1.The Application is premised on the dismissal of the suit due to non-attendance of the Plaintiff on 12th May 2022. The Plaintiff moved the Court vide a Notice of Motion dated 16th May 2022 and a Supporting Affidavit sworn by Purity Njoki Mwangi the Plaintiff herein
2.In respect to the said Application, the Plaintiff sought the following orders:
3.The Application was opposed by the 1st, 2nd and 3rd Defendants through an affidavit sworn by John Mwangi Matindi the 1st Defendant herein on 8th July 2022.
4.Pursuant to the directions issued by this Court, it was directed that the Application be canvassed by way of written submissions. Plaintiff filed her written submissions dated 24th August 2022 while the 1st, 2nd 3rd and 4th Defendants did not file any written submissions.
5.Counsel for the Plaintiff submitted that on the said hearing the Plaintiff was already in open court and was ready to proceed with the hearing and further that she was not aware that the matter would be mentioned virtually before allocation of time. Owing to these circumstances and this being a suit involving land, she urged the Court to reinstate the same and allow the matter to be heard on merit.
6.Through an affidavit sworn by the 1st Defendant, it was deposed that the Plaintiff ought to have been aware that matters are usually mentioned virtually before the time allocation is set. It was also averred that the court had granted a last adjournment on 15th February 2022 and hence therefore the Plaintiff ought to have been diligent enough and made effort to attend court on 12th May 2022. The 1st Defendant urged the court to dismiss the application and decline any attempts to reinstate the suit.
7.I have carefully considered the application as presented and the written submissions filed by the Plaintiff together with the Replying Affidavit filed on behalf of the 1st, 2nd and 3rd Defendants. In my view, the only issue for determination is whether the plaintiff has satisfied this court to move it to reinstate the suit.
8.The Court is guided by Order 12 Rule 7 of the Civil Procedure Rules which expressly provides as follows:
9.The test for consideration for reinstatement of a suit that has been dismissed for non attendance is whether the Plaintiff or the Defendant will be prejudiced by reinstatement of the suit.
10.The Court of Appeal in Tana and Athi Rivers Development Authority v Jeremiah Kimigho Mwakio & 3 others  eKLR considered the duty that advocates owe to the court:
11.I have considered that by filing the reinstatement application, the Plaintiff moved with haste to correct her inadvertent error. Should this error or blunder by the advocate be visited upon the client? The courts have adopted an equitable approach in addressing this issue. In the case of Philip Chemwolo & another vs Augustine Kubede (1982-1988) KAR 103, Apaloo posited as follows:
12.In Belinda Murai & 9 others vs Amos Wainaina (1979) eKLR, the court pronounced itself on the consequences of a mistake of an advocate as follows:
13.I have considered the Plaintiff’s assertion that the suit was dismissed during the virtual call over for allocation of the time for hearing of the main suit and yet she was already waiting to proceed in open court. In my view, the Defendants have not demonstrated what prejudice they will suffer should the suit be reinstated. I will give the Plaintiff a benefit of doubt to the effect that she was already in open court and was eager to prosecute her case when the same was dismissed.
14.For this reason, the Court so orders that:
15.It is so ordered.