1. Vide a Notice of Motion dated 20/6/2025 the plaintiff seeks for orders that the plaintiffs suit be reinstated. The application is premised on the grounds that;-
a) The failure to attend Court on the 16th June 2025 was due to inadvertence and a confusion of the dates for this matter and a related one pending execution proceedings in KISUMU ELC No. 74 of 2016.
b) The date of the 16th of June 2025 was essentially a mention date to confirm whether the Defendant had complied with an order of Court that granted him time to file his defence. By the time the matter came before Court the Defendant had filed his defence and Counterclaim but was yet to serve the Plaintiff with either. Pleadings were therefore yet to close on both the Plaint and the Counterclaim.
c) The initial communication sent on the 18th of June 2025 from the Court regarding the proceedings of the 16th of June suggested that the matter was scheduled for another mention and the Plaintiff''s Advocates only learnt that it had been struck on the 19th of June 2025.
d) The order of striking out the suit has ended up shutting out the Plaintiff from stating his case before the Court.
e) The present application has been made without delay.
f) The Plaintiff has a strong case on the merits which has even been admitted by the Defendant.
g) The defence does not stand to suffer any undue loss as they have admitted the Plaintiff''s case save for the question of the quantum of damages payable and he has also filed a counterclaim in this same suit which means that the matter is still to be in Court until the counterclaim is determined.
h) It is in the broader interest of justice that the matter be heard and a determination be made on the merits rather than the summary procedure of striking out.
i) The Plaintiff has always been ready to prosecute his suit and the delay in taking off to date has been occasioned initially by the proceedings that were pending in KISUMU ELC No. 74 of 2016 and lately by the failure of the Defendant to file his Defence.
j) The Plaintiff is ready to abide by all conditions that the Honourable Court will impose for reinstating his suit including orders as to expeditious disposal thereof.
2. The application is further supported by the affidavit sworn by Ms. Juliet Akinyi Dima Advocate for the Plaintiff in the present proceedings. In her affidavit counsel outlines the history of the matter and its nexus to KISUMU ELC No. 74 of 2016 and the subsequent stay of the proceedings in this matter on 10th of March 2022 awaiting the outcome of the judgement in KISUMU ELC No. 74 of 2016.
3. It is deponed the orders of stay were made in the context that the hearing and determination of the Plaintiff''s suit should abide the outcome of KISUMU ELC No. 74of 2016 since the issue of title to land parcel number NORTH GEM/ MALUNGA /571 was central to the determination of the question of whether the Defendant herein was guilty of trespass as sued and that issue was pending determination in that Court at least in so far as the portion of the land parcel in contention between the parties herein is concerned. That the present suit was kept in mention mode for several sittings subsequent thereto upto the 28th of January 2025 when the Court was informed the judgement in Kisumu had affirmed the Plaintiff''s rights of proprietorship over the suit Land. The Defendant had not filed his defence his request to file one was allowed. That the defendant was also given time to consult on how best he would proceed. That two mentions followed on the 12th of February, 11th of March and 1st of April 2025 in that regard.
4. Counsel depones that she did not attend Court for the mention of 27th May 2025 but she later learnt from the CTS that the Defendant was granted leave to file and serve his defence on that day. That a further mention date was set for the 16th of June 2025.
5. It is averred that the deponent also represents the Plaintiff herein in KISUMU ELC NO74 of 2016 which is now at the execution stage for the decree holders costs whereby the current defendant was scheduled to show cause on the 12th of June 2025 why he should not be committed to civil jail for failing to pay the said costs. A copy of an extract of counsels diary for the said date of 12th June 2025 is annexed. That Instead of diarizing the 16th of June 2025 as the mention date in the present matter counsel inadvertently entered the date of 18th June 2025. A copy of the deponents diary for the said date of 18th June 2025 is annexed.
6. It is deponed that on the said 18th of June 2025 counsel logged onto the Court Virtual Platform and patiently waited for the Court to call this matter out until it ran its cause list. Later the same day at around 14.38 Hrs counsel received an SMS from the judiciary portal that ''Mention Activity has been updated for the case ELCC/E002/2022. That she verily believed that the message was a report of the last activity involving the file in Court which she believed to have taken place on that very 18th of June 2025. A screen shot of the said message is annexed.
7. It is deponed that on 19th of June 2025 counsel was surprised to receive a message from CTS that case ELCC/E002/2022 had been Terminated/ Struck out/ Dismissed. The screen shot is annexed.
8. It is averred that upon checking the Court CTS counsel noticed that Defendant filed a defence and counterclaim on 12th June 2025 which he is yet to serve to date. A copy is annexed. That the Plaintiff''s suit was struck out on 16th June 2025. That she has not been able to establish from the face of the order why the suit was struck out on a date which was for mention to confirm the filing of the Defendant''s defence. That upon notifying the plaintiff of the developments, the plaintiff instructed counsel to file the present application for reinstatement of the suit.
9. The application is not opposed despite service. A copy of the Affidavit of service sworn by Cosmas Oyoo Laja filed on 25th June 2025 is on record.
10. On 14/7/2025 I issued directions on disposal of the application on merit and directed the applicant to file submissions and reserved a date for ruling. The applicant complied and filed submissions on 30/7/2025.
ANALYSIS AND DETERMINATION
11. I have considered the foregoing and the submissions filed, the main issue for determination is whether the plaintiff’s suit should be reinstated.
12. The law on setting aside of ex parte orders is found under Order 12, rule 7 of the Civil Procedure Rules, 2010 which provides thus:
“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.”
13. The power donated to the court to set aside is therefore discretionary.
14. In the case of Shah Vs. Mbogo & Another (1967) EA 116 referred to by the applicants , the court outlined guidelines for consideration in exercising the discretion and the importance for an applicant to show sufficient cause. Further that the court must aim at avoiding injustice resulting from an accident, inadvertence or excusable mistake or error.
15. Has sufficient cause been demonstrated to warrant the exercise of the courts discretion in favor of the applicant?
16. Briefly the record shows that on 16/6/2025 the present matter was listed before this court for Mention. This date was fixed on 27/05/2025. The purpose of the Mention as recorded on 27/05/2025 was to give further directions in the presence of the plaintiff.
17. On the said 16/6/2025 the defendant attended court in person. Counsel for the Plaintiff did not attend court.
18. The court proceeded to strike out the suit. The court noted that it had perused the judgement dated 19/12/2024 delivered by Justice S. Okong’o and the pleadings filed in the present suit and came to the conclusion that the proceedings in the present suit are overtaken by events. That this court was functus officio in all aspects. Consequently, the court proceeded to strike out the suit and directed that the file be closed.
19. It is imperative to note that the suit was not struck out for non attendance of the plaintiff. However, I must observe that had counsel attended court we would not have found ourselves in the present scenario. I say so because counsel would have had an opportunity to defend the next cause of action after the delivery of judgement in the proceedings at Kisumu.
20. Counsel has deponed that her failure to attend court was due to confusion created by the existence of the other related proceedings in Kisumu which led to mis diarizing the dates. Extracts of the diary have been presented. I think this is excusable. Counsel states that the mistake of Counsel should not be visited upon the client.
21. The question as to whether counsels mistake should be visited upon a client has been a subject of many judicial pronouncements where the courts have been unanimous that where the mistake is excusable then it should and the court must at all times lean on upholding justice. See Belinda Murai & Others Vs Amos Wainaina (1978) KLR 278; Phillp Chemwolo & another Vs Augustine Kubebe (1982-88) KAR
22. But I think of importance is that the provisions Order 12 envisage a matter that has been called out for hearing. It is clear that the matter had been fixed for Mention and not for hearing. It was therefore erroneous for the court to make substantive orders striking out the plaintiff suits. The court was clearly wrong leading to a miscarriage of justice. See Richard Ncharpi Leiyagu vs Independent Electoral Boundaries Commission & 2 Others Civil Appeal No. 18 of 2013 [2013] eKLR).
23. Moreover courts exist to serve substantive justice for all parties to a dispute before it. Both parties deserve justice and their legitimate expectation is that they will each be allowed a proper opportunity to advance their respective cases upon the merits of the matter. This opportunity was not accorded in as far as the striking out of the suit on the basis of the judgement dated 19/12/2024 was concerned. This is the fundamental principle of natural justice as enunciated in Wachira Karani vs. Bildad Wachira Civil Suit No. 101 of 2011 [2016] eKLR.
24. It is for the foregoing reasons that I find that the application dated is merited.
25. The application is allowed. There shall be no orders as to costs.
Orders accordingly
Delivered and Dated at Siaya This 20th Day of November 2025
Ruling delivered virtually through Microsoft teams Video Conferencing Platform in the presence of:
Ms. Atieno for the Plaintiff
No appearance for Respondent
Court Assistant: Ishmael Orwa