https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9956

Odero v Amolo & Kibanya Advocates (Commercial Case E716 of 2021) [2026] KEHC 9956 (KLR) (Commercial and Tax) (9 July 2026) (Ruling) Neutral citation: [2026] KEHC 9956 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Commercial Case E716 of 2021 BW Murunga, J July 9, 2026 Between Francis Aremo Odero Applicant and Amolo & Kibanya Advocates Respondent Ruling 1.One of the greatest philosophers of our time, Sukuma Bin Ongaro, took a deserved break from his recitatives and warbled a melody to the effect that 'this world, buli omundu akeke' (in this world, everyone has their own – issues). 2.On 9th October 2025, the indisposed Counsel for the Applicant seemingly felt the full force of that lyric amidst the vicissitudes that visited him that morning. 3.His application dated 27th November 2021 was coming up for oral highlighting of the written submissions. The matter was called out for time allocation and was allocated a time slot of 9.30 a.m. 4.It appears that when the matter was called out for the oral highlighting, there was no appearance on the side of the Applicant. The Court proceeded to dismiss the application presumably for non-attendance and want of prosecution, necessitating the application dated 22nd October 2025 for reinstatement of the dismissed application. That is the application now being considered by the Court. 5.Counsel for the Applicant has sworn an Affidavit detailing the reasons for making this application for reinstatement after the application dated 27th November 2021 was dismissed for non-attendance because he failed to orally highlight his written submissions. 6.From the averments in the Affidavit, Counsel had been unwell and he requested a colleague to hold his brief. He had, before that, and out of an abundance of caution, written to the Respondent’s Counsel a short text message over the WhatsApp social media platform informing him of his vicissitudes. 7.He informed the Respondent that the matter was coming up for highlighting of submissions that day but that he had not been feeling well since the beginning of that week. He also notified him that he had requested his colleague to hold brief, with a request that they take a Ruling based on the submissions already filed. He gave an alternative that, should Counsel require to highlight, he was kindly requesting that they take an alternative date for that purpose. 8.That humble request, as it was signed off, was sent at 8.29 a.m. 9.For now, the Applicant implores the Court that the oversight on the part of the Applicant’s Counsel should not be visited upon the Applicant herein. He also averred that there had been no delay in filing the instant application. 10.Finally, he also brings up the Constitution and states that it is in the interest of justice that this application be allowed so as to afford the Applicant a chance to be heard in accordance with the principles of fair hearing as stipulated under Article 50 of the Constitution. 11.The main issue is whether the Applicant has made out a case for reinstatement of the dismissed application. 12.Before answering that question, it is important to state what this application is not. It is not an appeal against, nor a review of, the order made on 9th October 2025. That order was regularly made: when the matter was called out, there was no appearance for the Applicant and no communication of his predicament had reached the Court. 13.What is invoked instead is a different and well-settled jurisdiction: the discretion to set aside an order made in the absence of a party, upon sufficient cause being shown. The Court of Appeal in Peter Nyamu Kabeu v Eliud Karani, Civil Application No. Nai. 293 of 2000, as reiterated in Route 3 Company Limited & another v Nairobi City County & another (Civil Appeal (Application) 188 of 2019) [2025] KECA 315 (KLR), cautioned that in an application for reinstatement, the court is not dealing with the merits or demerits of the application sought to be reinstated, lest it trespass upon the territory of another judge. That caution binds this Court twice over: it must neither prejudge the application sought to be reinstated, nor sit in judgment over the order that dismissed it. 14.The classic statement of the discretion is found in Shah v Mbogo & Another [1967] EA 116, where it was held that the discretion to set aside an ex parte order is:“intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist the person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice.” 15.The inquiry is therefore forward-looking rather than retrospective. As restated in Route 3 Company Limited (supra), the twin considerations are whether sufficient cause has been shown for the non-attendance, and whether the application for reinstatement was made timeously. To these, the Court adds the question of prejudice to the opposite party. 16.A brief word on the setting of this dispute is necessary, not to re-examine the dismissal, but because it explains why Counsel’s absence was an excusable misstep rather than a contumacious disregard of the Court. The place of highlighting of submissions is important to trace, to use a phrase that makes a focal point in this application. 17.Order 42 rule 16 of the Civil Procedure Rules, dealing with appeals, expressly contemplates a party being heard without appearing at all:“(1)Any party to an appeal who does not intend to appear in person or by advocate at the hearing of the appeal may file a declaration in writing to that effect and lodge written submissions of the arguments in support of or in opposition to the appeal, as the case may be and shall, within seven days after lodging the submission serve a copy thereof on the other party or on each other party appearing in person or separately represented.(2)A party who has lodged written submissions under this rule may, with leave of the court, address the court at the hearing of the appeal.” 18.It is thus clear that it is not always mandatory for a party who has lodged written submissions to be heard orally. The Court of Appeal has said as much of the right to be heard generally. In Kenya Revenue Authority v Menginya Salim Murgani [2010] eKLR, it was held:“However, in our view, the fairness of a hearing is not determined solely by its oral nature. It may be conducted through an exchange of letters as happened in the matter before us and we are satisfied that it was a fair hearing.” 19.Therefore, in some instances, hearings can be conducted entirely in writing and that would not be an aberration of justice. 20.For applications before the High Court, the relevant provisions are found in the Practice Directions on Standardization of Practice and Procedures in the High Court, 2021, issued by the Chief Justice in exercise of the powers conferred by Articles 159(2) and 161(2)(a) of the Constitution, section 10 of the Judicature Act, section 81(3) of the Civil Procedure Act, and section 39 of the High Court (Organization and Administration) Act. 21.Direction 18(i) provides that the court will give directions on whether an application should be determined by way of written submissions, while Direction 18(ii) provides that, in the event there is need to highlight the submissions, the court may in its discretion limit the time for highlighting. Direction 34(iii)(d) similarly provides that the court may direct that parties highlight filed submissions, and Direction 24(d) recognizes that a mention may be for the purpose of taking a Ruling date upon the filing of submissions. 22.In the instant case, the Court duly gave directions and elected a hybrid of the written and the oral. Parties were directed to e-mail their written submissions, in Word format and within the prescribed page limits, three clear working days before the date fixed for highlighting, and thereafter to attend at an allotted time to highlight them. The Court exercised its discretion as the Practice Directions contemplate. 23.Highlighting of submissions is thus the infusion of a hybrid written and oral hearing. With virtual hearings, the old divide between the judge’s chambers and the open court has blurred; most judges sit in chambers yet hold an open court with all and sundry invited, and the transcription service on the Microsoft Teams platform means that even what is said orally is reduced to writing. Written and oral submissions are, in that scheme, meant to complement each other rather than duplicate effort. As Bin Ongaro would have it, everyone - and every era - has its own way of doing things. 24.Against that backdrop, I return to the events of the morning in question. Counsel had been unwell since the beginning of the week. He briefed a colleague to hold brief. At 8.29 a.m., an hour before the allotted slot, he texted his counterpart proposing that the Court be asked to render its Ruling on the submissions already filed, or in the alternative that a fresh date be taken. It was his misfortune that his counterpart was also not in Court that day, so the request was never relayed. The Court, for its part, could not have known of this predicament; it acted, quite properly, on what it saw before it, which was an unexplained absence. 25.Was that sufficient cause? I find that it was. This was not the case of an advocate who slept on his brief; it was the case of an advocate who, though indisposed, took steps, imperfect, as human steps often are, to ensure his client’s matter was attended to. The Court of Appeal in Wilson Cheboi Yego v Samuel Kipsang Cheboi [2019] eKLR reinstated an appeal dismissed for non-attendance in comparable circumstances, holding that sufficient reason had been given for counsel's absence. 26.The right to be heard weighs heavily in the same direction. In James Kanyita Nderitu & another v Marios Philotas Ghikas & another [2016] eKLR, the Court of Appeal expressed itself thus:“The right to be heard before an adverse decision is taken against a person is fundamental and permeates our entire justice system.” 27.In the same vein, in Richard Ncharpi Leiyagu v Independent Electoral & Boundaries Commission & 2 others [2013] eKLR, the Court of Appeal held that the right to a hearing has always been a well-protected right in our Constitution and is the cornerstone of the rule of law. 28.The oversight on the part of the Applicant’s Counsel should also not be visited upon the Applicant herein. In Belinda Murai & 9 Others v Amos Wainaina [1979] eKLR, Madan, J.A. memorably stated:“A mistake is a mistake. It is no less a mistake because it is an unfortunate slip… The door of justice is not closed because a mistake has been made by a person of experience who ought to have known better. The court may not forgive or condone it but it ought certainly to do whatever is necessary to rectify it if the interests of justice so dictate.” 29.Apaloo, J.A. put the matter with equal force in Philip Chemwolo & Another v Augustine Kubende [1986] eKLR:“Blunders will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case determined on its merit… The court, as is often said, exists for the purpose of deciding the rights of the parties and not for the purpose of imposing discipline.” 30.I respectfully agree with, and adopt, those holdings. 31.On the second consideration, this application was made timeously. It was filed within a fortnight of the dismissal. There is no delay, let alone an inordinate or unexplained one. 32.On prejudice, in Kangethe v Nkirote (Environment & Land Case E012 of 2022) [2024] KEELC 5191 (KLR), where the applicant similarly sought reinstatement of an application dismissed for non-attendance, the court aptly stated:“Accordingly, the court would be interested in finding out the plaintiff's explanation for not attending court and whether any prejudice will be suffered by either the plaintiff or the defendant should the exparte orders be set aside and the application reinstated for hearing and disposal on the merits.” 33.The Applicant has explained himself and the explanation is satisfactory. The Respondent, on the other hand, has not opposed the application and has therefore not established any prejudice it stands to suffer. Any conceivable inconvenience is of the kind ordinarily compensable by an award of costs. 34.Refusing reinstatement, by contrast, would visit upon the Applicant the drastic and draconian consequence of being driven from the seat of justice unheard, an outcome the courts have consistently said should be employed sparingly. The scales tilt decidedly one way. As the Court of Appeal held in CMC Holdings Limited v James Mumo Nzioki [2004] 1 KLR 173, on the exercise of this very discretion:“In law, the discretion that a court of law has, in deciding whether or not to set aside ex parte order… was meant to ensure that a litigant does not suffer injustice or hardship as a result of among other things an excusable mistake or error. It would… not be proper use of such a discretion if the court turns its back to a litigant who clearly demonstrates such an excusable mistake, inadvertence, accident or error. Such an exercise of discretion would in our mind be wrong in principle.” 35.Having weighed the sufficiency of the cause shown, the promptness of the application, and the absence of prejudice, I find that the Applicant has made out a case for reinstatement. He was indisposed; he wrote to opposing Counsel informing him of this; he asked another Counsel to hold his brief; both the Counsel asked to hold brief and the opposing Counsel were absent when the matter was called out – it was a series of unfortunate events. He timeously filed for reinstatement. 36.The final deductions of this Court are as follows:(a)The application dated 22nd October 2025 is allowed, and the application dated 27th November 2021 is hereby reinstated for hearing and disposal on the merits.(b)With the status quo ante restored, parties shall take directions on the disposal of the reinstated application.(c)Costs of this application shall be in the cause. DATED AND DELIVERED VIA MICROSOFT TEAMS AT NAIROBI THIS 9TH DAY OF JULY, 2026.BENARD WAFULA MURUNGAJUDGEDelivered on virtual platform in the presence of:Okumu Kubai for the ApplicantAmolo Kibanya for the RespondentKevin Babu – Court Assistant