https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9265

Mwakio Kirwa & Company Advocates v County Assembly of West Pokot (Judicial Review E001 of 2025) [2026] KEHC 9265 (KLR) (30 June 2026) (Ruling) Neutral citation: [2026] KEHC 9265 (KLR) Republic of Kenya In the High Court at Kapenguria Judicial Review E001 of 2025 RPV Wendoh, J June 30, 2026 Between Mwakio Kirwa & Company Advocates Applicant and The County Assembly of West Pokot Respondent Ruling 1.Before me is the Notice of Motion Dated 29/4/2026 in which the application seeks the following orders2.That the Honourable Court be pleased to set aside and /or vary the orders issued on 19/3/2026 dismissing the Applicant’s suit.3.That upon setting aside the said orders, the applicant’s suit be reinstated and directions issued for its expeditious hearing on the merits.4.Costs of the application be in the cause. 2.The application is premised on grounds found in the body of the application and the supporting Affidavit of Kirwa Jonah, an Advocate who has conduct of the matter. The applicant contends that Counsel who had conduct of this case had been proactive and diligent in presenting this matter and served the necessary notices for the matter that was coming up on 19/3/2026; that Mr. Mwakio who had conduct of the matter was engaged elsewhere and instructed Mr. Langat to hold his brief but that Mr. Langat got indisposed and was unable to attend the court following which the suit was dismissed; that Mr. Mwakio was unable to reach Mr. Langat on 19/3/2026 and there was a delay on the CTS and was therefore unable to see the outcome of the case till recently when he checked the CTS and found that the matter had been dismissed; that Mr. Langat failed to attend court due to unforeseen circumstances due to illness. It was also deponed that the suit seeks to secure payment of legal fees following a consent adopted between the parties regarding legal representation in Kapenguria High Court Constitutional Petition E002/2021 Hon. Catherine Chepkemoi -V- Hon. Evanson Pkemoi Lomanduny & the County Assembly of West Pokot; that the applicant will be prejudiced as they are being denied a chance to ventilate their claim for services rendered; that the Respondent has failed to take part in these proceedings and will not suffer any prejudice even if the application is granted; that Article 159(2) (d) of the Constitution mandates the court to administer justice without undue regard to procedural technicalities and that an inadvertent omissions due to illness should not override the right to fair hearing. 3.Despite service of the application on the Respondent, no response was filed nor was their appearance. 4.The applicant filed submissions in which two issues were identified as follows; -1.Whether the applicant has demonstrated sufficient cause to warrant the setting aside of the dismissal order made on 19/3/2021;2.Whether the uncontroverted nature of the application and the overriding interests of justice dictate that the suit be reinstated. 5.Counsel submitted that Order 12 Rule 7 of the Civil Procedure Rules vests the court with discretionary powers to set aside dismissal order upon sufficient cause being shown and that a medical emergency constitutes a sufficient cause. Counsel relied on the case of Shah -V- Mbogo 1967 (EA) 116 where the Court of Appeal held that setting aside ex parte orders is intended to avoid injustice and hardship resulting from inadvertence or excusable mistake. 6.Counsel also relied on the case of Philip Chemwolo & Another -V- Augustine Kubande (1986) eKLR where the court held that a litigant should not be overly penalized for inadvertence or mistakes of Counsel and that shutting out a litigant from the seat of justice without a hearing on the merits is draconian and should be left to deliberate and contumacious default. 7.Whether the overriding interests of justice dictate that the suit be reinstated, it was submitted that the claim involves a Judicial Review application for an order of mandamus to secure an already crystalized and undisputed legal fees of the 7,000,000/= and that it arises from a consent order in the petition that had been filed in this court. 8.Counsel also reiterated his reliance on Article 159 (2) (d) of the Constitution and urged the court to administer substantive justice. 9.The court has duly considered the application and the submissions filed by Counsel. A brief history of this matter is that the Notice of Motion was filed on 10/3/2025. It was later amended on 21/11/2025 as the wrong party had been sued. The court gave directions that the matter be mentioned on 27/11/2025, but on that date, the applicant did not appear. The court directed that the matter be mentioned on 26/2/2026 and the applicant was to pay court adjournment fees (CAF) and Notice to Show Cause why the Notice of Motion cannot be dismissed for want of prosecution. It was put off to 19/3/2026. Again on 19/3/2026, there was no appearance on that day and the court dismissed the matter for want of prosecution. It was not until 30/4/2026 that this application was made. It is apparent that the applicants had ignored to appear in court, before the application was dismissed. This being a Judicial Review application, it required of the court to determine a Judicial Review application within six (6) months. After six (6) months, it becomes backlog. As of now the matter has been in court for one year and three months. 10.Order 12 Rule 7 Civil Procedure Rules does confer on the court unlimited discretion to set aside or vary a judgment entered in default of appearance or set aside or vary an order of dismissal. 11.In the case of Shah -V- Mbogo & Another (supra) the Court of Appeal stated thus on the matter of the court’s discretion,"The discretion is intended so as to be exercised to avoid injustice or hardship resulting from inadvertence or excusable mistake or error but is not designed to assist a person who has deliberately sought whether by evasion or otherwise, to obstruct or delay the course of justice”. 12.It is incumbent upon the applicant seeking to set aside the court order in its favour to adduce sufficient and plausible reasons that are demonstratable and persuasive to the court. 13.The explanation given by the applicant for failure to attend court on 19/3/2026 is that Mr. Langat, the Advocate who was to handle the case on behalf of Mr. Mwakio who had conduct of the case, was suddenly taken ill. Though it is said that Mr. Langat suddenly fell ill, it is surprising that the Counsel never sought to find out what transpired in the case from the CTS soon thereafter. Further to that, it seems the Counsel did not bother to follow up with the case for over one month. This claim does not belong to a client but to the firm of Advocates handling this matter. It is surprising that the matter had been handled fairly casually. I had earlier in this ruling noted that the applicants had failed to attend court three times. I cannot totally rule out some indolence on the part of the applicant. 14.The above notwithstanding, I have taken into account the fact that the application was not opposed and the Respondent will not suffer any prejudice if the order sought is granted. 15.The upshot is that I allow the application set aside the dismissal order of 19/3/2026, and direct that the applicants pay the outstanding court adjournment fees first and set down the matter for hearing immediately. The applicants will bear costs of this application. DATED, SIGNED AND DELIVERED AT KAPENGURIA THIS 30TH DAY OF JUNE, 2026HON. R.P.V. WENDOH.JUDGERuling read in the presence of:-Ms. Langat holding brief for Mr. Mwakio Kirwa for applicantJuma/Hellen- Court Assistants.