https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8556

Workineh & 4 others v Butt & another (Commercial Arbitration Cause E052 of 2024) [2026] KEHC 8556 (KLR) (Commercial & Admiralty) (11 June 2026) (Ruling) Neutral citation: [2026] KEHC 8556 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Admiralty Commercial Arbitration Cause E052 of 2024 PM Mulwa, J June 11, 2026 Between Nebiyu Gossa Workineh 1st Applicant Altaf Mapara 2nd Applicant Paloma Lengeme 3rd Applicant Ziva OZ 4th Applicant Itzhar Nissim 5th Applicant and Naseem Noor Butt 1st Respondent Toner Holdings Limited (Developer) 2nd Respondent Ruling 1.The Applicants filed the Notice of Motion dated 7th March 2025 seeking inter alia, that the orders of this Court issued on 17th December 2024 be set aside and that the application dated 9th August 2024 be reinstated for hearing and determination on its merits. 2.The application is supported by the affidavit of Naseem Noor Butt, sworn on 7th March 2025, and opposed by the replying affidavit of Cain Mingo, sworn on 9th April 2025. I have considered the application, the rival affidavits and the material placed before the Court. 3.The background to the dispute is largely uncontested. The Applicant purchased two apartments No. 7, Level 7, Block B and Apartment No. 10, Level 8, Block C in a development known as Muthaiga Heights and subsequently referred a dispute arising from the transaction to arbitration. An arbitral award was rendered in her favour on 11th May 2019. Following unsuccessful attempts to challenge enforcement of the award, a consent decree was eventually entered. Thereafter, an application dated 9th August 2024 seeking to set aside the arbitral award was filed. When the matter came up before Court on 4th November 2024, directions were issued requiring the Applicant to file a replying affidavit within fourteen days. The Applicant failed to comply and neither she nor her advocate attended Court on 17th December 2024 when the impugned orders were made. 4.The Applicant attributes the failure to comply with the Court's directions to illness and surgery which allegedly rendered her unable to give instructions to counsel. She further contends that her advocate inadvertently mis-diarized the Court date and urges the Court not to visit counsel's mistake upon an innocent litigant. 5.The Respondent opposes the application on the ground that the explanation offered is unsatisfactory. They contend that the medical records relied upon do not adequately explain the delay, that no evidence has been produced to demonstrate a diary error on the part of counsel and that the Applicant has failed to establish sufficient cause for the exercise of the Court's discretion. The Respondent stated that the averments relating to the alleged deficiencies in the development and the circumstances leading to the arbitral proceedings are disputed, and that the Respondents are strangers to matters deponed to by the Applicant. The Respondent avers that the arbitral proceedings were conducted without their participation. and that the arbitral award principally directed the relocation of standby generators from the basement to the exterior of the building. Analysis and determination 6.The issue falling for determination is whether the Applicant has established sufficient cause to warrant the setting aside of the orders issued on 17th December 2024 and reinstatement of the application dated 9th August 2024. 7.The Court's discretion is wide and unfettered but must be exercised judiciously and upon reason. 8.In CMC Holdings Ltd v James Mumo Nzioka (2004) KLR 173, the Court stated as follows regarding mistakes in the context of applications to set aside ex parte orders:“The discretion that a court of law has, in deciding whether or not to set aside ex parte order such as before us 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 in our mind not be a proper use of such discretion if the court turns its back to a litigant who clearly demonstrates such an excusable mistake, inadvertence, accident or error.” 9.The main concern of the Court is to do justice to the parties, and that the discretion should be exercised to avoid injustice resulting from accident, inadvertence or excusable error. (See Patel v E.A. Cargo Handling Services Ltd [1974] EA 75). 10.I have carefully considered the explanation offered by the Applicant. It is not disputed that directions requiring the filing of a replying affidavit were issued on 4th November 2024. The Applicant relies on medical records showing that she underwent a medical procedure on 10th December 2024. While the Respondents challenge the admissibility and sufficiency of those records, I am persuaded that the Applicant has demonstrated that she experienced a medical condition during the period preceding the hearing date. 11.In exercising the court's discretion, the Court is also mindful that the application dated 9th August 2024 seeks the setting aside of an arbitral award rendered by Hon. Musyoki Kimanthi, MCIArb, on 11th May 2019. The determination of such an application has significant legal consequences, touching on the finality of arbitral proceedings and the rights accruing therefrom. In the circumstances, the interests of justice favour a determination of the application on its merits after hearing all affected parties rather than on the basis of a procedural default. 12.Further, the Applicant has attributed the failure to attend Court on 17th December 2024 to an inadvertent mistake by counsel in diarizing the matter. It is true that no documentary proof of the diary error has been exhibited. However, courts have consistently held that a litigant should not, where possible, be driven from the seat of justice on account of a genuine mistake by counsel. 13.In Philip Chemwolo & Another v Augustine Kubende [1982-88] KAR 103, Apaloo JA observed:“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 its merits." 14.The Court must balance the competing considerations of finality of litigation and the right of parties to be heard. Article 50(1) of the Constitution guarantees every person the right to have any dispute resolved in a fair and public hearing. Equally, Article 159(2)(d) requires courts to administer justice without undue regard to procedural technicalities. 15.I have not been shown that reinstatement of the application dated 9th August 2024 will occasion prejudice incapable of compensation by an award of costs. On the other hand, declining the application would effectively deny the Applicant an opportunity to respond to an application whose determination may substantially affect her rights under the arbitral award. 16.Consequently, the Notice of Motion dated 7th March 2025 is allowed on the following terms:i.The orders made on 17th December 2024 are hereby set aside.ii.The application dated 9th August 2024 is reinstated for hearing and determination on its meritsiii.The replying affidavit sworn by Naseem Noor Butt on 19th December 2024 is deemed as duly filed and served upon payment of the requisite court fees.iv.The Respondents shall be at liberty to file any further response within fourteen (14) days from the date hereof.v.Costs of the present application shall be in the cause.It is so ordered. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 11TH DAY OF JUNE 2026.P.M. MULWAJUDGEIn the presence of:Ms. Mulwa h/b for Ms. Asli for 1st ApplicantMr. Ashan h/b for Mr. Mingo for RespondentsCourt Assistant: Lispa