https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10384

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MAKUENI CIVIL MISC.APPLICATION NO.E031 OF 2026 SIMBA ENERGY LIMITED …………………………………………...…… APPLICANT VERSUS NICHOLAS BWIRE OJWANG ***alias*** NICHOLAS BWIRE ***alias*** NICHOLUS BWIRE……………...........…………………….……… 1ST RESPONDENT GREEN SKYWAYS AGENCIES LIMITED………………………….. 2ND RESPONDENT ADAM OKUMBO OWINYA ……………………………………... 3RD RESPONDENT **RULING** 1. Via the application dated 25-5-2026, the Applicant herein sought orders made on 18-5-2026 dismissing the application dated 31-3-2026 for want of prosecution set aside and the said application be reinstated. 2. The application is anchored on the grounds set out on the face of it and further supported by the affidavit of Hersi AbdulKarim Ali sworn on 25-5-2026. He stated that he is the Applicant in this case and that he and his counsel failed to attend court on 18-5-2026 due to the strike held country wide that day. 3. He averred that he and his advocates have been vigilant in prosecuting this case without fail. That upon discovery of the said dismissal, they promptly acted by filing the instant application. That if this application is not allowed, the intended appeal will be rendered nugatory hence condemned unheard. He deposed that the Respondents will not suffer any prejudice if the application is allowed. 1. The Respondents filed their response through a replying affidavit thus opposing the application arguing that the aforesaid strike had nothing to do with the Applicant’s non-attendance since proceedings were held virtually. That there was no good reason to justify the Applicant’s or his Advocate’s non-appearance or attendance. He deposed that the Applicant is entitled to the fruits of his judgment hence the application should be dismissed. 2. During the hearing, M/s Okanda Counsel for the Respondent adopted the content of the affidavit in support and urged the court to consider the same on grounds that their non-appearance was an oversight and that Counsel’s mistake should not be visited on his client. She submitted that they are desirous of prosecuting the application as exhibited by their filing of the submissions in respect of the dismissed application. 3. On the other hand, M/s Karanja appearing for the Respondent reiterated the content of their replying affidavit thus urging for the dismissal of the application. 4. I have considered the application herein and response thereof. The only issue for determination is whether the Applicant deserves the prayers sought. There is no dispute that the Applicant did not attend court when their application dated 31-3-2026 was called out for hearing. Counsel for the Applicant stated that their non-attendance was due to an oversight. The Applicant also stated that their Counsel’s failure to attend court was due to the countrywide strike then. 5. From the two versions given, the Applicant’s Counsel was to blame for non-attendance. Hearing of applications is usually conducted virtually hence the element of wide spread strike had nothing to do with his or her non-attendance. However, Counsel has candidly accepted her mistake by stating that it was an oversight and that they are serious of prosecuting the application which is exhibited by the already filed submissions. 6. From the Applicants’ Counsel’s admission of responsibility, it is apparent that the client is likely to suffer because of Counsel’s mistake. Looking at the other side of the coin, it is clear that the Applicant has already filed submissions in respect of the dismissed application an indication of the Applicant’s seriousness to prosecute the application. In fact, what was remaining was to merely adopt the same and then wait for the ruling. With this action and effort already in place, am convinced that there must have been an oversight which mistake should not be visited on a client who has nothing to do with it. 7. It is trite law that where there is excusable mistake on counsel, his client should not suffer. See **Mbogo & Another vs Shah (1968)E.A 93** where the court said; **“…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 it is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the cause of justice”.** 1. In view of the above finding, I am of the opinion that the exercise of discretion should be tilted in favour of the Applicant as no prejudice will be suffered if the application is allowed. Accordingly, the application is allowed as prayed and the application dated 31-3 -2026 reinstated with the hearing fixed for 30-7-2026. Dated, signed and delivered virtually this **10th** day of **July 2026** ……………......……….. J.N.ONYIEGO **JUDGE**