1. The application that is before me for determination is the one dated 28th October 2022 wherein the applicant seeks ORDERS;
1) spent.
2) THAT this Honourable Court be pleased to set aside the orders of the court \"marking this matter as settled, case closed\"or any such orders emanating from the ruling delivered on the 20th September 2022 be varied or set aside and so reinstate the suit for hearing on merit.
3) THAT the costs of this application be provided for.
2. The application is supported by the affidavit of affidavit of Wangalwa Oundo. It is unopposed.
3. This matter was scheduled for mention on 20th September 2022 when he personally logged in the court’s online portal.Unfortunately when this matter was called out his call was dropped and counsel was unable to participate in the online proceedings. When he accessed the portal record later on, he realized that the outcome of the matter had been marked as case closed.
4. The applicant’s case is that the case is highly contentious and the court should vary the orders of the court issued on 20th September 2022. It is counsel’s case that he has never been instructed by his client to record any orders settling the suit.
5. He argues that the failure of technology was beyond counsel’s control and it will be unfair for the Applicant to suffer because of the technological failure, which they have no control over.
ANALYSIS AND DETERMINATION
6. The decision whether or not to set aside Exparte judgment is discretionary. It is not in doubt that the discretion is intended so to be exercised to avoid injustice and hardship resulting from accident, inadvertence or excusable mistake or error, but is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the course of justice. See Shah vs. Mbogo & Another [1967] EA 116.
7. In Wachira Karani vs. Bildad Wachira (2016) eKLR as was quoted in the case of David Gicheru v Gicheha Farms Limited & another [2020] eKLR the Court held that: -
“The fundamental duty of the Court is to do justice between the parties. It is in turn, fundamental that to that duty, those parties should each be allowed a proper opportunity to put their cases upon the merits of the matter…”
8. In considering whether or not to set aside a judgment, a judge has to consider the matter in the light of all the facts and circumstances both prior and subsequent and of the respective merits of the parties before it would be just and reasonable to set aside or vary the judgment, if necessary, upon terms to be imposed.
9. In the case of LEE G. MUTHOGA V HABIB ZURICH FINANCE (K) LTD & ANOTHER, CIVIL APPLICATION NO. NAI 236 OF 2009, it was held that:
“It’s a widely accepted principle of law that a litigant should not suffer because of his advocate’s oversight.”
In the instant appeal, we are of the view that the appellant should not suffer because of the mistakes of its counsel.”
10. This court is satisfied that the applicant should not suffer as a result of the consequences that followed the failure in the technology.
11. It is my finding that in order to balance scales of justice in a fair form the most appropriate orders to issue for the setting aside of the orders of this unconditionally. This will no doubt promote access to justice.
DISPOSITION;
12. Applicant has not proven its case.
ORDER;
1) The Order issued on 20th September 2022 is set aside.
2) The suit is hereby reinstated.
3) Costs in the cause.
1) spent.
2) THAT this Honourable Court be pleased to set aside the orders of the court \"marking this matter as settled, case closed\"or any such orders emanating from the ruling delivered on the 20th September 2022 be varied or set aside and so reinstate the suit for hearing on merit.
3) THAT the costs of this application be provided for.
2. The application is supported by the affidavit of affidavit of Wangalwa Oundo. It is unopposed.
3. This matter was scheduled for mention on 20th September 2022 when he personally logged in the court’s online portal.Unfortunately when this matter was called out his call was dropped and counsel was unable to participate in the online proceedings. When he accessed the portal record later on, he realized that the outcome of the matter had been marked as case closed.
4. The applicant’s case is that the case is highly contentious and the court should vary the orders of the court issued on 20th September 2022. It is counsel’s case that he has never been instructed by his client to record any orders settling the suit.
5. He argues that the failure of technology was beyond counsel’s control and it will be unfair for the Applicant to suffer because of the technological failure, which they have no control over.
ANALYSIS AND DETERMINATION
6. The decision whether or not to set aside Exparte judgment is discretionary. It is not in doubt that the discretion is intended so to be exercised to avoid injustice and hardship resulting from accident, inadvertence or excusable mistake or error, but is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the course of justice. See Shah vs. Mbogo & Another [1967] EA 116.
7. In Wachira Karani vs. Bildad Wachira (2016) eKLR as was quoted in the case of David Gicheru v Gicheha Farms Limited & another [2020] eKLR the Court held that: -
“The fundamental duty of the Court is to do justice between the parties. It is in turn, fundamental that to that duty, those parties should each be allowed a proper opportunity to put their cases upon the merits of the matter…”
8. In considering whether or not to set aside a judgment, a judge has to consider the matter in the light of all the facts and circumstances both prior and subsequent and of the respective merits of the parties before it would be just and reasonable to set aside or vary the judgment, if necessary, upon terms to be imposed.
9. In the case of LEE G. MUTHOGA V HABIB ZURICH FINANCE (K) LTD & ANOTHER, CIVIL APPLICATION NO. NAI 236 OF 2009, it was held that:
“It’s a widely accepted principle of law that a litigant should not suffer because of his advocate’s oversight.”
In the instant appeal, we are of the view that the appellant should not suffer because of the mistakes of its counsel.”
10. This court is satisfied that the applicant should not suffer as a result of the consequences that followed the failure in the technology.
11. It is my finding that in order to balance scales of justice in a fair form the most appropriate orders to issue for the setting aside of the orders of this unconditionally. This will no doubt promote access to justice.
DISPOSITION;
12. Applicant has not proven its case.
ORDER;
1) The Order issued on 20th September 2022 is set aside.
2) The suit is hereby reinstated.
3) Costs in the cause.