REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
COMMERCIAL CASE NO E003 OF 2023
SHEILA NEKESA SIFUNA (Suing as the Personal Representative
of the estate of STANELY SIFUNA BUSURU (DSCD) …………………………………………………..PLAINTIFF/RESPONDENT
VERSUS
KENYA POWER & LIGHTING COMPANY……………………………………..DEFENDANT/APPLICANT
RULING
A. APPLICATION
1. By way of a Motion application dated 28th October 2025, the Defendant/Applicant herein sought to have the Court orders issued on 28th October 2025, dismissing its motion application dated 16th October 2025, for non-attendance, vacated and the said application be reinstated and set down for hearing.
2. The Motion application was based on the grounds on the face of it and the Supporting Affidavit sworn on 28th October 2025, by Herbert Nyamurongi, counsel for the Applicant.
3. According to the Applicant, when the matter came up for compliance with Court directions, he easily logged into the virtual Court on or about 8. 40 a.m. and was present until 1.00 a.m. but his matter was not called out. He sought an explanation from the Court Assistant who informed him that his matter was called out three times, but due to his lack of response the Court dismissed the Applicant’s application dated 16th October 2025, for non-attendance. Counsel insists that he was present in Court, but his laptop developed audio problems making it impossible for him to hear the Court call out his matter. He beseeched this Court to reinstate the Applicant’s application.
4. Opposing the application, the Respondent, Stanely Sifuna Busuru, swore a Replying Affidavit on 6th November 2025, wherein he averred that the Applicant’s application is vexatious, frivolous and an abuse of the Court’s due process. According to him, the Court of the Applicant in prosecuting the matter did not deserve the remedy sought and the Applicant’s Supporting Affidavit is based on false narratives.
5. Vide Court directions issued on 29th October 2025, the Motion application was to be canvassed by way of written submissions. Both parties complied with the Court directive.
B. DETERMINATION
6. In the case of Lucy Bosire v. Kehancha Div. Land Disputes Tribunal and 2 others [2013] KEHC 681 (KLR), the Court held as follows:-
“The principles guiding the setting aside ex parte orders are trite that the court has wide powers to set aside such ex parte orders save that where the discretion is exercised the Court will do so on terms that are just. In CMC Holdings Limited vs. Nzioki [2004] 1 KLR 173 it was held as follows:-
“That discretion must be exercised upon reasons and must be exercised judiciously…... In law the discretion that a court of law has, in deciding whether or not to set aside ex parte order was meant to ensure that a litigant does not suffer injustice or hardship as a result of amongst others an excusable mistake or error. It would not be proper use of such discretion if the Court turns its back to a litigant who clearly demonstrates such an excusable mistake, inadvertence, accident or error. Such an exercise of discretion would be wrong principle...The answer to that weighty matter was not to advise the appellant of the recourse open to it as the learned magistrate did here. In doing so she drove the appellant out of the seat of justice empty handed when it had what it might have well amounted to an excusable mistake visited upon the appellant by its advocate”.
7. In Branco Arabe Espanol vs. Bank of Uganda [1999] 2 EA 22, Oder, JSC stated:
“The administration of justice should normally require that the substance of all disputes should be investigated and decided on their merits, and that errors, lapses should not necessarily debar a litigant from the pursuit of his rights and unless a lack of adherence to rules renders the appeal process difficult and inoperative, it would seem that the main purpose of litigation, namely the hearing and determination of disputes, should be fostered rather than hindered”.
8. In this era of technology, I take judicial notice of the fact that with technological gadgets can be unreliable and susceptible to technical malfunction and there is a high probability that the Applicant’s Advocate may have faced audio challenges during the Virtual Court session. The dismissal of the defendant’s/Applicant’s application was attributable to mistakes of it’s advocates and the same ought not to be visited upon it.
9. Time and again the Courts have held that mistakes of advocates ought not be visited on their clients. In the celebrated case of Philip Chemwolo & Another v. Augustine Kubede [1982-1988] KAR 103 at 104, Apaloo J.A stated:-
“Blunders will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case heard on merit. I think the broad equity approach to this matter is that unless there is fraud or intention to overreach, there is no error or default that cannot be put right by payment of costs. The court as is often said exists for the purpose of deciding the rights of the parties and not the purpose of imposing discipline.”
10. Under Article 50 (1) of the Constitution, every party has a right to be heard and the fundamental duty of the court is to ensure that the parties that are seeking justice can access justice by being accorded such opportunity to be heard.
11. For justice to be done to a party, the Court needs to ensure that an excusable mistake does not consign the affected party’s case to oblivion irrespective of its merits. The Court is obliged to consider all the surrounding circumstances before taking the drastic step of shutting the doors of justice upon a litigant therefore driving the litigant out of the seat of justice empty handed.
12. Considering the entire circumstances of the case, I find that it would be an injustice to deny the Applicant herein a chance to present its case. Substantive justice demands that the Applicant be accorded the opportunity to ventilate it’s application and to have the same determined on merit. I therefore allow the application herein and I set aside the orders made on 28th October 2026 and I reinstate the Defendant’s Notice of Motion dated 16th October 2025.
13. Each party shall bear it’s own costs.
Orders accordingly
Delivered, Signed and Dated at Bungoma this 16th day of February 2026.
Mwanaisha.S. Shariff
Judge
In the presence of:
Ms Kebungo for the defendant
Mr Bw’onchiri for the Plaintiff
IN THE HIGH COURT OF KENYA
AT BUNGOMA
COMMERCIAL CASE NO E003 OF 2023
SHEILA NEKESA SIFUNA (Suing as the Personal Representative
of the estate of STANELY SIFUNA BUSURU (DSCD) …………………………………………………..PLAINTIFF/RESPONDENT
VERSUS
KENYA POWER & LIGHTING COMPANY……………………………………..DEFENDANT/APPLICANT
RULING
A. APPLICATION
1. By way of a Motion application dated 28th October 2025, the Defendant/Applicant herein sought to have the Court orders issued on 28th October 2025, dismissing its motion application dated 16th October 2025, for non-attendance, vacated and the said application be reinstated and set down for hearing.
2. The Motion application was based on the grounds on the face of it and the Supporting Affidavit sworn on 28th October 2025, by Herbert Nyamurongi, counsel for the Applicant.
3. According to the Applicant, when the matter came up for compliance with Court directions, he easily logged into the virtual Court on or about 8. 40 a.m. and was present until 1.00 a.m. but his matter was not called out. He sought an explanation from the Court Assistant who informed him that his matter was called out three times, but due to his lack of response the Court dismissed the Applicant’s application dated 16th October 2025, for non-attendance. Counsel insists that he was present in Court, but his laptop developed audio problems making it impossible for him to hear the Court call out his matter. He beseeched this Court to reinstate the Applicant’s application.
4. Opposing the application, the Respondent, Stanely Sifuna Busuru, swore a Replying Affidavit on 6th November 2025, wherein he averred that the Applicant’s application is vexatious, frivolous and an abuse of the Court’s due process. According to him, the Court of the Applicant in prosecuting the matter did not deserve the remedy sought and the Applicant’s Supporting Affidavit is based on false narratives.
5. Vide Court directions issued on 29th October 2025, the Motion application was to be canvassed by way of written submissions. Both parties complied with the Court directive.
B. DETERMINATION
6. In the case of Lucy Bosire v. Kehancha Div. Land Disputes Tribunal and 2 others [2013] KEHC 681 (KLR), the Court held as follows:-
“The principles guiding the setting aside ex parte orders are trite that the court has wide powers to set aside such ex parte orders save that where the discretion is exercised the Court will do so on terms that are just. In CMC Holdings Limited vs. Nzioki [2004] 1 KLR 173 it was held as follows:-
“That discretion must be exercised upon reasons and must be exercised judiciously…... In law the discretion that a court of law has, in deciding whether or not to set aside ex parte order was meant to ensure that a litigant does not suffer injustice or hardship as a result of amongst others an excusable mistake or error. It would not be proper use of such discretion if the Court turns its back to a litigant who clearly demonstrates such an excusable mistake, inadvertence, accident or error. Such an exercise of discretion would be wrong principle...The answer to that weighty matter was not to advise the appellant of the recourse open to it as the learned magistrate did here. In doing so she drove the appellant out of the seat of justice empty handed when it had what it might have well amounted to an excusable mistake visited upon the appellant by its advocate”.
7. In Branco Arabe Espanol vs. Bank of Uganda [1999] 2 EA 22, Oder, JSC stated:
“The administration of justice should normally require that the substance of all disputes should be investigated and decided on their merits, and that errors, lapses should not necessarily debar a litigant from the pursuit of his rights and unless a lack of adherence to rules renders the appeal process difficult and inoperative, it would seem that the main purpose of litigation, namely the hearing and determination of disputes, should be fostered rather than hindered”.
8. In this era of technology, I take judicial notice of the fact that with technological gadgets can be unreliable and susceptible to technical malfunction and there is a high probability that the Applicant’s Advocate may have faced audio challenges during the Virtual Court session. The dismissal of the defendant’s/Applicant’s application was attributable to mistakes of it’s advocates and the same ought not to be visited upon it.
9. Time and again the Courts have held that mistakes of advocates ought not be visited on their clients. In the celebrated case of Philip Chemwolo & Another v. Augustine Kubede [1982-1988] KAR 103 at 104, Apaloo J.A stated:-
“Blunders will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case heard on merit. I think the broad equity approach to this matter is that unless there is fraud or intention to overreach, there is no error or default that cannot be put right by payment of costs. The court as is often said exists for the purpose of deciding the rights of the parties and not the purpose of imposing discipline.”
10. Under Article 50 (1) of the Constitution, every party has a right to be heard and the fundamental duty of the court is to ensure that the parties that are seeking justice can access justice by being accorded such opportunity to be heard.
11. For justice to be done to a party, the Court needs to ensure that an excusable mistake does not consign the affected party’s case to oblivion irrespective of its merits. The Court is obliged to consider all the surrounding circumstances before taking the drastic step of shutting the doors of justice upon a litigant therefore driving the litigant out of the seat of justice empty handed.
12. Considering the entire circumstances of the case, I find that it would be an injustice to deny the Applicant herein a chance to present its case. Substantive justice demands that the Applicant be accorded the opportunity to ventilate it’s application and to have the same determined on merit. I therefore allow the application herein and I set aside the orders made on 28th October 2026 and I reinstate the Defendant’s Notice of Motion dated 16th October 2025.
13. Each party shall bear it’s own costs.
Orders accordingly
Delivered, Signed and Dated at Bungoma this 16th day of February 2026.
Mwanaisha.S. Shariff
Judge
In the presence of:
Ms Kebungo for the defendant
Mr Bw’onchiri for the Plaintiff