Analysis And Determination
5.Having considered the application, the affidavit in support and against it is my view that the main issues for determination by this court are-:i.Whether this court should set aside the orders made on 9th March 2023 dismissing the applicant’s appeal for non attendance.ii.Whether this court should reinstate the appeal for determination on merit.iii.who should bear the costs.
6.The orders sought are discretionary. Mr. Joel Mutuma’s explanation is that he misdiarized the case hence the dismissal of the appeal for non attendance. The orders for dismissal were made on 9th March 2023 while this application was filed on 27th March 2023. This is a period of 18 days. In my view the application was filed timeously.
7.Counsel for the applicant states that his absence was not deliberate but was due to misdiarizing of the date. In Belinda Murai & others – Vs Amos Wainaina 1978 LLR 2792 (CALL) Madan JA stated-;
8.In an application for reinstatement of a dismissed suit or application, an applicant appeals to the discretion of the court. The court must caution itself not to exercise its discretion in a manner that will result in an injustice. This position is fortified in the case of Richard Ncharpi Leiyagu Vs Independent Electoral Boundaries Commission & 2 others  eKLR, where the court of appeal stated-;
9.The circumstances of this case are sufficient to persuade the court that the non attendance by the applicants or their advocate on the date the appeal was dismissed was not a deliberate attempt to obstruct or delay justice. Accordingly, the applicants should not be denied a hearing.
10.The court has inherent powers to give orders which are necessary to meet the ends of justice. Section 3A Civil Procedure Act provides-;
11.This is further buttressed by Section 1A & 1B of the Civil Procedure Act which provides for overriding objectives of the Act and the duty of the court which is to facilitate the just, expeditious resolution of disputes.
12.The 3rd respondent has opposed this application on the basis that the appellant’s advocate excuse is not excusable as he had not complied with the court’s direction when the matter came up for mention on 9th March 2023. It is my view that the law has elaborately made provisions which cushion the court from leaning on technicalities at the expense of doing justice. The courts will determine disputes on the merits and lean on the principle of natural justice which guide all courts, that is a party in a dispute must be given an opportunity to be heard. From the foregoing, I find that the objection by the 3rd respondent cannot be sustained. This court should therefore exercise its discretion in favor of the applicants.
13.Under Order 12 of the Civil Procedure Rules the court will dismiss an application where a party fails to attend court with full notice of the hearing date. Where a party demonstrates that it was not aware of the hearing date through no guilty of its own, the court will exercise its discretion in favor of the party. Order 12 Rule 7 Civil Procedure Rules provides-;
14.The court has discretion to set aside judgment or order made to avoid ex-parte to avoid injustice or hardship resulting from an accident inadvertence or excusable mistakes see Shah - V- Mbogo & another  EA 116.
15.In Patel Vs E.A Cargo Handling Services Ltd  E.A 75 the court stated that
16.In this matter, there is no denial that there was a blunder as the applicant’s counsel failed to attend court on 9th Mach, 2023 and has claimed that he had misdiarized the mention date. In Philip Chemowolo & another Vs Augustine Kubende  KLR it was stated that -;
17.The applicant’s counsel as I have pointed out has given an explanation for his failure to attend court on the mention date. The respondent will not suffer any prejudice as they will have a chance to challenge the appeal. I have also noted that the application was brought without undue delay. The court has further noted that the record of appeal has been filed.
18.I find that the applicants have shown sufficient cause to warrant this court to set aside the orders made on 9th March 2013 and reinstate the appeal.
19.In conclusion, I order as follows-;i.The order issued by this court on 9th March 2023 is set aside.ii.the appeal is reinstated and shall be heard and determined on merits.iii.The orders made on 18th January, 2023 are reinstated.iv.Costs of the application to abide the outcome of the appeal.