JUDGMENT OF CHESONI AG J A
The appellant’s suit was dismissed in the Resident Magistrate’s Court at Sheria House, Nairobi, under Order IXB Rule 4(1) of the Civil Procedure Rules (Cap 21). The appellant and his then advocate, had failed to attend court on the day fixed for the hearing of the suit. The appellant later applied to the same court, under Rule 8 of the same order, to have the dismissal order set aside, but that application was dismissed and so was the appeal to the High Court (Gachuhi, J) from the refusal to set aside the ex-parte judgment.
The question is: can a plaintiff whose suit has been dismissed, under Rule 4, for failure to attend court on the hearing date, apply for the order dismissing the suit to be set aside under Order IXB Rule 8? Both Mr Kinyanjui, for the appellant, and Miss Mwangi, for the respondent, agreed that this was the issue. Mr Kinaynjui submitted that, taking into account the definition of the word “decree” in Section 2 of the Civil Procedure Act (Cap …