1. Before this court is an application dated 12th March 2025 brought under Article 159(2)(d), Section 1A, 1B and 3A of the Civil Procedure Act, Order 12 Rule 6(1) and Order 51 Rule 1 of the Civil Procedure Rules seeking the following orders;
1. Spent
2. That the orders issued on 18th February, 2025 be set aside and the plaintiff/applicant’s suit be reinstated for formal proof hearing.
3. That costs of this application be provided for.
2. The application is premised on the grounds on its face and supported by the affidavit of Hillary K. Songoyo an advocate of the High Court sworn on 12th March, 2025. He deposes that this matter was scheduled for formal proof hearing on 18th February, 2025; that he had all the intention and zeal to proceed with the matter as the plaintiff had complied with Order 11 of the Civil Procedure Rules and all previous court orders; that he experienced internet connectivity challenges on the material date and was only able to gain access to the virtual platform at 9:54 a.m. by which time his matter had been called out and dismissed for non-attendance. It is his contention that non-attendance of court was not deliberate but was caused by internet connectivity challenges which frustrated his efforts to log-in on time. He urges the court to allow his application as his client is elderly who should be spared from suffering an injustice caused by technological mishaps.
3. The application is unopposed.
4. Order 12 Rule 7 of the Civil Procedure Rules provides that where Judgment has been entered or the suit has been dismissed, the court on application may set aside or vary the Judgment or order on such terms as may be just.
5. The case of John Nahashon Mwangi V Kenya Finance Bank Limited (in liquidation) 2015 eKLR, sets out the principles governing reinstatement of suits. In that case the court stated;
“The fundamental principles of justice are enshrined in the entire Constitution and specifically in Article 159 of the Constitution. Article 50 coupled with article 159 of the Constitution on right to be heard and the constitutional desire to serve substantive justice to all the parties, respectively, constitutes the defined principles which should guide the court in making a decision on such matter of reinstatement of a suit which has been dismissed by the court. These principles were enunciated in a masterly fashion by courts in a legion of decisions which I need not multiply except to state that; courts should sparingly dismiss suits for want of prosecution for dismissal is a draconian act which drives away the plaintiff in an arbitrary manner from the seat of judgment. Such act are comparable only to the proverbial ‘’Sword of the Damocles’’ which should only draw blood where it is absolutely necessary. The same test will apply in an application to reinstate a suit and a court of law should consider whether there are reasonable grounds to reinstate such suit-of course after considering the prejudice that the defendant would suffer if the suit was reinstated against the prejudice the Plaintiff will suffer if the suit is not reinstated.”
6. I have considered the explanation given by the applicant for non-attendance, looked at the fact that this matter was coming up for the first time for formal proof, considered that the application for reinstatement was filed promptly and that the litigant is elderly.
7. In applying the above conditions and the legal principles to the instant application and considering that dismissal of a suit is a draconian order which drives away the litigant from the seat of justice, I am of the view that justice will be served in reinstating the suit but with strict conditions.
8. Accordingly, I set aside the dismissal order, reinstate the suit and set it down for formal proof hearing. However, if the plaintiff does not prosecute the matter on the hearing date given, the suit shall stand dismissed.
9. No order is made on costs as the application was not defended.
10. Orders accordingly.
Dated, signed and delivered at Kabarnet this 29th day of May, 2025.
Ruling delivered virtually in the presence of;-
Mr. Songoyo for the applicant/ plaintiff
N/A for the respondent
Court Assistant: Christine