'1. Before this Court is an application dated 15th September 2025 under certificate of urgency. The applicant is seeking the following orders;
i. That the Honourable Court to certify this application as urgent and service be in the first instance and be heard ex parte on the priority basis.
ii. That the Honourable court be pleased to issue an ex parte order of stay/ or and set aside orders given on 25th June 2025 dismissing the appeal for want of prosecution together with all other consequential orders.
iii. That there be ex parte order reinstating the appeal and give directions on hearing of the appeal herein.
iv. That the Honourable Court to order be pleased to proceed to review its calendar and issue a near date for hearing of both parties on merit and final determination of the appeal herein.
v. Costs be provided for:
2. The application is made on the following grounds;
a) The appeal was dismissed on 25th June 2025 for non-attendance.
b) That no directions had been issued by the honourable court.
c) That the applicant has informed of the dismissal upon mapping the appeal in his judiciary filing portal on 15th September 2025.
d) That applicant did not receive the said notice to show cause to attend court.
e) The applicant was therefore not aware of the notice to show cause date on the 25th June 2025.
f) The applicant had not failed to move court as he was following proceedings at the Small Claims Registry and was not deliberate but was as a result of facts beyond the applicant’s control.
g) That the challenge to secure proceedings fast on the part of Applicant was beyond his control and should not be visited upon the applicant whose quest is in the best interest of justice herein.
h) The best interest of the applicant herein would be best served if this appeal is reinstated and directions given for hearing.
i) The Applicant is desirous of having this appeal heard to its lawful conclusion.
j) The Application has been filed swiftly without delay.
k) The Applicant will suffer great loss and damage if the instant application is not granted and the Respondent will suffer no prejudice.
l) The best interest of justice will be served if the appeal is reinstated.
m) That its fair, just and expedient that this application be allowed.
3. The application is rooted in the sworn supporting affidavit of OPONDO JOHN annexed which states as follows;
• That I am a male adult of sound mind the Respondent/Applicant herein, hence conversant with the facts of this matter and competent to swear this Affidavit.
• That the appeal was dismissed on 25th June 2025 for non-attendance.
• That I was not served with the notice to show cause and or called through my phone number 0710604010 indicated in all the pleadings.
• That filed this appeal against the certificate of state cost due to the amounts awarded to the Respondent who was not Respondent by an advocate.
• That on 15th January 2024, I applied for proceedings and I have been following the proceedings till the 27th August 2025 when I receive and prepared the record.
• That upon finishing the record I approached the High Court Civil Registry to file the record of appeal and I was directed to file the record on court’s e-filing portal.
• That I created an e-filing account on Friday but could not be able to file the record due to network challenges.
• That on 15th September 2025, I managed to file the Record of appeal as attached copy marked OJ1.
• That upon perusaling the e-filing portal I came across the ruling and order dismissing the appeal for nonattendance as attached copy marked OJ 2.
• That it’s not the error on my part herein and Application for reinstatement has been filed swiftly without delay.
• That I am desirous of having this appeal heard to its lawful conclusion.
• That I will suffer great loss and damage if the instant application is not granted and the Respondent will suffer no prejudice.
• That the delay to secure proceedings was beyond my control as I have been following the proceedings till 27th August 2025 when the Small Claims Registry surrender a copy to me as per the reflection of the record herein.
• That I am sorry for the inconvenient caused to the honourable court.
• That I seek the honourable to set aside the orders of 25th June 2025 and reinstate the appeal for the best interest of justice.
• That I am ready to comply with the court’s directions and orders for the hearing of the appeal herein.
• That I swear this affidavit in support of the application now before the Honourable court.
• That facts deponed to herein are true to the best of our knowledge, information and belief save where otherwise provided.
DECISION
4. I have read and considered the application and the applicant is aggrieved that his claim was dismissed for want of prosecution. The court in R v Manyasi & Another (2014) eKLR which emphasizes the discretion of the court to set aside such orders based on principles of justice, inadvertence and delay. Similarly, in R vs Juma & Others (2013) eKLR which highlights the importance of proper service and the need o exercise discretion judicially.
5. The discretion of the court to set aside or review the dismissal order is based on the following principles;
• The Right to a Hearing: Courts in Kenya highly safeguard the right to a hearing, only removing it for sufficient and compelling reasons.
• Judicial Discretion: The court has wide discretion to set aside an ex parte order or dismissal, but this discretion must be exercised judiciously and in favor of justice.
• Sufficient Cause: A party seeking to set aside an ex parte order must demonstrate "sufficient cause" for their absence, which is a flexible concept with no fixed guidelines.
• Inadvertence or Excusable Mistake: The error leading to the ex parte order or dismissal should be inadvertent or excusable, not a deliberate attempt to obstruct justice.
• No Undue Delay: The application to set aside the ex parte order must be filed without undue delay.
• Valid Defense: The court may require the applicant to show a valid defense to the suit before setting aside the ex parte judgment or order.
• Proper Service: An ex parte order can be set aside if the defendant was not properly served or given enough time to appear.
6. From the affidavit evidence the applicant has satisfied the owners on the criteria of the sufficient cause in the context of this particular case for this court to exercise discretion by reviewing the dismissal order, setting aside and the law being a living thing substitute it with reinstatement of the suit conditioned as follows;
a. That the dismissed appeal be set down for hearing within 30 days from today’s date.
b. The memorandum of appeal be deemed as duly filed for hearing and determination.
c. Pre-trial conference be held on the 23rd October, 2025
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i. That the Honourable Court to certify this application as urgent and service be in the first instance and be heard ex parte on the priority basis.
ii. That the Honourable court be pleased to issue an ex parte order of stay/ or and set aside orders given on 25th June 2025 dismissing the appeal for want of prosecution together with all other consequential orders.
iii. That there be ex parte order reinstating the appeal and give directions on hearing of the appeal herein.
iv. That the Honourable Court to order be pleased to proceed to review its calendar and issue a near date for hearing of both parties on merit and final determination of the appeal herein.
v. Costs be provided for:
2. The application is made on the following grounds;
a) The appeal was dismissed on 25th June 2025 for non-attendance.
b) That no directions had been issued by the honourable court.
c) That the applicant has informed of the dismissal upon mapping the appeal in his judiciary filing portal on 15th September 2025.
d) That applicant did not receive the said notice to show cause to attend court.
e) The applicant was therefore not aware of the notice to show cause date on the 25th June 2025.
f) The applicant had not failed to move court as he was following proceedings at the Small Claims Registry and was not deliberate but was as a result of facts beyond the applicant’s control.
g) That the challenge to secure proceedings fast on the part of Applicant was beyond his control and should not be visited upon the applicant whose quest is in the best interest of justice herein.
h) The best interest of the applicant herein would be best served if this appeal is reinstated and directions given for hearing.
i) The Applicant is desirous of having this appeal heard to its lawful conclusion.
j) The Application has been filed swiftly without delay.
k) The Applicant will suffer great loss and damage if the instant application is not granted and the Respondent will suffer no prejudice.
l) The best interest of justice will be served if the appeal is reinstated.
m) That its fair, just and expedient that this application be allowed.
3. The application is rooted in the sworn supporting affidavit of OPONDO JOHN annexed which states as follows;
• That I am a male adult of sound mind the Respondent/Applicant herein, hence conversant with the facts of this matter and competent to swear this Affidavit.
• That the appeal was dismissed on 25th June 2025 for non-attendance.
• That I was not served with the notice to show cause and or called through my phone number 0710604010 indicated in all the pleadings.
• That filed this appeal against the certificate of state cost due to the amounts awarded to the Respondent who was not Respondent by an advocate.
• That on 15th January 2024, I applied for proceedings and I have been following the proceedings till the 27th August 2025 when I receive and prepared the record.
• That upon finishing the record I approached the High Court Civil Registry to file the record of appeal and I was directed to file the record on court’s e-filing portal.
• That I created an e-filing account on Friday but could not be able to file the record due to network challenges.
• That on 15th September 2025, I managed to file the Record of appeal as attached copy marked OJ1.
• That upon perusaling the e-filing portal I came across the ruling and order dismissing the appeal for nonattendance as attached copy marked OJ 2.
• That it’s not the error on my part herein and Application for reinstatement has been filed swiftly without delay.
• That I am desirous of having this appeal heard to its lawful conclusion.
• That I will suffer great loss and damage if the instant application is not granted and the Respondent will suffer no prejudice.
• That the delay to secure proceedings was beyond my control as I have been following the proceedings till 27th August 2025 when the Small Claims Registry surrender a copy to me as per the reflection of the record herein.
• That I am sorry for the inconvenient caused to the honourable court.
• That I seek the honourable to set aside the orders of 25th June 2025 and reinstate the appeal for the best interest of justice.
• That I am ready to comply with the court’s directions and orders for the hearing of the appeal herein.
• That I swear this affidavit in support of the application now before the Honourable court.
• That facts deponed to herein are true to the best of our knowledge, information and belief save where otherwise provided.
DECISION
4. I have read and considered the application and the applicant is aggrieved that his claim was dismissed for want of prosecution. The court in R v Manyasi & Another (2014) eKLR which emphasizes the discretion of the court to set aside such orders based on principles of justice, inadvertence and delay. Similarly, in R vs Juma & Others (2013) eKLR which highlights the importance of proper service and the need o exercise discretion judicially.
5. The discretion of the court to set aside or review the dismissal order is based on the following principles;
• The Right to a Hearing: Courts in Kenya highly safeguard the right to a hearing, only removing it for sufficient and compelling reasons.
• Judicial Discretion: The court has wide discretion to set aside an ex parte order or dismissal, but this discretion must be exercised judiciously and in favor of justice.
• Sufficient Cause: A party seeking to set aside an ex parte order must demonstrate "sufficient cause" for their absence, which is a flexible concept with no fixed guidelines.
• Inadvertence or Excusable Mistake: The error leading to the ex parte order or dismissal should be inadvertent or excusable, not a deliberate attempt to obstruct justice.
• No Undue Delay: The application to set aside the ex parte order must be filed without undue delay.
• Valid Defense: The court may require the applicant to show a valid defense to the suit before setting aside the ex parte judgment or order.
• Proper Service: An ex parte order can be set aside if the defendant was not properly served or given enough time to appear.
6. From the affidavit evidence the applicant has satisfied the owners on the criteria of the sufficient cause in the context of this particular case for this court to exercise discretion by reviewing the dismissal order, setting aside and the law being a living thing substitute it with reinstatement of the suit conditioned as follows;
a. That the dismissed appeal be set down for hearing within 30 days from today’s date.
b. The memorandum of appeal be deemed as duly filed for hearing and determination.
c. Pre-trial conference be held on the 23rd October, 2025
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