https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9766

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI COMMERCIAL COURTS** **COMMERCIAL & TAX DIVISION** **MISC. APPLICATION NO. E440 OF 2019** **IN THE MATTER OF THE ADVOCATES ACT, CAP 16 AND IN THE MATTER OF TAXATION** **BETWEEN** **OMBUNA ONGERI & COMPANY ADVOCATES ……… APPLICANT** **-VERSUS-** **TRIDENT INSURANCE COMPANY LIMITED ……… RESPONDENT** **RULING** 1. Before this Court for determination is the Notice of Motion application dated 21st November, 2025. It seeks orders that the dismissal order made on 17th November, 2025, dismissing the application dated 4th September, 2024 for non-attendance, be set aside and the said application be reinstated for hearing on the merits. 2. The application is brought under Order 12, rule 7 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act and is supported by the affidavit of Robert Ongeri, Advocate, sworn on even date. 3. The Applicant avers that the application dated 4th September, 2024, was dismissed during a mention on 17th November, 2025, due to non-attendance. It is deponed that when the matter was called out virtually, counsel for the Applicant was present but was unable to respond owing to a sudden internet failure caused by a power outage at their offices. 4. The Applicant contends that the failure to attend was neither deliberate nor intended to obstruct justice, but was occasioned by circumstances beyond counsel’s control. The court is therefore urged to exercise its discretion to set aside the dismissal and reinstate the application for hearing on its merits. 5. Despite being served and given numerous opportunities to defend that application the Respondent failed to do so. From the record, an affidavit of service sworn on 3rd June, 2026, by Ayienda Dennis Ongeri, the Respondent, who is currently under statutory management indicate that the Respondent was duly served with a hearing notice for 8th June, 2026. They did not file any response and the application remained undefended. Accordingly, the application is unopposed. 6. Under Order 12, rule 7 of the Civil Procedure Rules, the court has discretionary power to set aside an order made in the absence of a party. The discretion must be exercised judiciously and on terms that are just, with the primary aim being to do substantive justice to the parties. 7. In this case, the reason advanced for non-attendance is that counsel lost connectivity during a virtual court session due to a power outage. This explanation has not been controverted. In the absence of any response from the Respondent, the court has no basis to doubt the veracity of the explanation. 8. The Court is also guided by the principle that disputes ought to be determined on their merits wherever possible, and that a party should not be shut out from the seat of justice due to inadvertent procedural lapses, particularly where a reasonable explanation has been offered. 9. In addition, the Respondent’s failure to oppose the application, despite being afforded multiple opportunities, lends further weight to the Applicant’s plea. 10. In the circumstances, the Court finds merit in the application and makes the following orders: 11. **The application dated 21st November, 2025, is hereby allowed.** 12. **The order made on 17th November, 2025 dismissing the application dated 4th September, 2024, is hereby set aside.** ***Delivered, Dated and Signed virtually this 29th day of June, 2026*** **RHODA RUTTO** **JUDGE** **In the presence of;** **Court Assistant: Wabwire** **Ms. Oganga holding brief for Mr. Ongeri for the Applicant**