Automated Summary
Key Facts
The claimant's suit was dismissed on 2 July 2025 for non-attendance during a virtual hearing. The claimant's counsel experienced internet call drops, leading to their absence. The claimant applied for reinstatement within six days, citing the internet issue as unintentional. The court allowed the application, set aside the dismissal, and reinstated the suit. The claimant was ordered to pay Kshs. 20,000 in throw-away costs to the respondent by 15 December 2025.
Issues
The court addressed whether a suit dismissed for non-attendance under Order 12(3) of the Civil Procedure Rules should be reinstated. The claimant's advocate argued that internet call drops prevented attendance, while the respondent contested the justification. The court ruled in favor of reinstatement, citing constitutional rights to a hearing and allowing costs as compensation for prejudice.
Holdings
- The court ordered the claimant to pay the respondent throw-away costs of Kshs. 20,000 before the next hearing date on 15th December 2025, compensating for the prejudice caused by the claimant's absence.
- The court allowed the application, set aside the dismissal order dated 2/7/2025, and reinstated the suit for hearing on merit. The court acknowledged the claimant's internet challenges and deemed the absence by the claimant's counsel as non-deliberate, warranting reinstatement to protect the claimant's constitutional right to a hearing.
Remedies
- The CourtOrders the claimant to pay the respondent throw - away costs for the sum of Kshs. 20,000 before the next hearing date.
- The Court Order dated 2/7/2025 dismissing the suit for non-attendance is hereby set aside, and the suit is reinstated for hearing on merit.
Legal Principles
- The court emphasized that the right to a hearing is a well-protected constitutional right and the cornerstone of the rule of law, referencing the decision in Richard Ncharpi Leiyagu v Independent Electoral Boundaries Commission [2013] eKLR. It held that courts should protect this right unless dismissal is necessary to prevent abuse or injustice.
- The court ordered the claimant to pay throw-away costs of Kshs. 20,000 to the respondent as compensation for prejudice caused by the claimant's absence, in line with the principle that procedural failures can be remedied through cost awards rather than dismissal.
Precedent Name
- Richard Ncharpi Leiyagu v Independent Electoral Boundaries Commission & 2 others
- Philip Chemowolo & another v Augustine Kubede
Cited Statute
Civil Procedure Rules
Judge Name
Lady Justice J.W. Keli
Passage Text
- The excuse by the applicant/claimant of internet call drop is acceptable, as this is not unusual phenomenon to the court. Internet call drops are common even for the court.
- The application is allowed. The Court Order dated 2/7/2025 dismissing the suit for non-attendance is hereby set aside, and the suit is reinstated for hearing on merit. The Court Orders the claimant to pay the respondent throw-away costs for the sum of Kshs. 20,000 before the next hearing date.
- The court finds that the claimant being represented and the advocate having explained the absence on the date scheduled for hearing, the claimant deserved a second chance to exercise his right to a hearing which is a well-protected right in our Constitution and is also the cornerstone of the rule of law (Richard Ncharpi Leiyagu v Independent Electoral Boundaries Commission & 2 others [2013] eKLR).