Analysis and determination
6.Upon evaluating the application, the response thereto and the rival submissions, it is evident that the singular issue for determination is whether the Court should set aside its orders of May 2, 2023, dismissing the claimant’s suit for want of prosecution.
7.The decision on whether the suit should be reinstated for trial is a matter of judicial discretion and rests on the facts of each case. As was stated in the case of Shah vs Mbogo (1979) EA 116, this discretion has to be exercised judiciously and is intended to avoid injustice or hardship resulting from inadvertence or excusable mistake or error it but should not cause injustice to the opposite party. Further, the party seeking the court's favour ought to adduce sufficient and plausible reasons to warrant the court to set aside the order of dismissal and subsequently reinstate the suit.
8.Turning to the instant case, the claimant’s suit was dismissed on May 2, 2023 on account of non-attendance. In entering the order of dismissal, the court noted that the claimant had been served with the hearing notice and since this was her case, she ought to have been at the forefront in prosecuting the same. On this account, the court observed that the claimant had seemingly lost interest in the suit hence the same was dismissed with costs.
9.It is worth pointing out that when the matter was first called out and the claimant’s absence noted, the court placed the file aside and the respondent’s advocate was asked to contact her. The respondent’s Advocate reported back to Court that she had attempted to reach the claimant three times but her phone was off.
10.According to the claimant, her failure to attend court was occasioned by technical hitches in that her phone went off air.
11.Applying the principle established in the case of Shah vs Mbogo (supra), I am persuaded that the reason brought forth by the claimant for her failure to attend Court on May 2, 2023 is plausible.
12.In so finding, the court takes cognizance of the fact that technological challenges are a common phenomenon in the era of virtual court sessions.
13.The court further notes that the claimant moved the Court on May 8, 2023 following the dismissal of her suit on May 2, 2023, hence is a sign of her effort to reach the court and set aside the dismissal orders at the earliest opportunity possible.
14.In light of the foregoing reasons, I find that this is a case that merits the exercise of the court’s discretion in favour of the claimant.
15.What’s more, the court is mindful of the need to serve substantive justice and to give effect to the principle objective of this court.
17.Therefore, and in the interests of justice I am inclined to allow the application dated May 8, 2023. Subsequently, the order of May 2, 2023, dismissing the claimant’s suit in its entirety for non-attendance is hereby set aside and the claim is reinstated.
18.The claimant shall bear the costs arising out of this application.