1. The application before me is dated 7th November 2022 (sic!). It was field by the Respondent, Mariam Mohamed Mbaruk (hereafter “Mariam”). Mariam seeks the following orders:-
a. Spent;
b. That there be a stay of execution of the order of this court issued on 8th November 2012 pending the interpartes hearing and determination of this application;
c. That the orders of this court issued on 8th November 2023, be set aside and or vacated, and the Respondent be granted unconditional leave to defend the application dated 10th August 2022; and
d. Costs of the suit.
2. The application is brought under Order 12 Rule 7 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act. It is based on the grounds in the body of the said Motion as well as the supporting affidavit sworn by Mariam on 7th November 2023. She deposed that she was not served with the Notice of Motion dated 10th August 2023 and was thus not aware that the same was due for hearing. That being the case the impugned hearing was irregular and ought to be set aside as of right. She further deposed that she had an arguable defence and that it would be wrong for her to be condemned unheard.
3. The application came up for hearing under a certificate of urgency on 11th December 2023. This court ordered the Respondent/Applicant to effect service on the Applicant /Respondent and issued interim orders.
4. The matter came up for an interpartes hearing on 30th January 2021. On the said date, Ms Asewe, holding brief for Mr Mutubia, counsel for the Applicant /Respondent, was present. This court gave directions on how the matter would proceed. The Applicant/Respondent was required to file a replying affidavit within 7 days of the said date. The application was slated for mention on 26 February 2023 to confirm compliance and to fix a ruling date.
5. On 26th February 2024, the Applicants/Respondents had not filed a replying affidavit and/or written submissions. No explanation was given for the failure. Despite the fact that the date was taken in the presence of parties’ advocates, there was no representation for the Applicants/Respondents. Pursuant to the Constitutional dictate that justice must not be delayed this court fixed the matter for ruling on 4th March 2024.
6. I have considered the application dated 7th November 2022 (sic). The application although wrongly dated seeks to set aside the decision this court made on 8th November 2023 allowing the Applicants/Respondents’ application dated 10th August 2023 as prayed.
7. The application is brought under Order 12 Rule 7 of the Civil Procedure Rules. Although the said rules refer to suits, it is my view that the same applies to applications mutatis mutandis and that the court can, in the exercise of its wide, unfettered discretion, set aside judgments or rulings delivered in the absence of a party to the proceedings, on such terms as are just.
8. The application is not opposed. I have considered the explanation given by the Respondent/Applicant for her failure to oppose the application dated 12th August 2023. Her explanation is plausible. Given the nature of the matter the greater interest of justice would be served if the application dated 10th August 2023 was heard, and a decision on merits, given.
9. The upshot of the foregoing is that the application dated 7th November 2023 is allowed. The matter is to be mentioned on 18th March 2024 for directions.
10. Costs shall be in the cause.
11. Orders accordingly.
Dated and signed at Mombasa this 4th day of March 2023
a. Spent;
b. That there be a stay of execution of the order of this court issued on 8th November 2012 pending the interpartes hearing and determination of this application;
c. That the orders of this court issued on 8th November 2023, be set aside and or vacated, and the Respondent be granted unconditional leave to defend the application dated 10th August 2022; and
d. Costs of the suit.
2. The application is brought under Order 12 Rule 7 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act. It is based on the grounds in the body of the said Motion as well as the supporting affidavit sworn by Mariam on 7th November 2023. She deposed that she was not served with the Notice of Motion dated 10th August 2023 and was thus not aware that the same was due for hearing. That being the case the impugned hearing was irregular and ought to be set aside as of right. She further deposed that she had an arguable defence and that it would be wrong for her to be condemned unheard.
3. The application came up for hearing under a certificate of urgency on 11th December 2023. This court ordered the Respondent/Applicant to effect service on the Applicant /Respondent and issued interim orders.
4. The matter came up for an interpartes hearing on 30th January 2021. On the said date, Ms Asewe, holding brief for Mr Mutubia, counsel for the Applicant /Respondent, was present. This court gave directions on how the matter would proceed. The Applicant/Respondent was required to file a replying affidavit within 7 days of the said date. The application was slated for mention on 26 February 2023 to confirm compliance and to fix a ruling date.
5. On 26th February 2024, the Applicants/Respondents had not filed a replying affidavit and/or written submissions. No explanation was given for the failure. Despite the fact that the date was taken in the presence of parties’ advocates, there was no representation for the Applicants/Respondents. Pursuant to the Constitutional dictate that justice must not be delayed this court fixed the matter for ruling on 4th March 2024.
6. I have considered the application dated 7th November 2022 (sic). The application although wrongly dated seeks to set aside the decision this court made on 8th November 2023 allowing the Applicants/Respondents’ application dated 10th August 2023 as prayed.
7. The application is brought under Order 12 Rule 7 of the Civil Procedure Rules. Although the said rules refer to suits, it is my view that the same applies to applications mutatis mutandis and that the court can, in the exercise of its wide, unfettered discretion, set aside judgments or rulings delivered in the absence of a party to the proceedings, on such terms as are just.
8. The application is not opposed. I have considered the explanation given by the Respondent/Applicant for her failure to oppose the application dated 12th August 2023. Her explanation is plausible. Given the nature of the matter the greater interest of justice would be served if the application dated 10th August 2023 was heard, and a decision on merits, given.
9. The upshot of the foregoing is that the application dated 7th November 2023 is allowed. The matter is to be mentioned on 18th March 2024 for directions.
10. Costs shall be in the cause.
11. Orders accordingly.
Dated and signed at Mombasa this 4th day of March 2023