[2025] KEHC 9334 (KLR)

[2025] KEHC 9334 (KLR)

The court found that the applicant provided a credible explanation for non-attendance, namely counsel's personal emergency involving her mother's illness, and that the absence of supporting affidavits or medical evidence did not render the explanation unworthy of belief. The court held that a bona fide mistake of counsel should not be visited on the client, and that the overriding objective of the law is to achieve substantive justice. The application to set aside the dismissal was made within a reasonable time (20 days), and any prejudice to the respondent could be compensated by costs. Accordingly, the court exercised its discretion to set aside the ex-parte order dismissing the appeal,...

Citation
[2025] KEHC 9334 (KLR)
Parties
Appellant: Jonathan Abayo Abayo; Respondent: Kennedy Odiwuor Onong’o
Court
High Court
Court Station
High Court at Kisumu
Jurisdiction
Kenya
Judgment Date
27 June 2025
Case Number
Civil Appeal E107 of 2024
Procedural Posture
Civil Appeal / Ruling on Application to Set Aside Dismissal and Reinstate Appeal
Outcome
Application allowed; appeal reinstated; costs awarded to respondent.
Judges
A Mabeya
Legal Topics
Setting Aside Ex Parte Orders, Reinstatement of Appeal, Mistake of Counsel, Exercise of Judicial Discretion
Source Language
English
Civil Procedure Setting Aside Ex Parte Orders Reinstatement of Appeal Mistake of Counsel Exercise of Judicial Discretion

Case Brief

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Parties

Jonathan Abayo Abayo

Appellant

Kennedy Odiwuor Onong’o

Respondent

Procedural Posture

Civil Appeal / Ruling on Application to Set Aside Dismissal and Reinstate Appeal

Legal Issues

  1. 1 Whether the applicant has provided sufficient reason for non-attendance leading to dismissal of the appeal.
  2. 2 Whether the court should exercise its discretion to set aside the ex-parte order and reinstate the appeal.
  3. 3 Whether the application to set aside was made without undue delay.

Ratio Decidendi

The court found that the applicant provided a credible explanation for non-attendance, namely counsel's personal emergency involving her mother's illness, and that the absence of supporting affidavits or medical evidence did not render the explanation unworthy of belief. The court held that a bona fide mistake of counsel should not be visited on the client, and that the overriding objective of the law is to achieve substantive justice. The application to set aside the dismissal was made within a reasonable time (20 days), and any prejudice to the respondent could be compensated by costs. Accordingly, the court exercised its discretion to set aside the ex-parte order dismissing the appeal,...

Court Disposition

Application allowed; appeal reinstated; costs awarded to respondent.

Orders

  • The orders made on 1/4/2025 dismissing the appeal are set aside.
  • The appeal is reinstated and shall be heard on its merits.