BRIEF FACTS
The Interested Parties/Applicants filed the instant application dated 25th February, 2025 seeking the following orders:
a) The Court be pleased to reinstate the intended interested party/applicants application dated 21/01/2025 for hearing and determination.
b) Costs be in the cause.
The Application was based on grounds set out and supported by the Affidavit of EDWARD F. OMBIMA advocate for the Applicants.
He stated that the Applicants filed the application dated 21st January, 2025 under Certificate of Urgency seeking to be enjoined to the suit.
He further stated that the application was scheduled for inter-parties hearing on 25th February, 2025 but on the said date he experienced network challenges hence was unable to login in time to address the court.
He stated that he was only able to login in at about 9:05am and upon inquiry, the application had already been mentioned and dismissed for non-attendance.
He stated that the failure to attend court at 8:30am was not intentional as it was occasioned by circumstances beyond his control. He went on to state that he had served all parties with the application and was thus keen on prosecuting the application.
He also stated that the facts in issue was sensitive to warrant the Applicants being the administrators of the estate be allowed to participate in the case. He added that no prejudice would be occasioned upon any party since the suit is still fresh and that the Defendants were yet to file their defence.
He urged the court to allow the application so as to allow the court comprehensively determine the facts in issue.
Response
There was no response by any of the parties.
Submissions
None of the parties filed their submissions.
Analysis and Determination
This court has considered the application and supporting affidavit and submissions and is of the view that the main issue for determination is whether the orders of 17th October, 2023 dismissing the suit for non-attendance should be reviewed.
The jurisdiction of this court for review of orders is provided for under Order 45 Rule 1 (1) of the Civil Procedure Rules which provides as follows:
“1. Application for review of decree or order
(1) Any person considering himself aggrieved-
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or
(b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.”
It is this court’s view that the basis of an application for review of an order is on the recovery of new and important matters or evidence which after due diligence, was not within the Applicant’s knowledge or could not be produced by him at the time when the order was made. Further an application for review may also be made on account of some mistake or error apparent on the face of the record, or for any other sufficient reason.
It was the Applicant’s case that the cause for non-attendance was not intentional since it was due to a technical hitch with the virtual court where he logged in after the matter had already been called out. It is noteworthy that the Respondents did not object to the present application.
This court shall exercise its discretion and in the interest of justice allow the Applicant’s application.
Consequently, I find that the instant application is with merit and is therefore allowed in the following terms:
a) The orders of this court dated 25th February, 2025 is hereby set aside.
b) The Applicant’s application dated 21st January, 2025 is reinstated for hearing and determination.
c) Each party to bear its own costs
The Interested Parties/Applicants filed the instant application dated 25th February, 2025 seeking the following orders:
a) The Court be pleased to reinstate the intended interested party/applicants application dated 21/01/2025 for hearing and determination.
b) Costs be in the cause.
The Application was based on grounds set out and supported by the Affidavit of EDWARD F. OMBIMA advocate for the Applicants.
He stated that the Applicants filed the application dated 21st January, 2025 under Certificate of Urgency seeking to be enjoined to the suit.
He further stated that the application was scheduled for inter-parties hearing on 25th February, 2025 but on the said date he experienced network challenges hence was unable to login in time to address the court.
He stated that he was only able to login in at about 9:05am and upon inquiry, the application had already been mentioned and dismissed for non-attendance.
He stated that the failure to attend court at 8:30am was not intentional as it was occasioned by circumstances beyond his control. He went on to state that he had served all parties with the application and was thus keen on prosecuting the application.
He also stated that the facts in issue was sensitive to warrant the Applicants being the administrators of the estate be allowed to participate in the case. He added that no prejudice would be occasioned upon any party since the suit is still fresh and that the Defendants were yet to file their defence.
He urged the court to allow the application so as to allow the court comprehensively determine the facts in issue.
Response
There was no response by any of the parties.
Submissions
None of the parties filed their submissions.
Analysis and Determination
This court has considered the application and supporting affidavit and submissions and is of the view that the main issue for determination is whether the orders of 17th October, 2023 dismissing the suit for non-attendance should be reviewed.
The jurisdiction of this court for review of orders is provided for under Order 45 Rule 1 (1) of the Civil Procedure Rules which provides as follows:
“1. Application for review of decree or order
(1) Any person considering himself aggrieved-
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or
(b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.”
It is this court’s view that the basis of an application for review of an order is on the recovery of new and important matters or evidence which after due diligence, was not within the Applicant’s knowledge or could not be produced by him at the time when the order was made. Further an application for review may also be made on account of some mistake or error apparent on the face of the record, or for any other sufficient reason.
It was the Applicant’s case that the cause for non-attendance was not intentional since it was due to a technical hitch with the virtual court where he logged in after the matter had already been called out. It is noteworthy that the Respondents did not object to the present application.
This court shall exercise its discretion and in the interest of justice allow the Applicant’s application.
Consequently, I find that the instant application is with merit and is therefore allowed in the following terms:
a) The orders of this court dated 25th February, 2025 is hereby set aside.
b) The Applicant’s application dated 21st January, 2025 is reinstated for hearing and determination.
c) Each party to bear its own costs