(Being an application by the Claimant/Applicant, by Notice of Motion dated 2nd April 2026, brought under Order 17 Rule 2(1) of the Civil Procedure Rules, 2010, and Sections 1, 1A and 3A of the Civil Procedure Act, seeking to set aside and/or reinstate this suit, which was dismissed on 24th February 2026 for want of prosecution)
A. INTRODUCTION
1. This Ruling determines the Notice of Motion dated 2nd April 2026, filed by the Claimant/Applicant, Juma Mzee Bwana ("the Applicant"), seeking to reinstate ELRC Cause No. E106 of 2025, which suit was dismissed by this Court on 24th February 2026 for want of prosecution. The application is supported by the Supporting Affidavit of Salim Suleman Mosheh, Advocate on record for the Applicant, sworn on 14th April 2026, and is opposed by the Respondent, Babito General Contractors & Suppliers Ltd, through the Replying Affidavit of Saumu Hashim Kalume, its Human Resource Manager.
2. The application raises, at its core, a single but consequential question of procedure: whether the dismissal entered on 24th February 2026 required, as a matter of law, the prior issuance of a notice to show cause under Order 17 Rule 2(1) of the Civil Procedure Rules, 2010, before it could properly be made — and, flowing from that, whether the Applicant has otherwise placed sufficient and credible material before the Court to warrant the exercise of its discretion in his favour to set aside that dismissal.
B. PROCEDURAL BACKGROUND
3. The Claimant instituted this suit against the Respondent by way of a Statement of Claim filed on 23rd October 2025.
4. The matter was first placed before Mbaru, J. on 22nd January 2026, in the presence of Counsel for both parties, namely, Mr. Mwanzia for the Respondent and Mr. Salim for the Claimant. Having confirmed that the parties had complied with all the requisite pre-trial procedural steps, the Court, by consent of both Counsel, fixed the matter for hearing on 24th February 2026. It bears emphasis, for reasons that will become apparent shortly, that the hearing date of 24th February 2026 was not a date arrived at unilaterally by the Court or the Registry; it was a date taken with the concurrence, and in the presence, of Mr. Salim, Counsel then on record for the Claimant.
5. On 24th February 2026, when the matter came up for hearing as scheduled, neither the Claimant nor Mr. Salim, his Counsel, was present in court. Consequently, the suit was dismissed for want of prosecution.
6. Aggrieved by the dismissal, the Applicant filed the present Notice of Motion dated 2nd April 2026, together with the Supporting Affidavit of Salim Suleman Mosheh sworn on 14th April 2026, and thereafter filed Written Submissions dated 7th April 2026 in support of the application.
C. THE APPLICANT'S CASE
7. The Notice of Motion is expressed to be brought "under Order 17 Rule 2(1) of the Civil Procedure Rules 2010, Sections 1 and 3A of the Civil Procedure Act and all other enabling Provision of Law," and seeks orders that the Court reinstate ELRC Cause No. E106 of 2025, dismissed on 24th February 2026 for want of prosecution, together with costs of the application.
8. The application is grounded on six stated grounds, which are substantially reproduced and elaborated upon in the Supporting Affidavit of Mr. Salim Suleman Mosheh. Summarised, the Applicant's grounds are that: (a) the suit was dismissed on 24th February 2026 for want of prosecution; (b) neither the Claimant nor his Advocate was served with a notice to show cause as required, in the Applicant's view, by Order 17 Rule 2(1) of the Civil Procedure Rules, and that the omission offends the Claimant's right to a fair trial; (c) the application for reinstatement has been brought promptly and without unreasonable delay; (d) the default in attendance was occasioned by excusable factors relating to bereavement, which rendered Counsel unable "to enter appearance"; (e) the application is made in the interest of fairness; and (f) it is in the best interests of the case that the orders sought be granted.
9. In his Supporting Affidavit, Mr. Mosheh deposes, at paragraphs 9 and 10, that "the failure to prosecute this matter was not intentional as we had bereavement and family issues to sort out afterwards," and that "it would have only been prudent and fair for a notice to show cause be served upon the Plaintiff advocate to enable us defend the said notice, because all along we were trying to trace the file." No further particulars are given of the bereavement — neither the identity of the deceased, the relationship to Counsel or the Applicant, the date of death or burial, nor any medical or burial documentation — nor is any explanation offered for the reference to "trying to trace the file," which sits uneasily beside, and is not obviously reconciled with, the claim of bereavement.
10. The Applicant's Written Submissions dated 7th April 2026 amplify the above, relying principally on Order 17 Rule 2(1) of the Civil Procedure Rules, Sections 1, 1A and 3A of the Civil Procedure Act, Articles 50 and 159(2) of the Constitution, and the decisions in Ivita v Kyumbu [1984] KLR 441 and Shah v Mbogo & Another (1967) EA 116, for the proposition that dismissal for want of prosecution is a draconian measure to be invoked sparingly, that the discretion to reinstate ought to be exercised judiciously and in the interest of substantive justice, and that no prejudice would be occasioned to the Respondent by reinstatement, given the regency of the suit.
D. THE RESPONDENT'S CASE
11. The Respondent opposes the application through the Replying Affidavit of Saumu Hashim Kalume, its Human Resource Manager, sworn on 6th May 2026.
12. The Respondent's case, in summary, is that: (a) the application is grounded on misguided and incorrect facts and ought to be dismissed; (b) the Claimant and/or his Advocate could not have been, and were not required to be, served with any notice to show cause, since the hearing date of 24th February 2026 "was taken by consent on 22nd January, 2026 when Salim was present in court"; (c) the question of delay in fixing the matter for hearing, upon which the Applicant places emphasis, accordingly does not arise, being itself a misconceived premise; and (d) the explanation proffered for non-attendance — that the failure was occasioned by bereavement which prevented Counsel from "entering appearance" — is, in the Respondent's words, "totally mis-guided," since "the Claimant cannot enter appearance in a suit which he has instituted," entering appearance being a step taken by a defendant upon service of summons, not by a plaintiff in a suit of his own making.
13. The Respondent accordingly urges the Court to dismiss the application in its entirety, with costs.
E. ISSUES FOR DETERMINATION
14. Arising from the pleadings, affidavits and submissions on record, the following issues fall for determination: (a) what are the established principles guiding this Court in an application to set aside an order dismissing a suit for non-attendance of a party, and how do they apply to the instant application; (b) whether the dismissal of 24th February 2026 was one that, in law, required the prior issuance of a notice to show cause under Order 17 Rule 2(1) of the Civil Procedure Rules, or whether it fell instead under the distinct regime governing non-attendance at a hearing that has already been fixed; (c) whether, that question resolved, the application — anchored as it substantially is on the alleged absence of a notice to show cause — can succeed; (d) whether the explanation proffered for the non-attendance on 24th February 2026 is, independently, sufficient to warrant the exercise of the Court's discretion in the Applicant's favour; and (e) what orders should issue.
F. ANALYSIS AND DETERMINATION
(i) The Established Principles for Setting Aside a Dismissal Order for Non-Attendance
15. It is well settled that a court possesses a wide and largely unfettered discretion when considering an application to set aside a judgment or order made in the absence of a party, whether that order takes the form of an ex parte judgment or, as here, a dismissal of the suit for non-attendance. The purpose of that discretion, and the touchstone against which it is exercised, was articulated by Harris, J. in Shah v Mbogo & Another (1967) EA 116, in terms that have since been consistently applied by the Court of Appeal, including in, Patel v East Africa Cargo Handling Services Ltd [1974] EA 75, and, more recently, in CMC Holdings Limited v Nzioki [2004] 1 KLR 173: that the discretion "is intended so to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist the person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice."
16. The Court of Appeal, in the frequently cited passage from Pithon Waweru Maina v Thuka Musgiria (1982-88) 1 KAR 171, restated this principle together with two further, complementary considerations: first, per Duffus, P. in Patel v EA Cargo Handling Services Ltd, that "there are no limits or restrictions on the judge's discretion except that if he does vary the judgment he does so on such terms as may be just," the court's main concern being to do justice to the parties.
17. It is equally well established, as the Court of Appeal held in Baraka Apparel EPZ (K) Ltd v Rose Mbula Ojwang (Civil Appeal No. 280 of 2005), applying Lord Atkin's dictum in Evans v Bartlam [1937] 2 All ER 646 at 650, that a party ought not, as a general rule, to be condemned unheard, and that where there is a defence, or as the case may be a claim, disclosing a bona fide triable issue, that issue ought ordinarily to be allowed to proceed to hearing and determination on its merits. The corollary, however, as the Court of Appeal was equally at pains to stress in the same authority, is that this principle does not operate in a vacuum: the applicant must still furnish the Court with a full, coherent and candid account of the default, for it is against that account, and not against the bare existence of a claim, that the discretion falls to be exercised.
18. Drawing these threads together, the applicable principles may be stated thus: an applicant seeking to set aside a dismissal for non-attendance must demonstrate (a) a genuine, credible and sufficiently particularised explanation for the default, going to accident, inadvertence, or excusable mistake, rather than to deliberate default or the obstruction of proceedings; (b) that the application has been brought without unreasonable delay upon the applicant becoming aware of the dismissal; (c) that there exists a live and substantial claim which, on the merits, deserves to be heard; and (d) that the interests of justice, weighed as between both parties and not the applicant alone, favour reinstatement over finality. It is against this composite standard, and not against isolated fragments of it, that the instant application must be assessed.
(ii) Distinguishing Dismissal for Non-Attendance at a Fixed Hearing from Dismissal for Want of Prosecution
19. The second, and in the Court's view decisive, issue concerns the legal characterisation of the dismissal of 24th February 2026, and, in particular, whether it was a dismissal of the kind contemplated by Order 17 Rule 2(1) of the Civil Procedure Rules, 2010 — as the Applicant's entire application assumes — or a dismissal of an altogether different character, governed by Order 12 of the same Rules.
20. Order 12 Rule 1 of the Civil Procedure Rules, 2010 provides that "if on the day fixed for hearing, after the suit has been called on for hearing outside the court, neither party attends, the court may dismiss the suit." Rules 2 and 3 of the same Order make further provision for the converse situations where one party attends, and the other does not, permitting the court, depending on which party defaults, either to proceed with the hearing or to dismiss the suit, as the case may be, subject to any application to set aside that may thereafter be brought. What is material for present purposes is that Order 12 governs the consequences of non-attendance on a day that has already been fixed for the hearing of the suit — a day of which the parties, having participated in its fixing or otherwise been made aware of it, are already on notice. Order 12 contains no requirement, express or implied, that the court first issue a further notice to show cause before it may dismiss a suit for non-attendance on the day so fixed; to impose such a requirement would defeat the very purpose of fixing hearing dates, for parties could otherwise never be taken to be on notice of a date they themselves had agreed to or had been informed of in open court.
21. Order 17 Rule 2, by contrast, addresses an entirely different mischief. It provides, in its material part, that "in any suit in which no application has been made or step taken by either party for one year, the court may give notice in writing to the parties to show cause why the suit should not be dismissed, and if cause is not shown to its satisfaction, may dismiss the suit"; that "if cause is shown to the satisfaction of the court it may make such orders as it thinks fit to obtain expeditious hearing of the suit"; that "any party to the suit may apply for its dismissal as provided in sub-rule (1)"; and that "the court may dismiss the suit for non-compliance with any direction given under this Order." The mischief which Order 17 Rule 2 addresses is that of a dormant suit — one in which, for want of any step taken by either party over a period of a year or more, there is no hearing date, fixed or otherwise, of which the parties can be said to be on notice. It is precisely because the parties in such a case cannot be taken to know that their suit is at risk of dismissal that the Rule builds in the procedural safeguard of a written notice to show cause before dismissal may follow. That safeguard is the creature of the peculiar mischief that Order 17 Rule 2 is designed to remedy; it has no place, and no purpose, where a hearing date already exists and has already been communicated to, or agreed by, the parties.
22. The distinction is not a mere technicality; it reflects two entirely different factual premises. A dismissal under Order 12 presupposes an active suit, with a hearing date already fixed and known to the parties, which then fails to proceed because of the default of a party on the appointed day. A dismissal under Order 17 Rule 2 presupposes an inactive, dormant suit, in which no date exists at all, and in which the court must first alert the parties, by formal written notice, that it proposes to dismiss for that inactivity, before it may lawfully do so. The two provisions are addressed to different states of the record and, correspondingly, carry different procedural safeguards; the one is not to be read as if it were the other, nor may a litigant, by simply invoking the label "want of prosecution," import into an Order 12 dismissal a notice requirement that the Rules reserve exclusively for Order 17 Rule 2.
(iii) Application of the Distinction to the Instant Application
23. Applying the foregoing to the facts of this case, the Court finds, without difficulty, that the dismissal of 24th February 2026 was a dismissal falling squarely within Order 12 Rule 1, and not within Order 17 Rule 2. It is common ground, indeed it is deposed to by the Respondent and not seriously controverted by the Applicant on the facts (as opposed to on the law), that the hearing date of 24th February 2026 was fixed by consent of Counsel for both parties, including Mr. Salim, then and still Counsel for the Applicant, on 22nd January 2026, in circumstances where the pre-trial procedural steps had already been confirmed as complete. This was, in other words, a suit that was very much alive and on track for hearing, with a specific date fixed in the presence of, and by the concurrence of, the Applicant's own Advocate. It was not a suit that had lain dormant for a year or more for want of any step taken by either party; to the contrary, a step — the fixing of a hearing date by consent — had been taken as recently as approximately one month before the date in question.
24. It follows that when neither the Applicant nor his Counsel appeared on 24th February 2026, the resulting dismissal was, in substance and in law, a dismissal for non-attendance at a hearing already fixed by consent, governed by Order 12 Rule 1 of the Civil Procedure Rules. No notice to show cause under Order 17 Rule 2(1) was required before that dismissal could properly be entered, because Order 17 Rule 2(1) was never engaged on these facts in the first place. The Applicant's repeated invocation, both in the Notice of Motion and in the Supporting Affidavit, of a supposed entitlement to a notice to show cause "as provided by Order 17 Rule 2(1)," proceeds from a misapprehension of which of the two regimes described above applies to a dismissal of this kind. Tellingly, the Applicant's own Notice of Motion is itself brought "under Order 17 Rule 2(1)," notwithstanding that the very premise of the application — that the dismissal now sought to be set aside was a want-of-prosecution dismissal attracting the notice-to-show-cause safeguard — is, on the facts before the Court, untenable. The Applicant has, in short, conflated a dismissal for non-attendance at a hearing fixed by consent with a dismissal for want of prosecution of a dormant suit; the two are not the same, and the procedural protections attaching to the latter cannot be transplanted onto the former.
25. Given that the application is, on its own terms, anchored substantially — indeed, on a fair reading of the six grounds set out in the Notice of Motion, the Applicant's primary and most emphatically pressed ground is grounds 2 and 8 of the Supporting Affidavit, the alleged absence of a notice to show cause — on this single, misconceived legal premise, the application cannot succeed on that basis. A complaint that a procedural safeguard was not extended to a litigant, where that safeguard was never applicable to the situation at hand, discloses no irregularity capable of vitiating the dismissal, let alone one sufficient to warrant this Court's discretionary intervention.
(iv) Whether the Explanation for Non-Attendance is Otherwise Sufficient
26. Even setting aside entirely the misconceived reliance on Order 17 Rule 2(1), and considering the application on the alternative, residual footing that the Court ought nonetheless to exercise its discretion to set aside an Order 12 dismissal where a sufficient explanation for non-attendance is shown, the Court is not satisfied that the explanation proffered meets the threshold set out in Shah v Mbogo and Ivita v Kyumbu.
27. The explanation, as deposed in the Supporting Affidavit, is that the "failure to enter appearance for hearing on 24th February 2026 was occasioned by factors that are excusable due to bereavement as the learned Counsel was not able to enter appearance," and that "the failure to prosecute this matter was not intentional as we had bereavement and family issues to sort out afterwards." No further particulars whatsoever are given: there is no indication of who passed away, of the deceased's relationship to Counsel or to the Applicant, of the date on which the bereavement occurred or the burial took place, or of how or why a bereavement — whosesoever it was — rendered it impossible for either Mr. Salim or the Applicant himself to attend court, or even to notify the Court or opposing Counsel of the difficulty, on or before 24th February 2026. An excuse of this generality, unaccompanied by any particulars capable of being tested or verified, falls well short of the "genuine" and "excusable" mistake contemplated in Shah v Mbogo; it is, at best, a bare assertion.
28. Compounding this difficulty, the phrase used in the Supporting Affidavit — that Counsel "was not able to enter appearance" — is, on examination, both legally and factually confused, as the Respondent correctly points out in its Replying Affidavit. "Entering appearance" is a term of art in civil procedure describing the formal step by which a defendant, upon service of summons, signifies its intention to participate in proceedings; it has no application to a claimant, still less to a claimant's advocate attending a hearing in a suit which the claimant himself instituted. The use of this language in an affidavit sworn by the Applicant's own Advocate, to explain non-attendance at a hearing of the Applicant's own case, betrays a lack of precision and clarity that this Court cannot overlook. It is compounded further by the affidavit's additional, and not obviously reconcilable, assertion that the default was also attributable to Counsel having been "trying to trace the file" — a difficulty that speaks not of bereavement but of file-management within Counsel's own office, and which sits uneasily alongside, rather than reinforcing, the bereavement narrative.
29. Taking the explanation as a whole, the Court finds it to be, in the words used by the Applicant's own instructing party in framing the issue for this Court, sketchy, ambiguous and difficult to understand. It does not disclose, with the clarity and candour that this Court is entitled to expect of a party seeking the exercise of a discretionary remedy, what precisely occurred, when it occurred, or why it prevented attendance at the hearing. An explanation of this character does not assist, and indeed undermines, the Applicant's case for reinstatement, whether considered independently or as a further, cumulative reason — over and above the misconceived reliance on Order 17 Rule 2(1) — for declining to exercise the Court's discretion in the Applicant's favour.
30. The Court has considered, for completeness, the Applicant's submission that no prejudice would be occasioned to the Respondent by reinstatement, given the relative recency of the suit. Whatever force that submission might have had were the application otherwise well-founded, the absence of prejudice to the opposite party cannot, on its own, cure a legally misconceived application or supply the want of a credible explanation for default. Prejudice, or the absence of it, is but one of several factors weighed in the exercise of this discretion, and cannot substitute for the threshold requirements discussed above.
G. DISPOSITION
31. For the reasons set out above, the Court finds that: (a) the dismissal of this suit on 24th February 2026 was a dismissal for non-attendance at a hearing fixed by consent of the parties' respective Counsel, falling under Order 12 Rule 1 of the Civil Procedure Rules, 2010, and not a dismissal for want of prosecution requiring a prior notice to show cause under Order 17 Rule 2(1) of the said Rules; (b) the application, being anchored substantially on the erroneous premise that such a notice was required and was not given, cannot succeed; and (c) the explanation tendered for the non-attendance of the Applicant and his Counsel on 24th February 2026 is, in any event, sketchy, ambiguous and insufficiently particularised to warrant the exercise of this Court's discretion in the Applicant's favour.
32. Accordingly, the Notice of Motion dated 2nd April 2026 is hereby dismissed. The dismissal order of 24th February 2026 shall stand.
33. The Respondent having successfully opposed the application, and costs following the event as the ordinary rule, the Applicant shall bear the costs of this application.
34. It is so ordered.
Dated, signed and delivered this 27th July 2026
A. INTRODUCTION
1. This Ruling determines the Notice of Motion dated 2nd April 2026, filed by the Claimant/Applicant, Juma Mzee Bwana ("the Applicant"), seeking to reinstate ELRC Cause No. E106 of 2025, which suit was dismissed by this Court on 24th February 2026 for want of prosecution. The application is supported by the Supporting Affidavit of Salim Suleman Mosheh, Advocate on record for the Applicant, sworn on 14th April 2026, and is opposed by the Respondent, Babito General Contractors & Suppliers Ltd, through the Replying Affidavit of Saumu Hashim Kalume, its Human Resource Manager.
2. The application raises, at its core, a single but consequential question of procedure: whether the dismissal entered on 24th February 2026 required, as a matter of law, the prior issuance of a notice to show cause under Order 17 Rule 2(1) of the Civil Procedure Rules, 2010, before it could properly be made — and, flowing from that, whether the Applicant has otherwise placed sufficient and credible material before the Court to warrant the exercise of its discretion in his favour to set aside that dismissal.
B. PROCEDURAL BACKGROUND
3. The Claimant instituted this suit against the Respondent by way of a Statement of Claim filed on 23rd October 2025.
4. The matter was first placed before Mbaru, J. on 22nd January 2026, in the presence of Counsel for both parties, namely, Mr. Mwanzia for the Respondent and Mr. Salim for the Claimant. Having confirmed that the parties had complied with all the requisite pre-trial procedural steps, the Court, by consent of both Counsel, fixed the matter for hearing on 24th February 2026. It bears emphasis, for reasons that will become apparent shortly, that the hearing date of 24th February 2026 was not a date arrived at unilaterally by the Court or the Registry; it was a date taken with the concurrence, and in the presence, of Mr. Salim, Counsel then on record for the Claimant.
5. On 24th February 2026, when the matter came up for hearing as scheduled, neither the Claimant nor Mr. Salim, his Counsel, was present in court. Consequently, the suit was dismissed for want of prosecution.
6. Aggrieved by the dismissal, the Applicant filed the present Notice of Motion dated 2nd April 2026, together with the Supporting Affidavit of Salim Suleman Mosheh sworn on 14th April 2026, and thereafter filed Written Submissions dated 7th April 2026 in support of the application.
C. THE APPLICANT'S CASE
7. The Notice of Motion is expressed to be brought "under Order 17 Rule 2(1) of the Civil Procedure Rules 2010, Sections 1 and 3A of the Civil Procedure Act and all other enabling Provision of Law," and seeks orders that the Court reinstate ELRC Cause No. E106 of 2025, dismissed on 24th February 2026 for want of prosecution, together with costs of the application.
8. The application is grounded on six stated grounds, which are substantially reproduced and elaborated upon in the Supporting Affidavit of Mr. Salim Suleman Mosheh. Summarised, the Applicant's grounds are that: (a) the suit was dismissed on 24th February 2026 for want of prosecution; (b) neither the Claimant nor his Advocate was served with a notice to show cause as required, in the Applicant's view, by Order 17 Rule 2(1) of the Civil Procedure Rules, and that the omission offends the Claimant's right to a fair trial; (c) the application for reinstatement has been brought promptly and without unreasonable delay; (d) the default in attendance was occasioned by excusable factors relating to bereavement, which rendered Counsel unable "to enter appearance"; (e) the application is made in the interest of fairness; and (f) it is in the best interests of the case that the orders sought be granted.
9. In his Supporting Affidavit, Mr. Mosheh deposes, at paragraphs 9 and 10, that "the failure to prosecute this matter was not intentional as we had bereavement and family issues to sort out afterwards," and that "it would have only been prudent and fair for a notice to show cause be served upon the Plaintiff advocate to enable us defend the said notice, because all along we were trying to trace the file." No further particulars are given of the bereavement — neither the identity of the deceased, the relationship to Counsel or the Applicant, the date of death or burial, nor any medical or burial documentation — nor is any explanation offered for the reference to "trying to trace the file," which sits uneasily beside, and is not obviously reconciled with, the claim of bereavement.
10. The Applicant's Written Submissions dated 7th April 2026 amplify the above, relying principally on Order 17 Rule 2(1) of the Civil Procedure Rules, Sections 1, 1A and 3A of the Civil Procedure Act, Articles 50 and 159(2) of the Constitution, and the decisions in Ivita v Kyumbu [1984] KLR 441 and Shah v Mbogo & Another (1967) EA 116, for the proposition that dismissal for want of prosecution is a draconian measure to be invoked sparingly, that the discretion to reinstate ought to be exercised judiciously and in the interest of substantive justice, and that no prejudice would be occasioned to the Respondent by reinstatement, given the regency of the suit.
D. THE RESPONDENT'S CASE
11. The Respondent opposes the application through the Replying Affidavit of Saumu Hashim Kalume, its Human Resource Manager, sworn on 6th May 2026.
12. The Respondent's case, in summary, is that: (a) the application is grounded on misguided and incorrect facts and ought to be dismissed; (b) the Claimant and/or his Advocate could not have been, and were not required to be, served with any notice to show cause, since the hearing date of 24th February 2026 "was taken by consent on 22nd January, 2026 when Salim was present in court"; (c) the question of delay in fixing the matter for hearing, upon which the Applicant places emphasis, accordingly does not arise, being itself a misconceived premise; and (d) the explanation proffered for non-attendance — that the failure was occasioned by bereavement which prevented Counsel from "entering appearance" — is, in the Respondent's words, "totally mis-guided," since "the Claimant cannot enter appearance in a suit which he has instituted," entering appearance being a step taken by a defendant upon service of summons, not by a plaintiff in a suit of his own making.
13. The Respondent accordingly urges the Court to dismiss the application in its entirety, with costs.
E. ISSUES FOR DETERMINATION
14. Arising from the pleadings, affidavits and submissions on record, the following issues fall for determination: (a) what are the established principles guiding this Court in an application to set aside an order dismissing a suit for non-attendance of a party, and how do they apply to the instant application; (b) whether the dismissal of 24th February 2026 was one that, in law, required the prior issuance of a notice to show cause under Order 17 Rule 2(1) of the Civil Procedure Rules, or whether it fell instead under the distinct regime governing non-attendance at a hearing that has already been fixed; (c) whether, that question resolved, the application — anchored as it substantially is on the alleged absence of a notice to show cause — can succeed; (d) whether the explanation proffered for the non-attendance on 24th February 2026 is, independently, sufficient to warrant the exercise of the Court's discretion in the Applicant's favour; and (e) what orders should issue.
F. ANALYSIS AND DETERMINATION
(i) The Established Principles for Setting Aside a Dismissal Order for Non-Attendance
15. It is well settled that a court possesses a wide and largely unfettered discretion when considering an application to set aside a judgment or order made in the absence of a party, whether that order takes the form of an ex parte judgment or, as here, a dismissal of the suit for non-attendance. The purpose of that discretion, and the touchstone against which it is exercised, was articulated by Harris, J. in Shah v Mbogo & Another (1967) EA 116, in terms that have since been consistently applied by the Court of Appeal, including in, Patel v East Africa Cargo Handling Services Ltd [1974] EA 75, and, more recently, in CMC Holdings Limited v Nzioki [2004] 1 KLR 173: that the discretion "is intended so to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist the person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice."
16. The Court of Appeal, in the frequently cited passage from Pithon Waweru Maina v Thuka Musgiria (1982-88) 1 KAR 171, restated this principle together with two further, complementary considerations: first, per Duffus, P. in Patel v EA Cargo Handling Services Ltd, that "there are no limits or restrictions on the judge's discretion except that if he does vary the judgment he does so on such terms as may be just," the court's main concern being to do justice to the parties.
17. It is equally well established, as the Court of Appeal held in Baraka Apparel EPZ (K) Ltd v Rose Mbula Ojwang (Civil Appeal No. 280 of 2005), applying Lord Atkin's dictum in Evans v Bartlam [1937] 2 All ER 646 at 650, that a party ought not, as a general rule, to be condemned unheard, and that where there is a defence, or as the case may be a claim, disclosing a bona fide triable issue, that issue ought ordinarily to be allowed to proceed to hearing and determination on its merits. The corollary, however, as the Court of Appeal was equally at pains to stress in the same authority, is that this principle does not operate in a vacuum: the applicant must still furnish the Court with a full, coherent and candid account of the default, for it is against that account, and not against the bare existence of a claim, that the discretion falls to be exercised.
18. Drawing these threads together, the applicable principles may be stated thus: an applicant seeking to set aside a dismissal for non-attendance must demonstrate (a) a genuine, credible and sufficiently particularised explanation for the default, going to accident, inadvertence, or excusable mistake, rather than to deliberate default or the obstruction of proceedings; (b) that the application has been brought without unreasonable delay upon the applicant becoming aware of the dismissal; (c) that there exists a live and substantial claim which, on the merits, deserves to be heard; and (d) that the interests of justice, weighed as between both parties and not the applicant alone, favour reinstatement over finality. It is against this composite standard, and not against isolated fragments of it, that the instant application must be assessed.
(ii) Distinguishing Dismissal for Non-Attendance at a Fixed Hearing from Dismissal for Want of Prosecution
19. The second, and in the Court's view decisive, issue concerns the legal characterisation of the dismissal of 24th February 2026, and, in particular, whether it was a dismissal of the kind contemplated by Order 17 Rule 2(1) of the Civil Procedure Rules, 2010 — as the Applicant's entire application assumes — or a dismissal of an altogether different character, governed by Order 12 of the same Rules.
20. Order 12 Rule 1 of the Civil Procedure Rules, 2010 provides that "if on the day fixed for hearing, after the suit has been called on for hearing outside the court, neither party attends, the court may dismiss the suit." Rules 2 and 3 of the same Order make further provision for the converse situations where one party attends, and the other does not, permitting the court, depending on which party defaults, either to proceed with the hearing or to dismiss the suit, as the case may be, subject to any application to set aside that may thereafter be brought. What is material for present purposes is that Order 12 governs the consequences of non-attendance on a day that has already been fixed for the hearing of the suit — a day of which the parties, having participated in its fixing or otherwise been made aware of it, are already on notice. Order 12 contains no requirement, express or implied, that the court first issue a further notice to show cause before it may dismiss a suit for non-attendance on the day so fixed; to impose such a requirement would defeat the very purpose of fixing hearing dates, for parties could otherwise never be taken to be on notice of a date they themselves had agreed to or had been informed of in open court.
21. Order 17 Rule 2, by contrast, addresses an entirely different mischief. It provides, in its material part, that "in any suit in which no application has been made or step taken by either party for one year, the court may give notice in writing to the parties to show cause why the suit should not be dismissed, and if cause is not shown to its satisfaction, may dismiss the suit"; that "if cause is shown to the satisfaction of the court it may make such orders as it thinks fit to obtain expeditious hearing of the suit"; that "any party to the suit may apply for its dismissal as provided in sub-rule (1)"; and that "the court may dismiss the suit for non-compliance with any direction given under this Order." The mischief which Order 17 Rule 2 addresses is that of a dormant suit — one in which, for want of any step taken by either party over a period of a year or more, there is no hearing date, fixed or otherwise, of which the parties can be said to be on notice. It is precisely because the parties in such a case cannot be taken to know that their suit is at risk of dismissal that the Rule builds in the procedural safeguard of a written notice to show cause before dismissal may follow. That safeguard is the creature of the peculiar mischief that Order 17 Rule 2 is designed to remedy; it has no place, and no purpose, where a hearing date already exists and has already been communicated to, or agreed by, the parties.
22. The distinction is not a mere technicality; it reflects two entirely different factual premises. A dismissal under Order 12 presupposes an active suit, with a hearing date already fixed and known to the parties, which then fails to proceed because of the default of a party on the appointed day. A dismissal under Order 17 Rule 2 presupposes an inactive, dormant suit, in which no date exists at all, and in which the court must first alert the parties, by formal written notice, that it proposes to dismiss for that inactivity, before it may lawfully do so. The two provisions are addressed to different states of the record and, correspondingly, carry different procedural safeguards; the one is not to be read as if it were the other, nor may a litigant, by simply invoking the label "want of prosecution," import into an Order 12 dismissal a notice requirement that the Rules reserve exclusively for Order 17 Rule 2.
(iii) Application of the Distinction to the Instant Application
23. Applying the foregoing to the facts of this case, the Court finds, without difficulty, that the dismissal of 24th February 2026 was a dismissal falling squarely within Order 12 Rule 1, and not within Order 17 Rule 2. It is common ground, indeed it is deposed to by the Respondent and not seriously controverted by the Applicant on the facts (as opposed to on the law), that the hearing date of 24th February 2026 was fixed by consent of Counsel for both parties, including Mr. Salim, then and still Counsel for the Applicant, on 22nd January 2026, in circumstances where the pre-trial procedural steps had already been confirmed as complete. This was, in other words, a suit that was very much alive and on track for hearing, with a specific date fixed in the presence of, and by the concurrence of, the Applicant's own Advocate. It was not a suit that had lain dormant for a year or more for want of any step taken by either party; to the contrary, a step — the fixing of a hearing date by consent — had been taken as recently as approximately one month before the date in question.
24. It follows that when neither the Applicant nor his Counsel appeared on 24th February 2026, the resulting dismissal was, in substance and in law, a dismissal for non-attendance at a hearing already fixed by consent, governed by Order 12 Rule 1 of the Civil Procedure Rules. No notice to show cause under Order 17 Rule 2(1) was required before that dismissal could properly be entered, because Order 17 Rule 2(1) was never engaged on these facts in the first place. The Applicant's repeated invocation, both in the Notice of Motion and in the Supporting Affidavit, of a supposed entitlement to a notice to show cause "as provided by Order 17 Rule 2(1)," proceeds from a misapprehension of which of the two regimes described above applies to a dismissal of this kind. Tellingly, the Applicant's own Notice of Motion is itself brought "under Order 17 Rule 2(1)," notwithstanding that the very premise of the application — that the dismissal now sought to be set aside was a want-of-prosecution dismissal attracting the notice-to-show-cause safeguard — is, on the facts before the Court, untenable. The Applicant has, in short, conflated a dismissal for non-attendance at a hearing fixed by consent with a dismissal for want of prosecution of a dormant suit; the two are not the same, and the procedural protections attaching to the latter cannot be transplanted onto the former.
25. Given that the application is, on its own terms, anchored substantially — indeed, on a fair reading of the six grounds set out in the Notice of Motion, the Applicant's primary and most emphatically pressed ground is grounds 2 and 8 of the Supporting Affidavit, the alleged absence of a notice to show cause — on this single, misconceived legal premise, the application cannot succeed on that basis. A complaint that a procedural safeguard was not extended to a litigant, where that safeguard was never applicable to the situation at hand, discloses no irregularity capable of vitiating the dismissal, let alone one sufficient to warrant this Court's discretionary intervention.
(iv) Whether the Explanation for Non-Attendance is Otherwise Sufficient
26. Even setting aside entirely the misconceived reliance on Order 17 Rule 2(1), and considering the application on the alternative, residual footing that the Court ought nonetheless to exercise its discretion to set aside an Order 12 dismissal where a sufficient explanation for non-attendance is shown, the Court is not satisfied that the explanation proffered meets the threshold set out in Shah v Mbogo and Ivita v Kyumbu.
27. The explanation, as deposed in the Supporting Affidavit, is that the "failure to enter appearance for hearing on 24th February 2026 was occasioned by factors that are excusable due to bereavement as the learned Counsel was not able to enter appearance," and that "the failure to prosecute this matter was not intentional as we had bereavement and family issues to sort out afterwards." No further particulars whatsoever are given: there is no indication of who passed away, of the deceased's relationship to Counsel or to the Applicant, of the date on which the bereavement occurred or the burial took place, or of how or why a bereavement — whosesoever it was — rendered it impossible for either Mr. Salim or the Applicant himself to attend court, or even to notify the Court or opposing Counsel of the difficulty, on or before 24th February 2026. An excuse of this generality, unaccompanied by any particulars capable of being tested or verified, falls well short of the "genuine" and "excusable" mistake contemplated in Shah v Mbogo; it is, at best, a bare assertion.
28. Compounding this difficulty, the phrase used in the Supporting Affidavit — that Counsel "was not able to enter appearance" — is, on examination, both legally and factually confused, as the Respondent correctly points out in its Replying Affidavit. "Entering appearance" is a term of art in civil procedure describing the formal step by which a defendant, upon service of summons, signifies its intention to participate in proceedings; it has no application to a claimant, still less to a claimant's advocate attending a hearing in a suit which the claimant himself instituted. The use of this language in an affidavit sworn by the Applicant's own Advocate, to explain non-attendance at a hearing of the Applicant's own case, betrays a lack of precision and clarity that this Court cannot overlook. It is compounded further by the affidavit's additional, and not obviously reconcilable, assertion that the default was also attributable to Counsel having been "trying to trace the file" — a difficulty that speaks not of bereavement but of file-management within Counsel's own office, and which sits uneasily alongside, rather than reinforcing, the bereavement narrative.
29. Taking the explanation as a whole, the Court finds it to be, in the words used by the Applicant's own instructing party in framing the issue for this Court, sketchy, ambiguous and difficult to understand. It does not disclose, with the clarity and candour that this Court is entitled to expect of a party seeking the exercise of a discretionary remedy, what precisely occurred, when it occurred, or why it prevented attendance at the hearing. An explanation of this character does not assist, and indeed undermines, the Applicant's case for reinstatement, whether considered independently or as a further, cumulative reason — over and above the misconceived reliance on Order 17 Rule 2(1) — for declining to exercise the Court's discretion in the Applicant's favour.
30. The Court has considered, for completeness, the Applicant's submission that no prejudice would be occasioned to the Respondent by reinstatement, given the relative recency of the suit. Whatever force that submission might have had were the application otherwise well-founded, the absence of prejudice to the opposite party cannot, on its own, cure a legally misconceived application or supply the want of a credible explanation for default. Prejudice, or the absence of it, is but one of several factors weighed in the exercise of this discretion, and cannot substitute for the threshold requirements discussed above.
G. DISPOSITION
31. For the reasons set out above, the Court finds that: (a) the dismissal of this suit on 24th February 2026 was a dismissal for non-attendance at a hearing fixed by consent of the parties' respective Counsel, falling under Order 12 Rule 1 of the Civil Procedure Rules, 2010, and not a dismissal for want of prosecution requiring a prior notice to show cause under Order 17 Rule 2(1) of the said Rules; (b) the application, being anchored substantially on the erroneous premise that such a notice was required and was not given, cannot succeed; and (c) the explanation tendered for the non-attendance of the Applicant and his Counsel on 24th February 2026 is, in any event, sketchy, ambiguous and insufficiently particularised to warrant the exercise of this Court's discretion in the Applicant's favour.
32. Accordingly, the Notice of Motion dated 2nd April 2026 is hereby dismissed. The dismissal order of 24th February 2026 shall stand.
33. The Respondent having successfully opposed the application, and costs following the event as the ordinary rule, the Applicant shall bear the costs of this application.
34. It is so ordered.
Dated, signed and delivered this 27th July 2026