Issue, Analysis And Determination
5.I have considered the Application and the law regarding setting aside of orders made in absence of parties. First of all, it should be clear that the orders of 25/07/2023 did not constitute the dismissal of the instant suit. Therefore, the ground of the application that the suit be reinstated is misplaced. Such are the simple errors that arise from careless drafting and can cost a client a good application or suit. Learned counsel will do well to be cautious next time.
6.The above notwithstanding, the court is of the view that only two issues commend for consideration herein. These are whether the application merits being granted and who to bear the costs thereof.
7.Regarding the first issue, it is not disputed that on 25/07/2023 an Application dated 10/03/2023 filed by the Interested Parties was due for hearing virtually. The hearing date had been fixed by the Court on 03/07/2023 in the presence of learned counsel for the Applicants and the Defendants but in absence of that for the Plaintiff.
8.On the material date, only learned counsel for the Plaintiff attended court virtually, and for reason of non-attendance on the part of the Applicants and there having been no explanation given for that, this Court dismissed the Application with costs to the Respondents. It is worth noting that it is not the obligation of the court to inquire into why a party has failed to attend the session at the appointed time and place as long as the party has due notice. For this, the decision in Solomon Ouko Onyango v Amedo Centre (K) LTD.  EKLR is instructive.
9.However, if an order has been given to the detriment or dissatisfaction of the party absent from the proceedings, under Order 12 Rule 7 of the Civil Procedure Rules, 2010, the court can may on an application by such a party set aside set aside its order or reinstate a suit or application. But that is left to the discretion of the Court which may set such terms as it may deem just.
10.Be that as it may, the Applicant has the obligation to explain to the satisfaction of the Court the failure to attend. It is not automatic that for reason of the other parties being absent, disinterested or not opposed to the application it must be granted. In John Nahashon Mwangi –vs- Kenya Finance Bank Limited (in Liquidation) [2015 eKLR, the court laid down the tests to apply in an application for reinstatement of a suit or application. They are that the grounds upon which the application is brought are reasonable, the prejudice to be occasioned to the adverse party if reinstatement is granted is a factor, and the prejudice the Applicant would suffer if the suit or application is not reinstated.
11.In the instant application, on the one hand, the Applicants argue that they would be driven from the seat of justice if the application is not granted. They also state that the mistake on their part to attend court was of learned counsel and not the clients’. On the other hand, the Respondents do not seem to be bothered as to whether or not the application is granted. That is demonstrated by the fact that they neither opposed the application nor argued it. Instead, they left it to the court to determine. It means that they see no prejudice to be suffered if the same is granted. The applicants having passed the two tests, it is left of the Court to consider the third one.
12.Are the grounds for the Application reasonable? The Applicants argued that learned counsel for them experienced network problems and internet breakdown when trying to log into the virtual session. Of itself without deeper interrogation the reason given for failure to attend court sounds reasonable. But alas! If it is not properly analyzed, to permit parties to rely on failure to log into the virtual session on account of poor network or internet failure only would open a pandoras box and grant every and all lazy and even parties who do not bother about their matters progressing or not to always walk into court rooms and wave the reason, “my Lord” or “your honour, blame the internet!” It would not auger well for practice.
13.Even where there is failure of the internet or anticipated network failure, the parties are under obligation to inform the Court as soon as practicable that they are in a problem and unable to log into the virtual session. They do this through calling other colleagues who can have stronger internet to log into the court session and hold brief or inform the court otherwise. They cannot sit back and wait for another day to move the court to set aside proceedings. Moreover, the party has to use technology to demonstrate to the Court that indeed they attempted to log into the court session but failed. For instance, they need to demonstrate through internet logs that they indeed tried to log into the session but failed.
14.In any event, virtual courts are the same as physical ones save that the virtual ones are only technology-assisted. The practice in them should not be demeaned and the failure of technology in the process should be demystified. The Rules require that parties test their gadgets at least fifteen minutes before the virtual court session to confirm whether their gadgets and internet are working and stable respectively. The Applicants did not demonstrate that learned counsel did any of that and to their disappointment he could not log into the virtual session. The applicants and any other party who may attempt in future to rely on the failure of internet to attend a virtual court session should bear in mind and know that it is not enough to make a mere allegation failure. There has to be a clear demonstration that they actually ‘knocked at the door of the (virtual) court’ but could not be permitted to enter.
15.This court could have dismissed the Application herein on account of the failure by the applicants to shown to the satisfaction of the court that they indeed tried to log into the session but they were unable to for internet failure but the Respondents cared not to oppose the application. The upshot is that the application is allowed but on condition that the Applicants pay to the Respondents costs and attend the registry within the next two weeks of this order to take a hearing date on the application dated 10/03/2023, in default of which the same will stand dismissed.