1. On 27/05/2025, the Appellant herein Notice of Motion under Article 48,50(1) and 159 of the Constitution, Order 51 of the Civil Procedure Rules, Sections 1A and 3A of the Civil Procedure Act, and all other enabling provisions of the law. In the application, the Appellant sought the following substantive orders;-
(a) That this Honourable Court be pleased to arrest the judgment scheduled for delivery on 29th May 2025.
(b) That this Honourable Court do allow the Applicant to file their submissions out of time and grant a date for highlighting.
(c) The this Honourable Court be pleased to give any further orders on the interest of justice.
(d) That the costs of this application be provided.
2. The application is based on the grounds of the face of the application and is supported by the affidavit of Wahome Njagi, the Appellant’s Counsel on record. The main ground being that the Advocate inadvertently failed to diarise and attend court on 25th February 2025 when the matter was scheduled for hearing/highlighting of submissions.
3. The Applicant/Appellant, therefore, urged the court to allow the application, arrest the delivery of the judgment, and allow the Appellant time to file its submissions, and consequently allocate a date for highlighting of the submissions.
4. When the matter came up for inter partes hearing on 28th May 2025, the Appellant reiterated the issues raised in the application and prayed that the application be allowed as prayed.
5. The Respondent did not oppose the application. Ms. Marren Masai – Advocate who appeared on behalf of the Respondent, indicated to Court that her client is willing to abide by the Court’s decision. No pleadings were filed on behalf of the Respondent.
6. I have carefully considered the application and the supporting affidavit. I have also perused the record and established that when this matter came up in court on 3rd October 2024, the Court gave directions that the Appellant was to file its submissions within 14 days from that date. The Respondent was to file its submissions within 3 days after service with the Appellant’s submissions. A date of 11th November 2024 was given for the highlighting of submissions.
7. On 11th November 2024, when the matter came up for highlighting of submissions, Mr. Wahome who was present in court had not filed the submissions. Counsel informed court that he had not filed the submissions within the timelines earlier directed by the court on account of having been indisposed. He sought a further period of 7 days, which the Court duly granted. Highlighting of submissions was consequently adjourned to 25th February 2025.
8. On 25th February 2025, when the matter came up for hearing in Court, the Appellant’s Counsel was not present in court, neither had he filed any submissions on behalf of the Appellant. The Respondent had, however, filed their submissions. Consequently, the Court gave a judgment date of 29th May 2025. It is this judgment date that the Appellant now wants to be vacated, and that they be allowed a further period to file their submissions.
9. From the record, I note that while the Appellant, while the Appellant has in the instant application pegged its application on having misdiarised the hearing date, the Advocate has not attached a copy of the diary indicating the misdiarization neither has he provided any explanation for the failure to file submissions, despite the court’s directions of 3rd October 2024 and 11th November 2025.
10. The above notwithstanding, and in the interest of justice, the Appellant is, however, granted leave to file its submissions not later than 1600hrs, today, 28th May 2025. The prayer for the arrest of judgment is, however, declined.
11. In the premises, I find the Appellant’s application dated 27th May 2025 partially successful. Accordingly, I order and direct as follows:
i. The Appellant to file its submissions by 1600hrs, today, 28th May 2025, failure to which the judgment will be delivered based solely on the Respondent’s submissions and pleadings already on record.
ii. The Judgment date of 29th May 2025 is hereby maintained.
iii. Costs be in the cause.
12. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT
THIS 28TH DAY OF MAY 2025
ADO MOSES
JUDGE
In the presence of:
Moses – Court Assistant.
Wahome …………….for the Appellant/Applicant
Ms. Masai…………….for the Responden t
(a) That this Honourable Court be pleased to arrest the judgment scheduled for delivery on 29th May 2025.
(b) That this Honourable Court do allow the Applicant to file their submissions out of time and grant a date for highlighting.
(c) The this Honourable Court be pleased to give any further orders on the interest of justice.
(d) That the costs of this application be provided.
2. The application is based on the grounds of the face of the application and is supported by the affidavit of Wahome Njagi, the Appellant’s Counsel on record. The main ground being that the Advocate inadvertently failed to diarise and attend court on 25th February 2025 when the matter was scheduled for hearing/highlighting of submissions.
3. The Applicant/Appellant, therefore, urged the court to allow the application, arrest the delivery of the judgment, and allow the Appellant time to file its submissions, and consequently allocate a date for highlighting of the submissions.
4. When the matter came up for inter partes hearing on 28th May 2025, the Appellant reiterated the issues raised in the application and prayed that the application be allowed as prayed.
5. The Respondent did not oppose the application. Ms. Marren Masai – Advocate who appeared on behalf of the Respondent, indicated to Court that her client is willing to abide by the Court’s decision. No pleadings were filed on behalf of the Respondent.
6. I have carefully considered the application and the supporting affidavit. I have also perused the record and established that when this matter came up in court on 3rd October 2024, the Court gave directions that the Appellant was to file its submissions within 14 days from that date. The Respondent was to file its submissions within 3 days after service with the Appellant’s submissions. A date of 11th November 2024 was given for the highlighting of submissions.
7. On 11th November 2024, when the matter came up for highlighting of submissions, Mr. Wahome who was present in court had not filed the submissions. Counsel informed court that he had not filed the submissions within the timelines earlier directed by the court on account of having been indisposed. He sought a further period of 7 days, which the Court duly granted. Highlighting of submissions was consequently adjourned to 25th February 2025.
8. On 25th February 2025, when the matter came up for hearing in Court, the Appellant’s Counsel was not present in court, neither had he filed any submissions on behalf of the Appellant. The Respondent had, however, filed their submissions. Consequently, the Court gave a judgment date of 29th May 2025. It is this judgment date that the Appellant now wants to be vacated, and that they be allowed a further period to file their submissions.
9. From the record, I note that while the Appellant, while the Appellant has in the instant application pegged its application on having misdiarised the hearing date, the Advocate has not attached a copy of the diary indicating the misdiarization neither has he provided any explanation for the failure to file submissions, despite the court’s directions of 3rd October 2024 and 11th November 2025.
10. The above notwithstanding, and in the interest of justice, the Appellant is, however, granted leave to file its submissions not later than 1600hrs, today, 28th May 2025. The prayer for the arrest of judgment is, however, declined.
11. In the premises, I find the Appellant’s application dated 27th May 2025 partially successful. Accordingly, I order and direct as follows:
i. The Appellant to file its submissions by 1600hrs, today, 28th May 2025, failure to which the judgment will be delivered based solely on the Respondent’s submissions and pleadings already on record.
ii. The Judgment date of 29th May 2025 is hereby maintained.
iii. Costs be in the cause.
12. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT
THIS 28TH DAY OF MAY 2025
ADO MOSES
JUDGE
In the presence of:
Moses – Court Assistant.
Wahome …………….for the Appellant/Applicant
Ms. Masai…………….for the Responden t