Nyatangi t/a Benom Hardware v Amiral & another (Environment and Land Appeal E035 of 2025) [2026] KEELC 4663 (KLR) (23 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT ELDORET** **ELC LAND APPEAL NO. E035 OF 2025** **BENEDICT SIMION ONDIEKI NYATANGI** **T/A BENOM HARDWARE …………….... APPELLANT/APPLICANT** **VERSUS** **HUZEFA AMIRAL,** **COSMIC CONSULTANTS ……………………………….RESPONDENTS** **RULING:** 1. The Appellant/Applicant herein filed a Notice of Motion Application dated 15th April, 2026, seeking the following orders:- * 1. Spent 2. That the orders made on 13/4/2026 dismissing the appeal be set aside. 3. That the appeal be reinstated and heard on merit 4. Costs of the Application be in the appeal. 2. The application is premised on the 7 grounds on the face thereof and on the Supporting Affidavit sworn by one Elijah Momanyi Mogona, an advocate of the High Court of Kenya, practicing in the firm of Anassi Momanyi & Company Advocates and having conduct of the matter herein on behalf of the applicant, on even date. 3. The advocate on record acknowledged that the matter was scheduled for a mention for directions on the hearing of the appeal before this Honourable Court on 13/4/2026. 4. It is however his claim that on the said date, 13/4/2026, there was constant power outages and which led to network challenges and as a result, he was unable to join the virtual court session on time. 5. It is further his claim that by the time he was able to join the virtual court session, the appeal had already been dismissed for want of prosecution. He maintained that the applicant did not in any way contribute to his failure to attend court in time but that the non-attendance was as a result of the power outage which was beyond his control. 6. The advocate thus contends that the appellant/applicant has been keen and desirous of pursuing the appeal and should therefore not be condemned unheard. 7. He further pleaded that no prejudice would be suffered by the respondents since the appeal will be set down for hearing and determined on merit and thus urged the court to allow the application as sought in the interest of justice. 8. Despite the application being served upon the respondents on 23.04.2026 and an Affidavit of Service dated 12.05.2026 duly filed to that effect, from a perusal of the court record and the online filing portal, CTS, I have not seen any response to the application filed by the respondents. Therefore, the application was no opposed. 9. On 18.05.2026, when the matter came up for interpartes hearing of the present application, Mr. Momanyi, counsel for the appellant/applicant informed the court that despite the respondents being duly served with the application and relevant documents, they had not been served with any response thereto. He therefore urged the court to deem the application unopposed and allow the same as sought. **Analysis and Determination:** 1. I have carefully considered the grounds in the application and in the supporting affidavit sworn by the applicant’s counsel on record Mr. Elijah Momanyi, and it is my considered view that the main issue arising for determination is whether the applicant has proved its case to warrant the setting aside of the dismissal order issued on 13.04.2026 and the subsequent reinstatement of the appeal filed vide the Memorandum of Appeal dated 07.07.2025. 2. It is not in dispute that when the matter herein came up before this court on 13.04.2026 for mention on directions of the appeal, neither the appellant and/or his advocate on record nor the respondents and/or their advocates were present in court. This court noted that the mention date was taken in the presence of the advocate for the appellant and who was directed to serve the respondent with the same. Consequently, in the absence of the appellant and their advocate on record, this court ordered the matter dismissed for want of prosecution and marked the file closed. 3. The appellant/applicant has therefore sought the setting aside of the said dismissal order issued on the 13.04.2026 and for the reinstatement of the appeal for hearing and determination on merit. 4. Order 12 Rule 7 gives this court the powers to set aside a judgment or a dismissal order, on an application by a party upon such terms as may be fit and just. This power is however discretionary in nature and must be exercised judiciously and not based on sympathy or whimsically as held in the case of **Mbogo & Another V. Shah [1968] EA 98**. 5. Order 12 Rule 7 of the Civil Procedure Rules provides as follows:- ***7. 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.(emphasis mine)*** 1. The principles spelt out in ***Shah v Mbogo (1967 (EA) 116)*** were restated by the Court of Appeal in ***Daqare Transporters Limited v Chevron Kenya Limited [2020] eKLR*** while considering the discretion of the Court under the provisions of order 12 rule 7 of the Civil Procedure Rules as follows: ***“The discretion under order 12 rule 7 is exercised so as to avoid injustice as a result of inadvertent or excusable mistakes and errors. Therefore, a court needs to satisfy itself as to whether the reason given by the appellant was excusable…”*** 1. The applicant herein has premised his ground for setting aside the dismissal order on the failure by his advocate on record to attend court 13.04.2026, when the matter was coming up for mention for directions on the appeal. 2. The advocate’s non-attendance on the material date has however been attributed to power outages on the said date which caused network challenges, which counsel maintained was beyond counsel’s control. That as a result of the said network challenges, the advocate on record was unable to attend the virtual court session on time hence the dismissal of the appeal for want of prosecution. 3. The respondents on their part did not file any response to the said averments as outlined in the application and the supporting affidavit to either rebut and/or challenge the said averments. 4. The question that therefore follows is whether the reasons and basis advanced by the applicant for their non-attendance on the material date are sufficient to warrant the setting aside of the dismissal order issued by this court. 5. Even though counsel for the applicant has attributed his failure to attend court on time on the material date on network challenges and that by the time he was able to join the virtual court session the matter had already been called out and the dismissal orders made, he did not annex any proof in support of the same. 6. Be that as it may, this court is cognizant of its duty to serve substantive justice to all parties to a dispute before it. Each party has a legitimate expectation that they will be given an opportunity to advance their respective cases and a determination reached on merit. This was the holding in the case of ***Wachira Karani vs Bildad Wachira Civil Suit No. 101 of 2011 [2016] eKLR***. 7. In addition, an issue of network challenges as raised by the applicant’s advocate is not an isolated case and/or peculiar to the applicant alone. As a matter of fact, even courts do experience network challenges and internet downtime which affects virtual court sessions. I will therefore proceed to grant the applicant the benefit of doubt and find that the non-attendance on the part of the appellant/applicant’s advocate was not deliberate. 8. This court is further guided by the decision in ***CMC Holdings Limited -vs- Nzioki [2004] 1 KLR 173*** it was held that: ***“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. We do not think the answer to that weighty issue was to advise the appellant of the recourse open to it, as the learned Magistrate did here... In doing so, she drove the Appellant out of the seat of justice empty handed when it had what might have very well amounted to an excusable mistake visited upon the appellant by its advocate.”*** 1. Thus, guided by the provisions of Article 159 of the Constitution on the need for substantive justice as read with Article 50 on the right to a fair hearing and Order 12 Rule 7, I will proceed to grant the applicant the benefit of doubt and set aside the dismissal orders issued on the 13.04.2026. 2. In view of the foregoing, it is the finding of this court that there exists a just and sufficient reason to warrant the setting of the dismissal orders of this court issued on 13.04.2026 and for the reinstatement of the appeal as sought. **Costs:** 1. On the issue of costs, the general rule is that costs shall follow the event unless the court directs otherwise. However, given the circumstances of the case, I will direct each party to bear their costs of the application. **Disposition:** 1. In view of the foregoing, I accordingly find that the Notice of Motion Application dated 15th April, 2026 is **merited** and is hereby **allowed** on the following terms; 2. **The application dated 15.04.2026 is hereby allowed.** 3. **An order be and is hereby issued setting aside the orders made on 13.04.2026 dismissing the appeal.** 4. **An order be and is hereby issued reinstating the appeal for hearing and determination on merit.** 5. **Each party to bear their own costs of the application.** 6. It is so ordered. **DATED**, **SIGNED** and **DELIVERED** in **ELDORET** this **23RD** day of **JULY, 2026.** **HON. C. K. YANO** **JUDGE** Ruling delivered in the virtual presence of: - Mr. Wainaina holding brief for Mr. Momanyi for Appellant. Mr. Aseso for the Respondents. Court Assistant – Laban