Opondo v Odebero [2023] KEHC 25525 (KLR) | Review Of Dismissal Orders | Esheria

Opondo v Odebero [2023] KEHC 25525 (KLR)

Full Case Text

Opondo v Odebero (Civil Appeal E178 of 2023) [2023] KEHC 25525 (KLR) (16 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25525 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil Appeal E178 of 2023

JN Mulwa, J

November 16, 2023

Between

Wilfred Barasa Opondo

Applicant

and

Camilita Akinyi Odebero

Respondent

Ruling

Ruling in Respect of the Notice of Motion Dated 12/08/2023 1. By the Application, the Applicant seeks a review to set aside the dismissal order of his Application dated 30/03/2023 on the 26/07/2023 for none attendance/prosecution. I have considered the reasons for none attendance by the applicant stated at the supporting affidavit and the oral submissions.I have likewise looked at the opposing affidavit and arguments before me on the 24/10/2023.

2. Issues of unstable internet by counsel were raised for none attendance upon which another Advocate, whose name was not disclosed to hold brief, which did not happen.

3. The Respondent rightfully objections to that line of argument as no affidavit has been sworn by the advocate purportedly instructed to hold brief.Be that as it may, some issues especially on connectivity to internet, and dropping of calls cannot be easily proved. The court too experiences such incidents but I am not saying that such should be encouraged.

4. The court notes that this Application was filed soon thereafter.I therefore exercise my discretion, guided by provisions of section A, B and 3A of the Civil Procedure Act to do justice in the circumstances.

5. I proceed to allow the Application by setting aside the dismissal orders dated 26/07/2023, and reinstate for hearing Notice of Motion dated 30/03/2023. The said Notice of Motion dated 30/03/2023 shall therefore be heard interpartes on the 20/03/2024.

6. The interim stay of execution orders issued on the 3/08/2023 are reinstated and extended to 20/03/2024The Applicant is condemned to pay costs of the Application to the Respondent assessed at Kshs. 2000/= before the next hearing date.Orders accordingly.

DELIVERED, DATED AND SIGNED AT NAIROBI THIS 16THNOVEMBER, 2023. J. N. MULWAJUDGE