Background and Introduction
1. Before the Court is an application dated 17th March 2025 in which the Advocate/Applicant seeks to have the order made on 12th February allowing the Client/Respondent to pay the balance of the decretal sum by monthly instalments of Kshs. 10,000/=, reviewed and/or set aside. The Advocate further seeks to have the Client’s Notice of Motion dated 9th December 2024 reinstated and set down for hearing inter partes and on merit.
2. The Advocate states that the orders of 12th February 2025 were issued in his absence during a mention where the Advocate failed to attend court due to an inadvertent failure to diarize the date, and that the orders were therefore made without the benefit of a hearing.
3. The Client opposed the application through a replying affidavit, in which she avers that the Advocate was served with the application and the resulting court order and was aware of the mention date. She confirms that on 12th February 2025, the Court allowed her request to pay the balance on interest and costs in monthly instalments of Kshs. 10,000/-, which she has faithfully complied with.
Analysis and Determination
4. I have considered the pleadings, the rival affidavits, and the record of the court. It is not in dispute that the Advocate was served with the application dated 9th December 2024 and the orders issued on 10th December 2024 where the Court scheduled the matter for mention on 12th February 2025. The Advocate failed to attend court on 12th February 2025 for the reasons that have been stated in the affidavit in support of this application.
5. From the court record, it is evident that the Court proceeded on the mistaken belief that the application of 9th December 2024 was unopposed and granted the orders sought by the Client noting that in any case the Advocate was equally absent. However, it has since emerged, through the supporting affidavit of the Advocate, that the application was in fact opposed. A replying affidavit had been duly sworn and filed on 4th February 2025 in response to the Client’s application.
6. It is well-established that the Court retains the discretion to set aside ex parte orders where sufficient cause is demonstrated and where the interests of justice so require. This discretion is exercised to uphold the right to a fair hearing and to ensure that parties are not denied a substantive determination of their dispute due to inadvertent procedural missteps. The overriding objective of the Court, as set out under Article 159 of the Constitution and Sections 1A and 1B of the Civil Procedure Act, is to facilitate the just, expeditious, proportionate, and affordable resolution of civil disputes. In that spirit, the Court must be guided by substance rather than form and ensure that technicalities do not defeat justice.
7. Furthermore, Section 100 of the Civil Procedure Act grants the Court a general power to correct clerical or arithmetical mistakes or errors arising from accidental slips or omissions in its judgments, rulings, or orders at any time. This provision reinforces the Court’s ability to remedy procedural errors where doing so serves the ends of justice.
8. I note that the Client has been compliant with the orders of 12th February 2025 and has demonstrated good faith in making payments as directed. That conduct ought to be preserved. However, that does not override the Advocate’s right to be heard on the question of instalment payments for the remaining sums. I am of the view that the Advocate has made out a proper case for setting aside of the Court’s orders.
Disposition
9. In light of the foregoing, I find merit in the application dated 17th March 2025. Accordingly, I make the following orders:
i. The ex parte orders issued on 12th February 2025 are hereby set aside.
ii. The Respondent’s Notice of Motion dated 9th December 2024 is reinstated and shall be heard inter partes on merit.
iii. The payments made pursuant to the orders of 12th February 2025 shall be considered in any final determination of the Respondent’s application.
iv. Each party shall bear their own costs of this application.
It is so ordered.
DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 14TH DAY OF JULY 2025.
F. MUGAMBI
JUDGE
1. Before the Court is an application dated 17th March 2025 in which the Advocate/Applicant seeks to have the order made on 12th February allowing the Client/Respondent to pay the balance of the decretal sum by monthly instalments of Kshs. 10,000/=, reviewed and/or set aside. The Advocate further seeks to have the Client’s Notice of Motion dated 9th December 2024 reinstated and set down for hearing inter partes and on merit.
2. The Advocate states that the orders of 12th February 2025 were issued in his absence during a mention where the Advocate failed to attend court due to an inadvertent failure to diarize the date, and that the orders were therefore made without the benefit of a hearing.
3. The Client opposed the application through a replying affidavit, in which she avers that the Advocate was served with the application and the resulting court order and was aware of the mention date. She confirms that on 12th February 2025, the Court allowed her request to pay the balance on interest and costs in monthly instalments of Kshs. 10,000/-, which she has faithfully complied with.
Analysis and Determination
4. I have considered the pleadings, the rival affidavits, and the record of the court. It is not in dispute that the Advocate was served with the application dated 9th December 2024 and the orders issued on 10th December 2024 where the Court scheduled the matter for mention on 12th February 2025. The Advocate failed to attend court on 12th February 2025 for the reasons that have been stated in the affidavit in support of this application.
5. From the court record, it is evident that the Court proceeded on the mistaken belief that the application of 9th December 2024 was unopposed and granted the orders sought by the Client noting that in any case the Advocate was equally absent. However, it has since emerged, through the supporting affidavit of the Advocate, that the application was in fact opposed. A replying affidavit had been duly sworn and filed on 4th February 2025 in response to the Client’s application.
6. It is well-established that the Court retains the discretion to set aside ex parte orders where sufficient cause is demonstrated and where the interests of justice so require. This discretion is exercised to uphold the right to a fair hearing and to ensure that parties are not denied a substantive determination of their dispute due to inadvertent procedural missteps. The overriding objective of the Court, as set out under Article 159 of the Constitution and Sections 1A and 1B of the Civil Procedure Act, is to facilitate the just, expeditious, proportionate, and affordable resolution of civil disputes. In that spirit, the Court must be guided by substance rather than form and ensure that technicalities do not defeat justice.
7. Furthermore, Section 100 of the Civil Procedure Act grants the Court a general power to correct clerical or arithmetical mistakes or errors arising from accidental slips or omissions in its judgments, rulings, or orders at any time. This provision reinforces the Court’s ability to remedy procedural errors where doing so serves the ends of justice.
8. I note that the Client has been compliant with the orders of 12th February 2025 and has demonstrated good faith in making payments as directed. That conduct ought to be preserved. However, that does not override the Advocate’s right to be heard on the question of instalment payments for the remaining sums. I am of the view that the Advocate has made out a proper case for setting aside of the Court’s orders.
Disposition
9. In light of the foregoing, I find merit in the application dated 17th March 2025. Accordingly, I make the following orders:
i. The ex parte orders issued on 12th February 2025 are hereby set aside.
ii. The Respondent’s Notice of Motion dated 9th December 2024 is reinstated and shall be heard inter partes on merit.
iii. The payments made pursuant to the orders of 12th February 2025 shall be considered in any final determination of the Respondent’s application.
iv. Each party shall bear their own costs of this application.
It is so ordered.
DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 14TH DAY OF JULY 2025.
F. MUGAMBI
JUDGE