1. Vide a Notice of Motion dated 26.4.2023 the Applicant herein moved this court for the following orders:
1. Spent.
2. That the honourable court be pleased to set aside its dismissal order dated 20.1.2023 and re admit the appeal herein for inter partes hearing and determination.
3. That the costs of this application be provided for.
2. The application is supported by the affidavit of Harriet N. Khisa advocate sworn on 26th April 2023 and Counsel premises the dismissal of the appeal on failure by this court to notify Counsel for the Appellant of hearing date of the 20th January, 2003 during the RRI session. In a further affidavit sworn on 9th May 2023 the Applicant’s Counsel deposes that the email addressed used to serve the notice had crushed.
3. This application is resisted by the Respondent by way of replying affidavit sworn on 18th May, 2023 by Lorna Odhong’ advocate who deposes that it behooves both the Applicant and his advocate to be vigilant and follow up on the appeal. Further that no plausible reasons have been advanced to justify a reinstatement of the appeal.
Analysis and determination:
4. The application was canvassed by way of written submissions. Both parties duly complied and the rival submissions have been duly considered.
5. The Applicant invokes the provisions of Order 12 Rule 7 of the Civil Procedure Rules 2010 which provides thus:
“a) Where judgment has been entered or suit has been dismissed the court on application may set aside or vary the judgment or order upon such terms as may be just.”
6. The Applicant’s Counsel posits and maintains that it was ignorant of the hearing date of 20th January 2023 as the law firm’s email address had crushed and it now has a new email address. I have perused the memorandum of appeal dated 20th March 2022 and I do note that the email address disclosed thereon is infor@bruceodenyadvocates.co.ke which was used by this court on 31.12.2022 at 9.24 am to notify parties on the rescheduling of the hearing date of the appeal to 20.1.2023 during the RRI session wherefore this court cannot be faulted for failure to issue notice to parties.
7. The 1st Respondent has correctly posited that this court is guided by the oxygen principle as enshrined in Sections 1A and 1B of the Civil Procedure Act which calls for just, expeditious, proportionate, affordable and timely disposal of court proceedings. I have analysed the circumstances of obtaining herein and I am inclined to allow the application solely for purposes of furthering the interest of justice and to ensure that the Applicant is not shut from the seat of justice due to mistakes of his Counsel. While I do appreciate the duty of the Applicant to follow up on his own case as the principal who instructed the advocates as his agent, I am persuaded that the Respondent can be attorned by an award of costs.
8. On the balance I do hereby set aside the orders made herein on 20.1.2023 and I thus reinstate this appeal for hearing and determination. Given that the Applicant has already filed his submissions on the main appeal, I direct the Respondents to file their submissions within 14 days from the date hereof.
9. The Applicant is hereby condemned to pay costs of this application to the 1st Respondent which costs are assessed at Kshs.15,000. The Applicant shall also pay additional court fees of Kshs.2,000 given that in light of this reinstatement the Appellant wasted this court’s judicial time on 20.1.2023. The costs be paid before the next mention date.
10. Mention on 23.7.2024 to confirm compliance.