https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8460

Gumba v Faulu Microfinance & another (Civil Appeal E093 of 2022) [2026] KEHC 8460 (KLR) (12 June 2026) (Ruling) Neutral citation: [2026] KEHC 8460 (KLR) Republic of Kenya In the High Court at Migori Civil Appeal E093 of 2022 ACA Ong’injo, J June 12, 2026 Between Leonard Okumu Gumba Appellant and Faulu Microfinance 1st Respondent Joash Mwaura Ojune 2nd Respondent (Being an appeal from the judgment and decree of Hon. Dickson Onyango (CM) delivered on 4th July 2022 at Migori CMCCC No. 1 of 2022) Ruling 1.The Applicant herein lodged his appeal against the judgment of the trial court and on 18th July 2023 Justice Wendoh delivered a judgment allowing the appeal, The Applicant had the right to appeal against the said judgment within 30 days but he instead opted to file an application for review dated 16th August 2023. In a ruling delivered on 25th April 2024 the application was dismissed for reasons that the Applicant had not satisfied the prerequisites for grant of an order for review as envisaged under Order 45 of the Civil Procedure Rules. 2.By Notice of Motion application dated 25th November, 2025 the Applicant now seeks that the court sets aside the said ruling delivered in respect to application dated 16th August 2023. He also asked that the court awards him costs of the application. 3.The application is premised on the grounds that the Applicant was not aware of the ruling in respect to the application dated 16th August 2023 and he only learnt of it when a ruling was delivered on 25th September 2025 and that he was not serv3d with submissions in respect to the said application. 4.The Applicant also swore an affidavit in supporting of the application dated 10th November 2025 in which he reiterated that the Respondent did not serve him with submissions to his application dated 16th August 2023 and he was thereby prejudiced because he did not have an opportunity to respond to the said submissions. 5.That the court only gave notice of delivery of ruling to the Respondent’s Advocate although his address has always been in court file. That despite the notice being issued to the Respondent’s Advocate there was also no appearance on their part and the file was taken back to the Registry. 6.This application was canvassed by way of written submissions. The Applicant filed submissions dated 16th March 2026. The Respondent filed submissions dated 24th March 2026 to which the Applicant filed a rebuttal/ Response dated 27th March 2026. 7.The power to set aside orders in the Civil Procedure Rules is discretionary and is exercised to achieve justice between parties. 8.The common grounds upon which a court can set aside orders include and are not limited to lack of service or improper service, sufficient cause for non-attendance, mistake, error, inadvertence or excusable mistake; fraud, misrepresentation or concealment of material facts; order made without jurisdiction; violation of the right to fair hearing; discovery of new and important matter; existence of a meritorious defence or arguable case and interests of justice. 9.In exercising the discretion to set aside court orders, the court commonly considers the reason for seeking the orders, the length of delay, whether the Respondent will be prejudiced, whether the Applicant has an arguable case and the overall interest of justice. 10.In the case of Shah V Mbogo it was held that discretion to set aside is intended to avoid injustice resultant from accident, inadvertence or excusable mistake. 11.Similarly in Patel V E.A Cargo Handling Services Ltd, the court held that the discretion is unfettered and aimed at doing justice. 12.In Philip Chemwolo Another V Augustine Kubende it was held that mistakes will occur and should not necessarily shut a litigant out from being heard. 13.Further in CMC Holdings Ltd V Nzioki emphasizes consideration of whether there is a defence on the merits. 14.In the instant case the Applicant has complained that he was not given a notice of a ruling. He has not disclosed how failure to give a notice for delivery of ruling prejudiced him because he had already filed and served his submissions to his application and the court considered the said submissions in coming up with a determination. The Applicant had been heard in the Magistrates Court and what was before the court was an appeal and subsequent applications which have been comprehensively and exhaustively determined. 15.This court therefore finds that the Applicant has not disclosed the purpose which will be served by the setting aside of Hon. Justice Wendoh’s ruling. The Applicant has repeatedly come to this court making applications and seeking orders that this court is no-longer able to grant as the court cannot make orders in vain. If dissatisfied with any of the findings of this court he has the liberty to escalate his claims to the Court of Appeal. 16.The application lacks merit and the same is dismissed with costs to the Respondent. DATED, SIGNED AND DELIVERED AT MIGORI THIS 12th DAY OF JUNE, 2026.HON. ANNE C. A. A. ONG’INJOJUDGEIn The Presence ofVictor – Court AssistantCalvince – Court AssistantApplicant – PresentRespondent -