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1. Vide a notice of motion dated 18th June, 2025 the applicant seeks orders that the application dated 12th May 2024 dismissed on 12th June 2024 for nonattendance be reinstated and that costs be provided for.
2. The application is premised on the grounds on its face and supported by the affidavit of Julius Ombati advocate, sworn on 18th June, 2025 on which the grounds on the face of the application are reiterated. He avers that when the application dated 12th May, 2025 came up for inter-parties hearing on 12th June 2025, he experienced internet connectivity challenges which were beyond his control. He urges the court to reinstate the application as failure to attend court was not intentional.
3. The application is not opposed.
4. Order 12 Rule 7 of the Civil Procedure Rules provides;
“Where under this Order judgment has been entered or the suit has been dismissed, the court, on application, may set aside or vary the judgment or order upon such terms as may be just.”
5. The decision of whether or not to allow an application for setting aside judgment or an order for dismissal of a suit due to nonattendance by an applicant is at the discretion of the court. This discretion has to be exercised judiciously, as stated in the case of Richard Ncharpi Leiyagu v Independent Electoral Boundaries Commission & 2 Others [2013] eKLR, where the Court of Appeal stated:
“We agree with those noble principles which go further to establish that the court''s discretion to set aside an ex-parte judgment or order for that matter, is intended to avoid injustice or hardship resulting from an accident, inadvertence or inexcusable mistake or error but not to assist a person who deliberately seeks to obstruct or delay the course of justice. We have considered the reasons that were offered by the appellant regarding their failure to attend court on the 10th June, 2013 with anxious minds. We have asked ourselves whether failure to attend court on 10th June, 2013, constituted an excusable mistake, an error of judgment regarding counsel''s failure to diarize the date properly or was it meant to deliberately delay the cause of justice.”
6. In John Nahashon Mwangi –vs- Kenya Finance Bank Limited (in Liquidation) [2015 eKLR, the court stated that the tests to apply in an application to reinstate a suit are whether there are reasonable grounds to reinstate considering the prejudice that the defendant would suffer if reinstatement of the suit was made against the prejudice the plaintiff would suffer if the suit is not reinstated.
7. The question herein is whether the applicant has demonstrated reasonable grounds for reinstatement of the application and whether the respondent will suffer prejudice if the application is reinstated.
8. Articles 48 and 50 of the Constitution guarantees every Kenyan the right to access justice and fair hearing. Article 159 requires that justice shall be administered without undue regard to technicalities whereas Sections 3, 4 and 13 of the Environment and Land Court Act as read together with Section 1A, 1B and 3A of the Civil Procedure Act expects the court to strive towards substantive justice.
9. In the case before the court, the applicant has stated that failure to attend court was caused by connectivity challenges; that by the time he succeeded in logging in 11:00 a.m., he was informed that the application had been dismissed. Courts have held severally that for such an excuse to be believable, there needs to be availed sufficient evidence that counsel attempted to log in but was unsuccessful due to an unstable network connection or technical failures. See the cases of Sophia Chemasigen Kachuwai & Another v Union of Kenya Civil Servants & 2 Others (2021) eKLR and Mutinda Musila Malua v Ngunga Yatta, Deputy County Commissioner Kitui West- Sub County & 2 Others [2021] eKLR) I
10. Although the instant application was filed promptly, only six days after the earlier application was dismissed, no sufficient evidence has been provided to demonstrate that counsel attempted to log in but was unsuccessful due to an unstable network connection or technical failures.
11. The application dated 12th May, 2025 dismissed for non-attendance was seeking leave to appeal out of time. In the case of Nicholas Kiptoo Arap Korir Salat vs. IEBC & 7 others, SC Appl 16/2014 (2014) eklr, the Supreme Court of Kenya, laid down the principles to be considered by courts when exercising discretion on whether to grant leave to file an appeal out of time. These are;
(i) “Extension of time is not a right of a party. It is equitable remedy that is available to a deserving party at the discretion of the court;
(ii) The party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;
(iii) As to whether the court should exercise the discretion to extend time, is a consideration to be made a case by case basis;
(iv) Whether there is a reason for the delay; the delay should be explained to the satisfaction of the court;
(v) Whether there will be any prejudice to be suffered by the respondents if the extension is granted;
(vi) The application should have been brought without undue delay; and
(vii) In certain cases, like election petitions, public interest should be a consideration for extending time.”
12. Also see the case of Ithongo (Suing as Legal Representative of the Estate of Geoffrey Ithongo Thindiu- Deceased) v Ithongo (Suing as Legal Representative of the Estate of Ishmael Ithongo - Deceased) [2024] KESC 17 (KLR) where the court held; -
“The intended appeal is not arguable as the applicant has failed to cite any of the grounds of review of a ruling under Order 45 of the Civil Procedure Rules as well as failing to annex a draft memorandum of appeal to allow the Court gauge the arguability of the applicant’s intended appeal.” and the case of Dilpack Kenya Limited v William Muthama Kitonyi [2018] eKLR Odunga J. observed that;
“In an application for extension of time, where the Court is being asked to exercise discretion, there must be some material before the Court to enable its discretion to be so exercised. Once there is non-compliance, the burden is upon the party seeking indulgence to satisfy the court why the discretion should nevertheless be exercised in his favour and the rule is that where there is no explanation, there shall be no indulgence. (emphasis own) See Ratman v Cumarasamy [1964] 3 All ER 933; Savill v Southend Health Authority [1995] 1 WLR 1254 at 1259."
13. In the application dismissed for nonattendance, no draft memorandum of appeal was attached to enable the court assess prospects of success of the intended appeal. Without some material placed before the court to enable it exercise its discretion, there can be no indulgence. Therefore, reinstating the application as filed will serve no purpose.
14. Consequently, I find the application to be devoid of merit and l dismiss it with no orders on costs as the application was not defended.
15. Orders accordingly.
Dated, signed and delivered virtually at Kabarnet this 25th day of September, 2025.
Ruling delivered virtually in the absence of the parties
Court Assistant: Ian
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1. Vide a notice of motion dated 18th June, 2025 the applicant seeks orders that the application dated 12th May 2024 dismissed on 12th June 2024 for nonattendance be reinstated and that costs be provided for.
2. The application is premised on the grounds on its face and supported by the affidavit of Julius Ombati advocate, sworn on 18th June, 2025 on which the grounds on the face of the application are reiterated. He avers that when the application dated 12th May, 2025 came up for inter-parties hearing on 12th June 2025, he experienced internet connectivity challenges which were beyond his control. He urges the court to reinstate the application as failure to attend court was not intentional.
3. The application is not opposed.
4. Order 12 Rule 7 of the Civil Procedure Rules provides;
“Where under this Order judgment has been entered or the suit has been dismissed, the court, on application, may set aside or vary the judgment or order upon such terms as may be just.”
5. The decision of whether or not to allow an application for setting aside judgment or an order for dismissal of a suit due to nonattendance by an applicant is at the discretion of the court. This discretion has to be exercised judiciously, as stated in the case of Richard Ncharpi Leiyagu v Independent Electoral Boundaries Commission & 2 Others [2013] eKLR, where the Court of Appeal stated:
“We agree with those noble principles which go further to establish that the court''s discretion to set aside an ex-parte judgment or order for that matter, is intended to avoid injustice or hardship resulting from an accident, inadvertence or inexcusable mistake or error but not to assist a person who deliberately seeks to obstruct or delay the course of justice. We have considered the reasons that were offered by the appellant regarding their failure to attend court on the 10th June, 2013 with anxious minds. We have asked ourselves whether failure to attend court on 10th June, 2013, constituted an excusable mistake, an error of judgment regarding counsel''s failure to diarize the date properly or was it meant to deliberately delay the cause of justice.”
6. In John Nahashon Mwangi –vs- Kenya Finance Bank Limited (in Liquidation) [2015 eKLR, the court stated that the tests to apply in an application to reinstate a suit are whether there are reasonable grounds to reinstate considering the prejudice that the defendant would suffer if reinstatement of the suit was made against the prejudice the plaintiff would suffer if the suit is not reinstated.
7. The question herein is whether the applicant has demonstrated reasonable grounds for reinstatement of the application and whether the respondent will suffer prejudice if the application is reinstated.
8. Articles 48 and 50 of the Constitution guarantees every Kenyan the right to access justice and fair hearing. Article 159 requires that justice shall be administered without undue regard to technicalities whereas Sections 3, 4 and 13 of the Environment and Land Court Act as read together with Section 1A, 1B and 3A of the Civil Procedure Act expects the court to strive towards substantive justice.
9. In the case before the court, the applicant has stated that failure to attend court was caused by connectivity challenges; that by the time he succeeded in logging in 11:00 a.m., he was informed that the application had been dismissed. Courts have held severally that for such an excuse to be believable, there needs to be availed sufficient evidence that counsel attempted to log in but was unsuccessful due to an unstable network connection or technical failures. See the cases of Sophia Chemasigen Kachuwai & Another v Union of Kenya Civil Servants & 2 Others (2021) eKLR and Mutinda Musila Malua v Ngunga Yatta, Deputy County Commissioner Kitui West- Sub County & 2 Others [2021] eKLR) I
10. Although the instant application was filed promptly, only six days after the earlier application was dismissed, no sufficient evidence has been provided to demonstrate that counsel attempted to log in but was unsuccessful due to an unstable network connection or technical failures.
11. The application dated 12th May, 2025 dismissed for non-attendance was seeking leave to appeal out of time. In the case of Nicholas Kiptoo Arap Korir Salat vs. IEBC & 7 others, SC Appl 16/2014 (2014) eklr, the Supreme Court of Kenya, laid down the principles to be considered by courts when exercising discretion on whether to grant leave to file an appeal out of time. These are;
(i) “Extension of time is not a right of a party. It is equitable remedy that is available to a deserving party at the discretion of the court;
(ii) The party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;
(iii) As to whether the court should exercise the discretion to extend time, is a consideration to be made a case by case basis;
(iv) Whether there is a reason for the delay; the delay should be explained to the satisfaction of the court;
(v) Whether there will be any prejudice to be suffered by the respondents if the extension is granted;
(vi) The application should have been brought without undue delay; and
(vii) In certain cases, like election petitions, public interest should be a consideration for extending time.”
12. Also see the case of Ithongo (Suing as Legal Representative of the Estate of Geoffrey Ithongo Thindiu- Deceased) v Ithongo (Suing as Legal Representative of the Estate of Ishmael Ithongo - Deceased) [2024] KESC 17 (KLR) where the court held; -
“The intended appeal is not arguable as the applicant has failed to cite any of the grounds of review of a ruling under Order 45 of the Civil Procedure Rules as well as failing to annex a draft memorandum of appeal to allow the Court gauge the arguability of the applicant’s intended appeal.” and the case of Dilpack Kenya Limited v William Muthama Kitonyi [2018] eKLR Odunga J. observed that;
“In an application for extension of time, where the Court is being asked to exercise discretion, there must be some material before the Court to enable its discretion to be so exercised. Once there is non-compliance, the burden is upon the party seeking indulgence to satisfy the court why the discretion should nevertheless be exercised in his favour and the rule is that where there is no explanation, there shall be no indulgence. (emphasis own) See Ratman v Cumarasamy [1964] 3 All ER 933; Savill v Southend Health Authority [1995] 1 WLR 1254 at 1259."
13. In the application dismissed for nonattendance, no draft memorandum of appeal was attached to enable the court assess prospects of success of the intended appeal. Without some material placed before the court to enable it exercise its discretion, there can be no indulgence. Therefore, reinstating the application as filed will serve no purpose.
14. Consequently, I find the application to be devoid of merit and l dismiss it with no orders on costs as the application was not defended.
15. Orders accordingly.
Dated, signed and delivered virtually at Kabarnet this 25th day of September, 2025.
Ruling delivered virtually in the absence of the parties
Court Assistant: Ian
'