1. Before the Court is the Appellant’s application dated 24th October 2024, seeking the setting aside of orders issued by this Court on 16th October 2024, which dismissed the appeal for non-attendance. The Appellant further prays for the reinstatement of the appeal to be heard and determined on its merits.
2. In support of the application, the Appellant contended that the failure to attend court was not deliberate but arose from circumstances beyond its control. It was further argued that the Appellant had complied with all directions of the court, including filing and serving submissions upon the Respondent, who, in contrast, had failed to respond to the memorandum of appeal.
3. The Appellant maintained that it remained keen on prosecuting the appeal, and that reinstating it would serve the interests of justice by enabling a determination on merit. Reference was made to article 159(2)(d) of the Constitution to underscore the court’s obligation to dispense justice without undue regard to procedural technicalities.
4. It was also submitted that no prejudice would be occasioned to the Respondent if the appeal were reinstated, and that the application had been made without unreasonable delay. The application was supported by an affidavit sworn by Moses Kurgat, the Appellant’s Counsel on record.
5. In opposition to the appeal, the Respondent filed grounds of opposition dated 4/4/2025.
6. The Respondent contended that the application was fatally defective, lacked merit, and amounted to an abuse of court process. The applicant, it argued, had not provided a valid reason for their failure to attend court on 16/10/2024, despite being aware of the date, suggesting the absence was deliberate.
7. It was further submitted that the applicant acted in bad faith and failed to serve the Respondent with notices of the various court dates, including the hearing date. To date, the applicant had not served the Respondent with a record of appeal or any submissions. The Respondent maintained that the applicant’s conduct did not warrant the court’s discretion, noting that a litigant must respect the court by effecting proper service and attending proceedings.
Analysis and determination.
8. Having duly considered the Appellant's filed written submissions dated 6/5/2025 and the Respondent's filed submissions dated 20/5/2025, I find that the sole issue for determination is whether the Appellant has shown sufficient cause to warrant the setting aside of the Court Order of 16/10/2024, and to reinstate the Appellant’s appeal.
9. It is common ground that vide an order dated 16/10/2024, the court dismissed this appeal for non-attendance as the Appellant and/or the Appellant’s counsel was not present on the said date to prosecute the appeal.
10. The Appellant now seeks to set aside the said order and to reinstate the appeal. Its main reason being that the non-appearance by its advocates on the said date was not deliberate but was caused by the technical challenges of logging into the platform from Kericho, where the said advocate had been attending other hearings before the courts in Kericho and in Kwale.
11. In the case of Mwangi S. Kimenyi v Attorney General & another [2014] KEHC 4220 (KLR), the court elaborated on the factors that the court considered when deciding whether to reinstate a suit. It held:-
“ Invariably, what should matter to the court, is to serve substantive justice through judicious exercise of discretion which is to be guided by the following issues; 1) whether the delay has been intentional and contumelious; 2) whether the delay or the conduct of the plaintiff amounts to an abuse of the court; 3) whether the delay is inordinate and inexcusable; 4) whether the delay is one that gives rise to a substantial risk to fair trial in that it is not possible to have a fair trial of issues in action or causes or likely to cause serious prejudice to the Defendant; and 5) what prejudice will the dismissal cause to the plaintiff. By this test, the court is not assisting the indolent, but rather it is serving the interest of justice, substantive justice on behalf of all the parties.”
12. In the present matter am of the view that the reason for the non-attendance of the Appellant’s advocate on 16/10/2024 is excusable as he has produced evidence in the present application that he was attending other matters in other courts.
13. There is no evidence that the default was deliberate, contumelious, or a pattern of disregard for the Court. Indeed, the Appellant had filed its submissions and other pleadings prior to the dismissal. While the Respondent challenges the service of the record and mentions, the Appellant has provided some justification—email service under Order 5 Rule 22B—which, unless disproved, is a valid method of service.
14. Guided by Article 159 of the Constitution, which mandates this court to focus on substantive justice, I am inclined to set aside the order issued by this court on 16/10/2024.
15. Accordingly, for the reasons set out above, this Court makes the following orders:
a) The Order of 16th October, 2024, dismissing the appeal for non-attendance, is hereby set aside and the Appeal reinstated.
b) The Appellant shall, within 14 days from the date of this Ruling, effect both electronic and physical service of the Record of Appeal and all previously filed submissions on the Respondent's Advocates.
c) Costs to be in the cause.
16. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
31ST DAY OF JULY 2025
ADO MOSES
JUDGE
In the presence of: -
Moses……….C/A
2. In support of the application, the Appellant contended that the failure to attend court was not deliberate but arose from circumstances beyond its control. It was further argued that the Appellant had complied with all directions of the court, including filing and serving submissions upon the Respondent, who, in contrast, had failed to respond to the memorandum of appeal.
3. The Appellant maintained that it remained keen on prosecuting the appeal, and that reinstating it would serve the interests of justice by enabling a determination on merit. Reference was made to article 159(2)(d) of the Constitution to underscore the court’s obligation to dispense justice without undue regard to procedural technicalities.
4. It was also submitted that no prejudice would be occasioned to the Respondent if the appeal were reinstated, and that the application had been made without unreasonable delay. The application was supported by an affidavit sworn by Moses Kurgat, the Appellant’s Counsel on record.
5. In opposition to the appeal, the Respondent filed grounds of opposition dated 4/4/2025.
6. The Respondent contended that the application was fatally defective, lacked merit, and amounted to an abuse of court process. The applicant, it argued, had not provided a valid reason for their failure to attend court on 16/10/2024, despite being aware of the date, suggesting the absence was deliberate.
7. It was further submitted that the applicant acted in bad faith and failed to serve the Respondent with notices of the various court dates, including the hearing date. To date, the applicant had not served the Respondent with a record of appeal or any submissions. The Respondent maintained that the applicant’s conduct did not warrant the court’s discretion, noting that a litigant must respect the court by effecting proper service and attending proceedings.
Analysis and determination.
8. Having duly considered the Appellant's filed written submissions dated 6/5/2025 and the Respondent's filed submissions dated 20/5/2025, I find that the sole issue for determination is whether the Appellant has shown sufficient cause to warrant the setting aside of the Court Order of 16/10/2024, and to reinstate the Appellant’s appeal.
9. It is common ground that vide an order dated 16/10/2024, the court dismissed this appeal for non-attendance as the Appellant and/or the Appellant’s counsel was not present on the said date to prosecute the appeal.
10. The Appellant now seeks to set aside the said order and to reinstate the appeal. Its main reason being that the non-appearance by its advocates on the said date was not deliberate but was caused by the technical challenges of logging into the platform from Kericho, where the said advocate had been attending other hearings before the courts in Kericho and in Kwale.
11. In the case of Mwangi S. Kimenyi v Attorney General & another [2014] KEHC 4220 (KLR), the court elaborated on the factors that the court considered when deciding whether to reinstate a suit. It held:-
“ Invariably, what should matter to the court, is to serve substantive justice through judicious exercise of discretion which is to be guided by the following issues; 1) whether the delay has been intentional and contumelious; 2) whether the delay or the conduct of the plaintiff amounts to an abuse of the court; 3) whether the delay is inordinate and inexcusable; 4) whether the delay is one that gives rise to a substantial risk to fair trial in that it is not possible to have a fair trial of issues in action or causes or likely to cause serious prejudice to the Defendant; and 5) what prejudice will the dismissal cause to the plaintiff. By this test, the court is not assisting the indolent, but rather it is serving the interest of justice, substantive justice on behalf of all the parties.”
12. In the present matter am of the view that the reason for the non-attendance of the Appellant’s advocate on 16/10/2024 is excusable as he has produced evidence in the present application that he was attending other matters in other courts.
13. There is no evidence that the default was deliberate, contumelious, or a pattern of disregard for the Court. Indeed, the Appellant had filed its submissions and other pleadings prior to the dismissal. While the Respondent challenges the service of the record and mentions, the Appellant has provided some justification—email service under Order 5 Rule 22B—which, unless disproved, is a valid method of service.
14. Guided by Article 159 of the Constitution, which mandates this court to focus on substantive justice, I am inclined to set aside the order issued by this court on 16/10/2024.
15. Accordingly, for the reasons set out above, this Court makes the following orders:
a) The Order of 16th October, 2024, dismissing the appeal for non-attendance, is hereby set aside and the Appeal reinstated.
b) The Appellant shall, within 14 days from the date of this Ruling, effect both electronic and physical service of the Record of Appeal and all previously filed submissions on the Respondent's Advocates.
c) Costs to be in the cause.
16. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
31ST DAY OF JULY 2025
ADO MOSES
JUDGE
In the presence of: -
Moses……….C/A