1.This ruling is on the notice of motion dated 27/2/2023. The motion which is by the Plaintiff is brought under Orders 12 Rule 7, 51 Rule 1 Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act and all other enabling provisions of the law. It seeks the setting aside of the order made on 9/2/2023 dismissing the plaintiff’s suit for his non attendance as well as the non attendance of his counsel.
2.The motion is based on four grounds and is supported by an affidavit sworn by Gorrety A. Otieno, the plaintiff’s counsel, dated 27/2/2023 which has three (3) annexures. In summary, the applicant is saying that his advocate failed to attend court on 9/2/2023 firstly because she was unwell in hospital and secondly because she was not aware of the hearing date which had been taken in her absence on 19/12/2022. He craves to be heard.
3.The motion is opposed by the defendants and the third defendant has sworn a replying affidavit dated 1/3/2023 in which she deposes that the plaintiff has not been keen in prosecuting this case and he has no explanation to give for his counsel’s absence on 19/12/2022 since the date had been taken by consent on 26/6/2022 in her presence.
4.I have carefully considered the motion in its entirety including the grounds, the affidavits, the annexures and the entire record. Even though the plaintiff is not convincing on his counsel’s failure to appear in court on 19/12/2022 since the date had been taken by consent in her presence and has also not come clean on the issue of service of the hearing notice via email, I find that it is fair and just to allow the motion for two reasons.Firstly, it is not fair to condemn a party unheard for failures that are excusable. The right to be heard is paramount and it is one of the ingredients of a fair hearing as enshrined in Article 50(1) of the Constitution.Secondly, the defendants will not suffer great prejudice and the costs incurred can be recovered from the plaintiff.For the above stated reasons, I allow the motion dated 27/2/2023 on two conditions. The first one is that the plaintiff pays thrown away costs which will be taxed if not agreed.Secondly, the case be concluded in the next one (1) year.It is so ordered.