedure rules provides that, 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’’.
7. It is thus clear that the court has discretion to set aside dismissal orders on such terms that it may deem just. In the case of Shah vs Mbogo (1979) EA 116, it was held “This discretion is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist a person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice.”
8. The main reason counsel gave for not attending court was that he had a network challenge on the material day he experienced connectivity issues as the link provided at www.kenyalaw.org was not working and counsel for the Applicant was therefore unable to connect into and address to connect into and address the court online on the said Application was dismissed for non -attendance. In dismissing the Application, it was considered that the age of the matter, the conduct of the appellant in delaying the matter, and the fact that the application was filed about 5 months down the line after the dismissal. He found that no sufficient cause had been established to warrant reinstatement of the suit as the other matters for that day proceeded seamlessly. I will rely on the case of Shah vs Mbogo (Supra) and Wachira Karani vs Bildad Wachira (2016) EKLR where the supreme court cited the Supreme Court of India in the case of Parimal vs Veena, where it was held that:-
“Sufficient cause" is an expression which has been used in a large number of statutes. The meaning of the word "sufficient" is "adequate" or "enough", in as much as may be necessary to answer the purpose intended. Therefore, the word "sufficient" embraces no more than that which provides a platitude which, when the act is done, suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the viewpoint of a reasonable standard of a curious man. In this context, "sufficient cause" means that the party had not acted in a negligent manner or there was want of bona fide on its part in view of the facts and circumstances of a case, or the party cannot be alleged to have been "not acting diligently" or "remaining inactive." However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously."
9. The reason given for non -attendance of the applicant’s counsel in court was that Counsel for the applicant had a challenge logging in to the court as the login details given on the Kenya law report portal were not working . This court takes Judicial notice that as s at 4.12.23 the courts still had some teething problems with the Links to virtual hearings and stability of the system and internet . I will give the applicant a benefit of doubt . I find that sufficient cause has been given by the applicant for not attending court on 4.12.23.
10. On whether the delay in filing the application as inordinate The Application was dismissed on 4.12.23 and the instant application was filed 5 months and 17 days after the said orders in question. In the case of Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] KECA 701 (KLR),it was held that ‘’The law does not set out any minimum or maximum period of delay. All it states is that any delay should be satisfactorily explained. A plausible and satisfactory explanation for delay is the key that unlocks the court’s flow of discretionary favour. There has to be valid and clear reasons, upon which discretion can be favourably exercisable. ‘’ I find the delay in filing the application was not unreasonable .
11. The application dated 21.5.24 is merited, I allow it and reinstate the application dated 26.7.23 in the interest of justice . with Costs to the respondents. Mention on 18.11.25 for directions on the application 26.7.23.
'