1.This is the notice of motion dated 3rd March 2022 brought under sections 1A, 1B and 3 of the Civil Procedure Act cap 21 of the Laws of Kenya, order 45 rule 1 and 2 of the Civil Procedure Rules 2010, Article 159 (2) (d) of the Constitution and all other enabling provisions of the law.
2.It seeks orders:-
2.That the court be pleased to reinstate the Appellants’ case and the memorandum of appeal and the application under certificate of urgency both dated the 24th February 2022 and filed on 25th February 2022 be deemed to be filed within time.
3.That the order made on 28th February 2022 be set aside or be reviewed and varied and substituted with new orders on such terms as the honorable court may deem fair and just.
4.That the application for stay of execution dated the 24th of February 2022 be set for exparte hearing together with the instant application.
5.That costs of this application be in the cause.
3.The grounds are on the face of the application and are:-a.The Appellants filed their Memorandum of Appeal and an application to stay of execution both dated 24th February 2022 on 25th February 2022.b.That counsel for the Appellants was having issues with filing on the judiciary online portal and he inadvertently failed to attach all the documents when filing though he was billed and paid for the same on 25th February 2022.c.The counsel for the Appellants served the Respondent’s counsel Osiemo Wanyonyi & Co. Advocates via email firstname.lastname@example.org on the 25th February 2022 with the pleadings as filed. Osiemo Wanyonyi & Co. Advocates brought to the attention of the counsel of the Appellants, the fact that only one page of the memorandum attached when they were served on email on 1st March 2022. The Respondent’s counsel was duly served afresh with the Memorandum of Appeal and the application for stay aforesaid.d.The failure to attach all the pages of the pleadings to with the Memorandum of Appeal and the Application for stay of execution both dated 24th February 2022 and filed on 25th February 2022 was therefore inadvertent and is regretted and we urge the court to consider the Appeal and the application as having been filed in time.e.We therefore urge the court to duly reinstate the suit and allow the orders prayed herein as prayed there being no inordinate delay in filing the instant application.f.The Respondents will not suffer any prejudice if the instant application is allowed.
4.The application is supported by the affidavit of S. N. Gacoya, Advocate for the Applicants sworn on the 3rd March 2022.
5.The application is opposed. There are grounds of opposition filed by the Respondent.
6.The 1st Interested Party did not file any response.
7.On the 23rd March 2022, the court with the consent of the parties directed that the Notice of Motion be canvassed by way of written submissions.
The Applicant’s Submissions
8.They are dated 5th march 2022. They raise two issues for determination:-a.Whether the Applicants has made out his case for the court to vary, set aside and interfere with its orders of the 28th of February 2022?b.Who should bear the costs of this application?
9.Counsel submits that failure to attach all pages of the pleadings when he filed the Memorandum of Appeal and the application dated 24th February 2022 through the online filing portal was inadvertent and unintended.
10.He urges the court to review the orders of 28th February 2022 and allow the instant application. The mistake of counsel ought not be visited on the client. He has put forward the cases of Tana & Arthi Rivers Development Authority vs Jeremiah Kimigho Mwakio & 3 Others  eKLR; Philip Chemwolo & Another vs Augustine Kubede [1982-88] KAR 103 at 1040; Belinda Murai & Others vs Amos Wainaina  KLR 278; Burhani Decorations & Contractors vs Morning Foods Ltd & Another  eKLR.
11.Counsel urges the court to allow the application and that costs be in the cause.
The Respondent’s Submissions
It is so ordered.
12.They are dated 23rd June 2022. Counsel submits that the pertinent issue for determination is whether the applicants have established any of the grounds set out under order 45 rule 1 of the Civil Procedure Rules.
13.He has put forward the cases of Muyodi vs Industrial and Commercial Development Corporation & Another  1EA 243 where the Court of Appeal described an error apparent on the face of the record.
14.On discovery of new evidence and important matter which was not within the knowledge of the Applicant the Court of Appeal has made a finding in the case of Pancras T. Swai vs Kenya Breweries Ltd  eKLR.
15.Counsel submits that the Applicants have not satisfied the requirements for grant of the orders of review. The Applicants have not demonstrated that they discovered new evidence which was not within their knowledge. He prays that the application be found to be unmeritorious and be dismissed.
16.I have considered the notice of motion and the affidavit in support. I have considered the rival submissions and the authorities cited. The issue for determination is whether this application is merited.
17.In paragraph 4 of the affidavit in support, counsel depones;In paragraph 5 he depones;
18.The above averments have not been controverted.
19.I find that the failure to attach all the documents is an excusable mistake. In the case of Tana & Arthi Rivers Development Authority vs Jeremiah Kimigho Mwakio & 3 Others  eKLR the Court of Appeal held thus:-
20.Similarly, the Court of Appeal decision in Philip Chemwolo & Another vs Augustine Kubede [1982-88] KAR 103 at 1040 Apallo J (as he then was) cited with approval in Richard Ncharpi Leiyagu vs IEBC & 2 Others Nyeri CA 18 of 2013 where it was stated as follows:-
21.In conclusion, I find merit in this application and the same is allowed in the following terms:-a.That the Appellant’s Memorandum of Appeal and the notice of motion dated 24th February 2022 and filed on 25th February 2022 are reinstated and deemed to be filed within time.b.That the orders of 28th February 2022 are hereby set aside.c.Costs be in the cause.