1. Before this Court is the Plaintiffs/Applicants’ Notice of Motion Application dated 11th December 2025, brought under Articles 50(1) and 159(2)(d) of the Constitution of Kenya, Sections 1A, 1B and 3A of the Civil Procedure Act, Order 12 Rule 7 and Order 51 Rule 1 of the Civil Procedure Rules, and all other enabling provisions of the law. The Applicants seek for orders that:
a) This Honourable Court be pleased to set aside the dismissal order made on 8th December 2025, for non – attendance and failure to prosecute, and reinstate the Application dated 3rd October 2025, for hearing on its merits.
b) That upon reinstatement, the application dated 3rd October 2025, be heard and determined expeditiously, and the suit be prosecuted to its just and final determination.
c) Costs of this application be in the cause.
2. The instant application is supported by the Affidavit of ELIZABETH MUTHONI KARANJA, the Advocate who has the conduct of this matter on behalf of the Applicants, sworn on 11th December 2025, and on the grounds as set out on the face of the application:
3. The deponent averred that the Applicants had filed an application dated 3rd October 2025, seeking reinstatement of the suit, which application was scheduled for hearing on 8th December 2025; that although she logged into the virtual court session in good time, she was simultaneously engaged in other court matters, and consequently did not hear the matter being called out; and that as a result, the application was dismissed for non – attendance and failure to prosecute.
4. She further averred that the failure to attend virtual court was neither deliberate nor intended to delay the proceedings, but arose from an inadvertent mistake occasioned by competing court engagements; and that the Applicants remain keen and committed to prosecuting both the application and the substantive suit to their logical conclusion.
5. Further, that unless the dismissal order is set aside, the Applicants stand to suffer grave prejudice since the application will remain unheard, thereby denying them an opportunity to present their case before the Court.
6. The deponent further averred that the dispute concerns family land occupied by, among others, an elderly mother and young children whose security of tenure would be jeopardized if the matter is not heard on its merits.
7. The application was not opposed. No Replying Affidavit or Grounds of opposition were filed by the Respondents despite being afforded an opportunity to do so.
8. The Applicants filed their written submissions dated 23rd March 2026, through Zamura & Co Advocates, and after setting the background of the Application, urged the court to allow the instant application.
9. The Applicants relied on various decided cases among them; Patel vs EA Cargo Handling Services Ltd(1974) EA 75;Shah vs Mbogo ( 1979) EA 116;Kidada & Another vs Mutua ( 2022) KECA 639(KLR; Philip Chemwolo vs Augustine, Kubende (1986)KECA 87(KLR); and urged the Court to allow the instant Application.
10. The Applicants also relied on section 3A of the Civil Procedure Act, and Article 159(2)(d) of the Constitution, which this court has carefully considered together with the written submissions and the court records, and renders itself as follows;
11. Having considered the instant Notice of Motion Application, the Supporting Affidavit and the material on record, the sole issue arising for determination is whether the Applicants have established sufficient cause to warrant the setting aside of the dismissal order made on 8th December 2025, and the reinstatement of the application dated 3rd October 2025.
12. The Court’s jurisdiction to set aside an order dismissing a suit or application for non – attendance is donated by Order 12 Rule 7 of the Civil Procedure Rules, which grants the Court discretion to set aside or vary such orders upon such terms as may be just.
13. The principles governing the exercise of that discretion are well settled. In Shah v Mbogo & Another [1967] EA 116, the Court held that the discretion to set aside an ex parte order is intended to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake, but not to assist a litigant who has deliberately sought to obstruct or delay the course of justice.
14. Similarly, in Patel v E.A. Cargo Handling Services Ltd [1974] EA 75, the Court observed that there are no rigid limits on the exercise of the discretion and that its primary concern is to do justice to the parties.
15. The Court is also guided by the decision in Philip Chemwolo & Another v Augustine Kubende [1982 – 88] KAR 103, where the Court stated that blunders will continue to be made from time to time and that, unless there is fraud or intention to overreach, errors should not ordinarily deny a party an opportunity to have his case determined on the merits.
16. In the present case, the explanation advanced by counsel for the Applicants is that she had logged into the virtual court session, but failed to hear the matter being called out because she was simultaneously engaged in other courts. The Court has no reason to doubt that explanation. There is nothing on the record to suggest that the Applicants deliberately absented themselves from the proceedings or intended to delay the determination of the matter.
17. The Court further notes that the application is not opposed. The Respondents did not file any response challenging either the explanation tendered by the Applicants or the reliefs sought. Consequently, there is no evidence before the Court demonstrating that reinstatement of the application would occasion any prejudice incapable of being compensated by an appropriate order as to costs.
18. On the other hand, declining the application would have the effect of shutting out the Applicants from being heard on an application relating to a land dispute, a subject that implicates proprietary rights and ought, where possible, to be determined on its merits. Courts have consistently held that disputes should, as far as practicable, be resolved on their substantive merits rather than on procedural lapses, particularly where the default has been satisfactorily explained. See the case of D.T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & Another[1980] eKLR.
19. The court is invited by Article 50(1) of the Constitution to uphold every person’s right to a fair hearing and by Article 159(2)(d) to administer justice without undue regard to procedural technicalities. These constitutional imperatives, together with the overriding objective under Sections 1A and 1B of the Civil Procedure Act, favour determination of disputes on their merits whenever justice so demands.
20. Having carefully considered the circumstances surrounding the dismissal, the explanation offered by counsel, the absence of opposition to the application, and the interests of substantive justice, the Court is satisfied that the Applicants have demonstrated sufficient cause to warrant the exercise of this Court’s discretion in their favour.
21. Accordingly, the Notice of Motion Application dated 11th December 2025, is merited and is hereby allowed entirely with costs being in the cause.
22. Consequently, the Court makes the following orders:
a. The dismissal order made on 8th December 2025, dismissing the application dated 3rd October 2025, for non – attendance and failure to prosecute is hereby set aside.
b. The application dated 3rd October 2025, is hereby reinstated for hearing and determination on its merits.
c. The Respondent shall file their response to the Application dated 3rd October 2025, within a period of 14 Days from the date hereof.
d. Leave is granted to the Applicant to file a further Affidavit if need be.
e. Thereafter the Application dated 3rd October 2025 shall be canvassed by way of written submissions. Each party will have 14 days.
f. Mention before the Deputy Registrar of this court on 29th July 2026, to confirm compliance.
g. Costs of the application shall be in the cause.
It is so ordered.
Dated, Signed and Delivered Virtually at Narok this 29th Day of June 2026.
L. GACHERU
JUDGE.
Delivered online in the presence of:
Elijah Meyoki – Court Assistant
N/A for the Applicants.
Mr. Maritim for the Respondents.
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