https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/400

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATE’S COURT AT NAKURU** **MISC. CIVIL CAUSE NO. E42 OF 2021** **BETWEEN** **CATHRINE CHEPKEMOI………………….…………………………………………. PLAINTIFF *VS*** **COUNTY GOVERNMENT OF NAKURU……………………………………RESPONDENT** **RULING** 1. Before this court is an APPLICATION FOR REINSTATEMENT by the applicant dated 3rd September 2025 that seeks the dismissal order dated 13th March 2024 be set aside and the miscellaneous application be reinstated for hearing and determination on merit on the following grounds 1. THAT the applicant lodged Miscellaneous application no E242 OF 2021 on 10th December,2021 seeking to enforce the directors award arising from injuries sustained by the applicant during course of employment. 2. THAT the applicant attended court on 26th January before honourable Kefa, but unfortunately their matter did not proceed. Further the court did not provide directions on how to proceed. 3. THAT since then the applicant has made visits to the Court registry, inquiring about the matter and requesting a hearing date and also written severally to the registry. 4. THAT the applicant has come to learn of the dismissal after the effort in her absence without her knowledge. 5. THAT it is only fair in the interest of justice and as it is enshrined constitutionally under the much-cherished canons of justice, the dismissal order be set aside and the matter set for hearing inter partes 2.The applicant herein has a claim of being unaware of the hearing dates that were set by the court. The applicant also states in the aforesaid grounds for application as to have visited the registry severally and written for request of hearing dates. 3.The application is brought under Order 12 Rule 7 of the Civil Procedure Rules, which empowers the Court to set aside an order of dismissal and reinstate a suit upon such terms as may be just. Order 12 Rule 7 provides: ‘*Where under this Order judgment has been entered or the suit has been dismissed, the court, on application, may set aside or vary the judgment or order upon such terms as may be just.*’ 4.The principles governing the exercise of that discretion are well settled. In the famous ***Shah v Mbogo, [1967] EA 116 at 123B*** Harris J. stated: *This discretion is intended so to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist a person who has deliberately sought, whether by evasionn otherwise, to obstruct or delay the course of justice*. 5.The Court has considered the explanation tendered for the Applicant's non-attendance, the period of delay, and the prejudice likely to be suffered by the parties. I am satisfied that the failure to attend court was sufficiently explained and there is no evidence that the Applicant deliberately sought to obstruct or delay the course of justice. 6.Guided by the foregoing principles and bearing in mind the need to determine disputes on their merits, I find that this is a proper case for the exercise of the Court's discretion in favour of the Applicant. The application is therefore allowed. The order dismissing the suit is hereby set aside and the suit is reinstated for hearing on the merits. Costs shall be in the cause. **DATED, SIGNED AND DELIVERED VURTUALLY AT NAKURU ON THIS…30th …….... DAY OF…July. 2026** **HON. ALOYCE-PETER- NDEGE** **SENIOR PRINCIPAL MAGISTRATE** **In the presence of;** **Applicant’s Counsel: n/a** **Respondent’s Counsel: n/a** **Applicant: n/a**