[2025] KEMC 60 (KLR)

African Inland Church Kenya Trustees Registered v Nzomo (Environment & Land Case 33 of 2018) [2025] KEMC 60 (KLR) (27 March 2025) (Ruling)

Neutral citation: [2025] KEMC 60 (KLR)

Republic of Kenya

In the Makindu Law Courts

Environment & Land Case 33 of 2018

YA Shikanda, SPM

March 27, 2025

Between

African Inland Church Kenya Trustees Registered

Plaintiff

and

William Wambua Nzomo

Defendant

Ruling

The Application 1. The application for determination is dated 4/9/2024 brought by the defendant pursuant to the provisions of Order 12 rule 7 of the Civil Procedure Rules and sections 1A, 1B and 3A of the Civil Procedure Act. The application seeks the following orders, other prayers having been spent:1. That the resultant judgment dated 18/3/2024 be set aside and the defence be heard on merit;2. The Honourable court be pleased to order for recall and further cross-examination of all the plaintiff’s witnesses;3. Leave be granted to the applicant to file witness statements;4. That the costs of this application be provided for.

2. The application is supported by affidavit sworn by the defendant and is premised on the following grounds:i.The applicant did not attend court on 16/6/2023 to prosecute his defence;ii.The applicant was acting in person and not knowledgeable with the court processes despite the advice to file a formal application to re-open the case on 18/9/2023;iii.The defendant’s reason for non-attendance on the hearing day is sufficient cause;iv.The defendant will suffer great prejudice if the judgment remains and is executed;v.The essence of setting aside and ex parte judgment is a matter of discretion of the court;vi.The subject issue is land which is remote and the applicant stands condemned unheard;vii.The applicant is in possession, use and occupation of the suit land and would be evicted if his defence is not determined on merit;viii.The defendant has never been served with any judgment notices as required by law;ix.There is need for the plaintiff’s witnesses to be further cross-examined by counsel for the defendant now on record;x.The respondent can be compensated by an award of costs;xi.The application is made in good faith and timely in the interest of justice for both parties.

3. In the affidavit in support of the application, the defendant reiterated the grounds in support of the application and explained that on the day when he was to attend court for defence hearing, he was injured by an animal and had to seek medical attention. That he later attended court but did not understand the advice that was given to him by the court.

The Plaintiff's Response 4. The plaintiff opposed the application by filing a Replying affidavit sworn by one Elijah Muli Ngwili, who claimed to be the Secretary of the Church Committee. The deponent used many words just to mean that the application was devoid of merit. That the applicant was given more than one chance to prosecute his case but did not do so. The respondent deposed that the applicant ignored the court’s advice and directions on how to handle his matter. The applicant argued that the court was functus officio, having determined the matter with the participation of both parties. The respondent argued that the judgment was not obtained ex parte as the applicant was in attendance throughout. That the defendant chose to act in person and ought to have acted with alacrity and self-consciousness to defend his claim.

5. The plaintiff argued that the applicant was given sufficient time to file his witness statements but he failed to do so. That even after the defence case was closed, the court took time to explain to the applicant what he needed to do and gave him time to file the necessary application but the applicant failed to do so. The gist of the plaintiff’s response is that the defendant had more than sufficient time to put his house in order but ignored to do so. That the defendant has not given sufficient reasons to explain why he did not attend court and why he did not file witness statements in good time. The plaintiff urged the court to dismiss the application with costs.

Main Issues Or Questions For Determination 6. Having perused the application as well as the response by the Plaintiff, I find that the main issues or questions for determination are as follows:i.Whether there are sufficient grounds to warrant setting aside of the Judgment herein and granting the defendant leave to defend the suit;ii.Whether there are sufficient grounds to extend time for the defendant to file witness statements;iii.Whether there are sufficient grounds to recall the plaintiff’s witnesses for further cross-examination;iv.What orders should the court make with respect to costs of the application?

Submissions 7. The parties agreed to dispose of the application by way of written submissions. The plaintiff indicated that they would rely entirely on the Replying affidavit and would not file submissions. On 20/1/2025 when the matter came up, Counsel for the defendant/applicant misled the court that he had filed submissions. I checked the CTS but did not find any submissions by the defendant/applicant. In ordinary circumstances, this would imply that the defendant did not prosecute his application. However, I will proceed to determine the application based on the documents filed.

Analysis And Determination The Legal Provisions 8. Order 12 rule 2 of the Civil Procedure Rules stipulates that:“If on the day fixed for hearing, after the suit has been called on for hearing outside the court, only the plaintiff attends, if the court is satisfied—(a)that notice of hearing was duly served, it may proceed ex parte;

9. Order 12 rule 7 provides as follows:“Where under this Order judgment has been entered or the suit has been dismissed, the court, on application, may set aside or vary the judgment or order upon such terms as may be just.

10. Section 1A of the Civil Procedure Act provides as follows:“(1)The overriding objective of this Act and the rules made hereunder is to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act.(2)The Court shall, in the exercise of its powers under this Act or the interpretation of any of its provisions, seek to give effect to the overriding objective specified in subsection (1).(3)A party to civil proceedings or an advocate for such a party is under a duty to assist the Court to further the overriding objective of the Act and, to that effect, to participate in the processes of the Court and to comply with the directions and orders of the Court".

11. Section 1B provides thus:“(1)For the purpose of furthering the overriding objective specified in section 1A, the Court shall handle all matters presented before it for the purpose of attaining the following aims—(a)the just determination of the proceedings;(b)the efficient disposal of the business of the Court;(c)the efficient use of the available judicial and administrative resources;(d)the timely disposal of the proceedings, and all other proceedings in the Court, at a cost affordable by the respective parties; and(e)the use of suitable technology".

12. Section 3A provides:“Nothing in this Act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court".

13. Article 159(2) (b) of the Constitution provides that in exercising judicial authority, the courts and tribunals shall be guided by the principle that justice shall not be delayed.

Analysis 14. I have carefully considered the application as well as the plaintiff's response. The plaintiff in its Replying affidavit explained in detail what transpired in court. The defendant sought leave to file a further affidavit but none was filed. From the provisions of Order 12 rule 7 of the Civil Procedure rules, it is clear that the power to set aside a judgment entered in default of attendance is within the discretion of the court. In the case of Patel v EA Cargo Handling Services Ltd [1974] EA 75 the Court of Appeal per Duffus President of the Court stated thus:“There are no limits or restrictions on the judge’s discretion except that if he does vary the judgment he does so on such terms as may be just. The main concern of the court is to do justice to the parties and the court will not impose conditions on itself or fetter the wide discretion given to it by the rules……….the principle obviously is that unless and until the Court has pronounced judgment upon the merits or by consent, it is to have power to revoke the expression of its coercive power where that has obtained only by a failure to follow any of the rules of procedure.”

15. In Shah v Mbogo [1967] E.A 116 at 123, Harris J held as follows;“I have carefully considered, in relation to the present application, the principles governing the exercise of the court's discretion to set aside a judgement obtained ex parte. This discretion is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error, but is not designed to assist a person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice."

16. In the case of Smith v Middleton [1972] SC 30, it was held that discretionary power should be exercised judicially and in a selective and discriminatory manner, not arbitrarily and idiosyncratically. The principles to be considered by the court in an application of this nature were well articulated in the case of Pithon Waweru Maina v Thuka Mugiria [1983] eKLR. In the said case, the Court of Appeal held that the principles governing the exercise of judicial discretion to set aside an ex parte judgment obtained in the absence of an appearance or defence by the defendant or upon the failure of either party to attend the hearing are:1. There are no limits or restrictions on the judge’s discretion except that if he does vary the judgment he does so on such terms as may be just;2. This discretion is intended so to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist the person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice;3. The court has no discretion where it appears there has been no proper service;4. The power to set aside judgment does not cease to apply because a decree has been extracted;5. Some of the matters to be considered when an application is made are, the facts and circumstances, both prior and subsequent, and all the respective merits of the parties together with any other material factors which appear to have entered into the passing of the judgment, which would not or might not have been present had the judgment not been ex parte and whether or not it would be just and reasonable, to set aside or vary the judgment, upon terms to be imposed;6. The nature of the action should be considered, the defence if one has been brought to the notice of the court, however irregularly, should be considered;7. The question as to whether the plaintiff can reasonably be compensated by costs for any delay occasioned should be considered;8. It should be remembered that to deny the subject a hearing should be the last resort of a court.

17. I have perused the record. The plaintiff aptly captured, in its Replying affidavit, what transpired before judgment was delivered. The plaintiff’s case was closed on 23/1/2023 in the presence of the defendant. Thereafter, the defendant was granted 14 days to file and serve his witness statements. A date for defence hearing was set for 19/6/2023. This was about six months away. On 19/6/2023, the defendant did not attend court although he was aware of the date. The defence case was closed. On 18/9/2023 the defendant attended court and explained that he had been injured and that is why he did not attend court for defence hearing. The court granted him 14 days to file an application to re-open the defence case.

18. The defendant did not file the application to re-open the defence case. The matter was then slated for submissions and it took a while before a judgment date was set. It is worth noting that the defendant attended all the subsequent proceedings after his case was closed, save for 18/3/2024 when his wife attended on his behalf. It took the defendant almost one year to file the application to re-open the case and seven months to apply for the judgment to be set aside. In the case of Dominic Mutua Maweu v Occidental Insurance Co. Limited [2014] eKLR, the court allowed the defendant to re-open the defence case and produce a policy Insurance which had been omitted during the defence hearing. In allowing the application, the court observed as follows:“I cannot find any basis of refusing the prayer sought by the defendant. As rightly submitted by the defence, this court is obligated to give effect to the overriding objective of section 1A of the Civil Procedure Act Cap 21. The pertinent part of that objective is that this court should facilitate the just resolution of civil disputes. In my view, the ends of justice would be best served by allowing the prayer sought."

19. In the Australian case of Smith v New South Wales [1992] HCA 36; (1992) 176 CLR 256, it was held:“If an application is made to reopen on the basis that new or additional evidence is available, it will be relevant, at that stage, to enquire why the evidence was not called at the hearing. If there was a deliberate decision not recorded, ordinarily that will tell decisively against the application. But assuming that that hurdle is passed, different considerations may apply depending upon whether the case is simply one in which the hearing is complete, or one which reasons for the judgment have been delivered. In the latter situations the appeal rules relating to fresh evidence may provide a useful guide as to the manner in which the discretion to reopen should be exercised.”

20. In the case of Samuel Kiti Lewa v Housing Finance Co. of Kenya Ltd & Another [2015] eKLR, it was held that the court retains discretion to allow re-opening of a case. The court further held that the discretion must be exercised judiciously. That in exercising that discretion the court should ensure that such re-opening does not embarrass or prejudice the opposite party. In that regard re-opening of a case should not be allowed where it is intended to fill gaps in evidence. Further, such prayer for re-opening of the case will be defeated by inordinate and unexplained delay. In the case of Hashi Shirwa v Swalahudin Mohamed Ahmed [2011]eKLR, the court observed that re-opening a case is not an impossibility but there must be cogent reasons for re-opening and not because a party has suddenly had a brain wave and spotted a loophole in its case, which it can now seal by re-opening the case. While declining a similar application, the court held as follows:“A court has a duty to ensure parties are fair to each other and not conduct trial by ambush. The role of the court in this shroud of mystery is to be an impartial umpire ensuring that there is no rough tackle and offside play. Litigants are not in a game of chess where for every move made, there must be a counter move and re-introduction of a checkmate. If the court allowed that, litigation would never end."

21. In my view, re-opening of a case is an indulgence requested from the court by a party in default. He is not entitled to the indulgence. He has no reasonable or legitimate expectation of receiving one. His only reasonable or legitimate expectation is that the discretion relevant to his application to re-open the case will be exercised judiciously in accordance with established principles of what is fair and reasonable. In those circumstances, it is incumbent on the applicant to provide the court with a full, honest and acceptable explanation of the reasons for failure to avail the evidence sought to be adduced by re-opening of the case. He cannot reasonably expect the discretion to be exercised in his favour, as a defaulter, unless he provides an explanation for the default and whether there are any extenuating circumstances that can enable the Court to exercise its discretion in favour of the applicant.

22. The Defendant seeks an equitable remedy. It is the kind of prayer that calls upon the court to exercise its discretion. In my view, the court retains discretion to allow the application. The discretion must be exercised judiciously. In exercising such discretion, the court should ensure that granting the orders sought does not embarrass or prejudice the opposite party. In that regard, the prayers sought should not be granted where it is intended to fill gaps in evidence. Furthermore, such prayer would be defeated by inordinate and unexplained delay. In my view, the delay in filing the application was inordinate. The defendant/applicant explained that he did not attend court for the defence hearing because he had been injured. The affidavit in support of the application indicates that an annexure was to be attached but none was attached. This was quite misleading on the part of the defendant/applicant.

23. The defendant/applicant was not candid when making the application. He indicated that he had never been served with judgment notices yet the record is clear that he attended court when the judgment date was set and on subsequent occasions when the judgment was deferred. He was well aware of when the judgment would be delivered. He was even present in court on 1/7/2024 when the judgment was delivered, although the same erroneously indicates that it was delivered on 18/3/2024. The defendant knew as early as 18/9/2023 that his case had been closed. The court was lenient enough to give him time to file an application to re-open his case. It took the defendant almost one year to file the application from the time he was made aware that his case had been closed.

24. In my view, the delay in filing the application was inordinate. The plaintiff/applicant did not even bother to explain the delay. The mere fact that the defendant was acting in person does not justify the delay. In any event, the court went out of its way to explain to him what he ought to do and even gave him time to file the relevant application but he failed to do so. It is also no justification that this is a land dispute or that it is an emotive matter. The defendant waited for judgment to be delivered and now wants to re-open the case and introduce evidence. Article 159(2) (b) of the Constitution of Kenya provides that justice shall not be delayed. Justice herein has been delayed. In the case of Argan Wekesa Okumu v Dima college Limited & 2 Others [2015] eKLR, Mabeya J held that when delay has been established, unless it is well explained, it becomes inexcusable.

25. Section 1A of the Civil Procedure Act provides that the overriding objective of the Act and the rules made thereunder is to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act and that the Court shall, in the exercise of its powers under the Act or the interpretation of any of its provisions, seek to give effect to the overriding objective. It is also provided that a party to civil proceedings or an advocate for such a party is under a duty to assist the Court to further the overriding objective of the Act and, to that effect, to participate in the processes of the Court and to comply with the directions and orders of the Court. Section 1B of the Civil Procedure Act enjoins the court to ensure timely disposal of proceedings, among other things. The defendant has, without reasonable cause or excuse, failed to assist the court to further the overriding objective of the Act.

26. My view is that a party in default cannot claim as of right, but must earn the court's succour. The same applies to the overriding objective captured under sections 1A and 1B of the Civil Procedure Act. A party who decides to sit on their rights and delay or derail the due process cannot hide under the guise of "procedural technicality". Expeditious disposal of disputes is key to all cases and is fundamental to the administration of justice. It is a component of substantive justice as opposed to mere procedural technicalities. I would borrow the words of the Court of Appeal in the case of John Ongeri Mariaria & 2 Others v Paul Mutundura [2004] 2 EA 163, wherein the Court observed quite authoritatively that:“Legal business can no longer be handled in such sloppy and careless manner. Some clients must learn at their costs that the consequences of careless and leisurely approach to work must fall on their shoulders ….whereas it is true that the court has unfettered discretion, like all judicial discretions, must be exercised upon reason not capriciously or sympathy alone……justice must look both ways as the rules of procedure are meant to regulate administration of justice and they are not meant to assist the indolent.”

27. In the case of Aggrey O. Obare V Telkom Kenya Limited [2011] KEHC 2161 (KLR), Kimaru J (as he then was) had this to say on the issue of delay:“In the present application, although the proceedings were ready on 30th August 2010, (within the period in which the applicant would have lodged the appeal) the applicant did not present the present application to this court until three months later i.e. on 1st December 2010. The applicant did not give a cogent reason for this delay. It is clear that the applicant was indolent. He is guilty of laches. This court cannot exercise its discretion in favour of such indolent litigant. The justice of this case demands that this court declines to exercise its discretion in favour of the applicant”.

28. In the case of Abigael Barmao v Mwangi Theuri [2013] KEELC 78 (KLR), Munyao Sila J held:“My view of this application is that the plaintiff has been guilty of laches. If a proper explanation had been provided as to why there has been a delay of more than 4 years, then probably I would have been moved to grant the injunction. But no explanation has been given, and I can only conclude that the plaintiff is guilty of delay. There is no doubt that 4 years before seeking relief is a period that is inordinately too long. I therefore decline to grant the injunction sought but make no orders as to costs. I direct the plaintiff to set down the suit for hearing and the matter to be determined on merits”.

29. The remedy sought by the plaintiff is founded in equity and one of the maxims of equity is that "delay defeats equity". In Snell's Equity, 30th Edition at p 33 para 3-16 (quoting Lord Camden L.C in Smith v Clay (1767) 3 Bro. C.C. 639n. at 640n) it is asserted that a court of equity:“has always refused its aid to stale demands, where a party has slept upon his right and acquiesced for a great length of time. Nothing can call forth this court into activity, but conscience, good faith, and reasonable diligence; where these are wanting, the court is passive, and does nothing."

30. The defendant herein is guilty of laches. He has not even explained why he could not move the court in good time even after being advised to do so by the court and after being given sufficient time. The defendant also prays to be allowed to file witness statement(s). He ought to have filed any witness statements with his statement of defence. The defendant was represented by counsel as early as 2019 but did not bother to file witness statements. Nevertheless, the record indicates that on 16/11/2021 the court granted leave to the defendant to file and serve witness statements within 60 days but he failed to do so and no explanation was given. On 23/1/2023 after the plaintiff’s case was closed, the defendant was granted an extension of 14 days to file his witness statements but as usual, he failed to do so.

31. Years later, the defendant now wants to be given more time to file witness statements. He did not even annex draft witness statements to the affidavit in support of the application. In the authority of Karura Investments Limited v Magugu & 3 others [2023] KEELC 16849 (KLR), the court observed:“From the record, I am satisfied that the 1st defendant was given ample opportunity to file statements of the witnesses that she wished to call in her defence in this matter……………….The 1st defendant has not explained why she did not file the witness statements she now seeks to file following the leave that she was granted earlier. In the absence of such an explanation, there is no basis upon which the court can exercise its discretion in favour of the 1st defendant. I have also noted that the 1st defendant has not annexed to her application copies of the additional witness statements that she wishes to file. The court is in the circumstances unable to appreciate the importance of the proposed witnesses to the 1st defendant’s case. The court is also unable to determine whether the introduction of the said witnesses at this stage would be prejudicial to the plaintiff which has already closed its case.”

32. In the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR, the Supreme Court of Kenya held as follows:“Time is a crucial component in dispensation of justice, hence the maxim: Justice delayed is justice denied. It is a litigant's legitimate expectation where they seek justice that the same will be dispensed timeously. Hence, the various constitutional and statutory provisions on time frames within which matters have to be heard and determined............. Extension of time being a creature of equity, one can only enjoy it if he acts equitably: he who seeks equity must do equity. Hence, one has to lay a basis that he was not at fault so as to let time to lapse. Extension of time is not a right of a litigant against a court, but a discretionary power of the courts which litigants have to lay a basis where they seek courts to grant it".

34. The Supreme Court, in the above case, laid down the following underlying principles that a court should consider when exercising its discretion to extend time:1. Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court;2. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;3. Whether the court should exercise the discretion to extend time is a consideration to be made on a case to case basis;4. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;5. Whether there will be any prejudice suffered by the respondent if the extension is granted;6. Whether the application has been brought without undue delay; and7. Whether in certain cases like election petitions, public interest should be a consideration for extending time.

35. Given the circumstances of this case, the defendant does not meet the threshold that would warrant the court to grant him an extension of time to file witness statements. His previous conduct and explained delay gives him away. He even failed to file submissions in support of his application! The defendant has also applied to have the plaintiff’s witnesses recalled for further cross-examination. Section 146 (4) of the Evidence Act grants the court powers to recall a witness. It provides as follows:(4)The court may in all cases permit a witness to be recalled either for further examination-in-chief or for further cross-examination, and if it does so, the parties have the right of further cross-examination and re-examination respectively.”

36. Similarly, Order 18 Rule 10 of the Civil Procedure Rules grants the court powers to recall any witness who has been examined. It provides thus:The court may at any stage of the suit recall any witness who has been examined, and may, subject to the law of evidence for the time being in force; put such questions to him as the court thinks fit.”

37. In the case of Fernandes Vs Noronha [1969] E.A. 506, it was held that the discretion to recall a witness for further examination or cross-examination should be exercised in exceptional cases and only where an injustice would otherwise occur. No reason at all has been given by the defendant/applicant to explain why he wants to have the plaintiff’s witnesses recalled. In as much as the court has discretion to order for recall of witnesses, such discretion cannot be exercised as a matter of course. Judgment has already been delivered herein. For the court to recall witnesses, the case has to be re-opened and for the case to be re-opened, the defendant must give sufficient case.

38. The Supreme Court of India in the case of Parimal v Veena Bharti AIR 2011 Supreme Court 1150, observed that:Sufficient cause" is an expression which has been used in large number of statutes. The meaning of the word "sufficient" is "adequate" or "enough", in as much as may be necessary to answer the purpose intended. Therefore the word "sufficient" embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the view point of a reasonable standard of a curious man. In this context, "sufficient cause" means that party had not acted in a negligent manner or there was want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been "not acting diligently" or "remaining inactive." However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously" (Emphasis supplied)

39. I have already pointed out that no good reasons have been given to warrant re-opening of the case. Consequently, the prayer to recall the plaintiff’s witnesses must of necessity fail. My understanding of sections 1A, 1B and 3A of the Civil Procedure Act is that the provisions cannot be invoked as a matter of course so as to excuse all and any kind of failing on the part of a party to abide by the requirements of the rules. In my view, the overriding objective was brought to ensure that justice is served to both parties and further, where there is a conflict of the Oxygen Rules Principles with the substantive law, the law ought to be interpreted in such a manner that will ensure the administration of justice. I find nothing in the overriding objective to suggest that the delay herein, which has not been sufficiently explained can be excused.

40. Delay is an anathema to a fair trial which is one of the key fundamental rights provided to all litigants under Article 50 of the Constitution. Furthermore, it would be an abuse of the court process and contrary to the constitutional principles espoused in Article 159 that requires justice to be administered without delay, to allow a party to bring their action after inordinate delay, without any justifiable reason. The application is clearly an afterthought calculated to delay or derail execution of the decree herein. Our system of justice is adversarial in nature. The court should not be used to aid an indolent party under the tag of “interest of justice”. I think I have said enough to show that the application is untenable. The conduct of the defendant as explained above defeats the prayers sought. The defendant cannot go into slumber then wake up and expect the court to assist him without even explaining why he was asleep all that time.

Disposition 41. Consequently, I find that the application dated 4/9/2024 is devoid of merit. I proceed to dismiss it with costs to the plaintiff. The defendant reminds me of a Swahili proverb that goes, “sikio la kufa, halisikii dawa” (A deaf ear will not be cured with medicine).

DATED, SIGNED AND DELIVERED IN OPEN COURT AT MAKINDU THIS 27TH DAY OF MARCH, 2025. HON Y.A SHIKANDASENIOR PRINCIPAL MAGISTRATE.