https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8732

Public Craft International Ltd v Central Rift Valley Water Works Development Agency (Commercial Case E032 of 2024) [2026] KEHC 8732 (KLR) (23 June 2026) (Ruling) Neutral citation: [2026] KEHC 8732 (KLR) Republic of Kenya In the High Court at Nakuru Commercial Case E032 of 2024 JK Sergon, J June 23, 2026 Between Public Craft International Limited Applicant and Central Rift Valley Water Works Development Agency Respondent Ruling 1.Before this court is a Notice of Motion dated 26th March 2026 filed by the Plaintiff/Applicant. The application is brought under Order 12 Rule 7, Order 51 Rule 1 of the Civil Procedure Rules, 2010, and Sections 1A, 1B, 3, and 3A of the Civil Procedure Act, Cap 21. 2.The Applicant seeks the following substantive orders;a.Spent.b.That the orders made on 13th November 2025 dismissing the Plaintiff's suit for non-attendance be set aside and/or varied.c.That the suit herein be reinstated for hearing on a priority basis.d.That costs of the application be provided for. 3.The application is supported by the Supporting Affidavit of Joseph Nderitu, learned counsel for the Applicant, sworn on 26th March 2026. It is opposed by the Respondent through the Replying Affidavit of Caren Lagat, learned counsel for the Respondent, sworn on 26th May 2026. 4.The applicant filed this suit on 22nd August 2024. Parties appeared before the Deputy Registrar for pre-trial compliance on several dates. On 23rd September 2025, the matter was scheduled for mention before the trial judge on 13th November 2025. 5.On 13th November 2025, when the matter was called out, neither party appeared. The court thereupon dismissed the suit for non-attendance/want of prosecution. 6.The applicant now seeks to set aside that dismissal order, contending that the non-attendance was occasioned by technical challenges, that is network failure and power outage, beyond counsel's control. The applicant further states that he only became aware of the dismissal on 24th March 2026 when a court assistant physically perused the court file. 7.The Respondent opposes the application, arguing that the application is incompetent, that there was inordinate delay of about five months, that the applicant has not demonstrated a meritorious suit, and that a preliminary objection on jurisdiction based on arbitration clauses; clauses 27 and 28 of the contract is pending. 8.The following issues arise for determination;a.Whether the Applicant has offered a sufficient explanation for non-attendance on 13th November 2025.b.Whether there was inordinate delay in bringing this application and, if so, whether such delay is excusable.c.Whether the applicant has demonstrated that the suit is meritorious.d.Whether the pending preliminary objection on arbitration affects the application for reinstatement.e.What orders should be made on costs. 9.Order 12 Rule 7 of the Civil Procedure Rules provides:“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 dismissal upon such terms as may be just." 10.The discretion of the court under this rule is wide and unfettered, but it must be exercised judiciously. In Shah v Mbogo & Another [1967] EA 116, the Court of Appeal held at page 116;“The discretion to set aside an ex parte judgment is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but not to assist a person who has deliberately sought to obstruct or delay the course of justice." 11.In Patel v East Africa Cargo Handling Services Ltd [1974] EA 75, the Court held at page 76:“The discretion to set aside an ex parte judgment is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but not to assist a person who has deliberately sought to obstruct or delay the course of justice." 12.In the case of Philip Chemwolo & Another v Augustine Kubede [1982-1988] KAR 103, Apaloo JA stated at page 104:“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 heard on merit." 13.From these authorities, this court distils the following principles; The non-attendance should not be deliberate or intended to obstruct justice. The applicant must show excusable mistake or inadvertence. The application should be made without unreasonable delay. The applicant must demonstrate that the suit raises triable issues. No substantial prejudice should be caused to the respondent that cannot be compensated by costs. 14.Mr. Joseph Nderitu, learned counsel for the Applicant, deponed that on 13th November 2025 he attempted to log into the virtual court session at 9:00 am but was not admitted. At about 9:15 am, a power outage disconnected him. He tried to rejoin using his mobile phone but could not gain access by 10:00 am. 15.He further deponed that he contacted the court registry and was informed the outcome would be updated on the CTS system. However, no timely update was made. It was not until 24th March 2026, when his assistant physically perused the file, that he learned the suit had been dismissed. 16.The Respondent contends that this explanation is insufficient and that counsel failed to demonstrate due diligence. 17.This court takes judicial notice that power outages and network failures are common realities in our courts. This court is inclined to accept that counsel genuinely faced technical challenges on the material day. The non-attendance was not deliberate. However, this court is concerned about the period after the dismissal. While counsel states he relied on the CTS system, prudence would have dictated earlier follow-up with the physical court file. 18.The dismissal order was made on 13th November 2025. The present application was filed on 26th March 2026. That is a period of approximately four months and thirteen days. The applicant explains that he was awaiting an update on the CTS system, which was not made within a reasonable time. 19.The law is clear that the application should be made without unreasonable delay. However, in Philip Chemwolo v Kubede (supra), the Court of Appeal made it clear that mistakes by counsel should not penalize a litigant where the mistake is not deliberate. 20.While the delay of 4.5 months is not insignificant, it is also not inordinate in the context of setting aside a dismissal order, particularly where the Applicant has offered an explanation. The court finds that the delay is excusable in the circumstances. 21.The applicant states that the suit has a high probability of success. The respondent has raised a preliminary objection based on clauses 27 and 28 of the contract, which provide for dispute resolution through adjudication and then arbitration. 22.At this stage, the court is not required to determine the preliminary objection. The Applicant is entitled to be heard on whether the dispute falls within exceptions to the arbitration clause or whether the contractual mechanism was exhausted. This court finds that the suit raises triable issues that should be heard on their merits. 23.The Applicant stands to lose the opportunity to have its commercial dispute heard on the merits if the dismissal is not set aside. The Respondent has not demonstrated substantial prejudice that cannot be compensated by costs. 24.Following the principle in Shah v Mbogo (supra), the discretion of the court should be exercised to avoid injustice or hardship resulting from excusable mistake. 25.Article 159(2)(d) of the Constitution of Kenya, 2010, mandates that justice shall be administered without undue regard to procedural technicalities. 26.Sections 1A and 1B of the Civil Procedure Act establish the overriding objective of facilitating the just, expeditious, proportionate and affordable resolution of disputes. 27.Applying these principles, this court finds that the dismissal of the suit should be set aside. The non-attendance was occasioned by excusable technical challenges, the delay is not inordinate in the circumstances, and the interests of justice favour determination of disputes on substantive merits rather than on technicalities of attendance. 28.Consequently, the application dated 26th March 2026 is hereby allowed on the following terms;i.The orders made on 13th November 2025 dismissing the Plaintiff's suit for non-attendance are hereby set aside.iiThe suit herein is hereby reinstated for hearing on merit.iiiThe applicant shall take necessary steps to fix the matter for hearing, including compliance with pre-trial directions, within 30 days from the date of this ruling. DATED, SIGNED AND DELIVERED AT NAKURU THIS 23RD DAY OF JUNE, 2026.……………………J. K. SERGONJUDGEIn presence of:Jamleck/Rutoh – C/AGichuki for the Plaintiff/ApplicantMiss Lagat for the Defendant/Applicant