https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3658

**** **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT MILIMANI LAW COURTS, NAIROBI** **ELC 375 OF 2015** **BAWAN LIMITED...…………..……….…...……………....…..….….…1ST PLAINTIFF** **WISHBONE LIMITED……………………………………..……….…...2ND PLAINTIFF** **-VERSUS-** **KENYA URBAN ROADS AUTHORITY……….……..…….………..1ST DEFENDANT** **COUNTY GOVERNMENT OF NAIROBI……..….….…………….2ND DEFENDANT** **RULING** **Background** 1. The application before this court is the one dated 25th February 2026 by the 1st Defendant which seeks the following orders;- 2. **Spent** 3. **THAT** this Honourable Court be pleased to set aside the proceedings of 11th November, 2025 and order that the matter proceeds for hearing Je novo. 4. **THAT** in the alternative, the Plaintiff's witness be recalled for cross examination by the 1st Defendant and the 1st Defendant’s case be re-opened to allow the 1st Defendant to tender its defence against the Plaintiff's claim. 5. **THAT** this Court be pleased to grant leave to the 1st Defendant to file its list and bundle of documents and list of witnesses and witness statements out of time. 6. **THAT** this Honourable Court be pleased to stay/halt the delivery of its judgment set for 16th April, 2026. 7. **THAT** the costs of this application be provided for. 8. The Motion is based on the grounds outlined on the face of it and the Supporting Affidavit sworn by Beatrice Mathenge. The Applicant asserts that the hearing proceeded ex parte on 11th November 2025 which hearing date was not served upon her as it was taken in court in the absence of representation of the 1st Defendant. She further deponed that during the hearing, the Plaintiff had relied on an amended witness statement and further supplementary list of documents that had not been served on the Applicant. That the Applicant was not accorded an opportunity to interrogate the said documents and further file its own witness statements which is highly prejudicial to it. That further the Applicant had exchanged counsel on record and the current counsel had not been appraised by the previous counsel on record and hence made following up on the matter a bit difficult for the applicant. He urgues that the mistake of Counsel should not be visited on the litigant as an innocent litigant and contends that allowing the application would not occasion any prejudice to the Plaintiff 1. The Plaintiff/Respondent filed a Replying Affidavit in opposition to the Applicant’s application sworn by James K. Muthui. The Plaintiff asserted that the Applicant’s claim of being unaware of the hearing date of 11th November 2025 was unfounded, as the date was taken in open court when the matter came up for mention on 2nd October 2025.He further deponed even if that was the case, the grounds raised were not sufficient enough to reopen the case as the applicant had been given several opportunities to file its pleadings but had failed to do so. That the negotiations to try settle the matter out of court having failed, the applicant was required to comply which they did not. The Respondents argue it would be unjust for the Court to burden the Respondents with the consequences of the deliberate actions of the applicants to fail to follow up and participate in the hearing of 11th November 2025 which if application is allowed would be prejudicial to them considering it is an old matter. 2. The application was canvassed by way of Written Submissions. The Applicants submissions are dated 21st April 2026 while those of the Respondents are dated 29th April 2026. 3. The Applicant reiterated the arguments in their application, and further affidavits indicating that there was an error apparent on the face of record. That the court proceeded with the hearing of the matter ex parte on the 11th November, 2025 on the mistaken belief that the hearing date had been fixed by consent in court on 2nd October, 2025 in the presence of all the parties which fact was not correct as the 1st Defendant and its Counsel was not present on that date. Counsel relied on the case of **Shah Vs Mbogo [1967] EA 116** indicating that it highlighted the principles in setting aside ex parte orders. The applicant further relied in the case of **Bouchard International (Services) Ltd Vs Philip Nzioki M'Mereria (1987) KECA 75 (KLR)** 1. The Respondent submitted that the Applicant had not met the threshold required for setting aside of proceedings to reopen the mater being that they had failed to demonstrate sufficient cause. Counsel relied on the case of **Wachira Karanja vs Bildad Wachira [2016] KEHC 6334 (KLR)** where the court defined sufficient cause and indicated that a party must prove to have not acted in any negligent manner. Counsel also relied in the case of n **Epco Builders Limited Vs Kabuito Contractors Limited (Civil Suit 422 of 2009) [2025] KEHC 8999 (KLR**) where the court indicated that the discretion to set aside proceedings by the courts should be exercised judiciously **Analysis and determination** 1. I have reviewed and considered the application, the Supporting Affidavit and the Replying Affidavit and I have also considered the submissions made on behalf of the parties. The singular issue for determination is whether the Applicant has sufficiently explained and/or offered a reasonable explanation for its non attendance on 11th November 2025 when the suit was heard to warrant the Court to exercise its discretion in his favour and set aside the proceedings of the day and to have the suit heard de novo. 2. The applicant has submitted that they were not in court when the hearing date was taken on the 2nd October 2025.I have perused the said file and do note that the quorum captures that the 1st defendant was unrepresented. The plaintiff being present in court was obligated to serve the hearing notice to counsel for the defendant which evidence of such service has not been tendered in this court However, I have perused the proceedings of this court and from the record of the Court, it is evident the 1st Defendant hardly attended Court despite them being aware of the said mention and hearing notices as evidenced by the affidavits of service by the Respondent. And notably when matter was in court on the 12th June 2025 for mention the 1st Respondent was represented and the mention date for the 2nd October 2025 was taken. Counsel failed to appear on the said 2nd October and the hearing date for the 11th November 2025 was taken. 1. The Applicants have further argued that the Plaintiff/Respondent relied amended witness statement dated 30th September 2025 and further list of documents dated 1st October 2025 and 6th November 2025 which had not been served upon them and that the hearing proceeding ex parte denied them an opportunity to interrogate the said documents. That further they have been denied an opportunity to file their witness statement and list of documents. 2. Court record do indicate that the court has on several occasions ordered for the parties to comply and file their documents in readiness for hearing. The court granted both the Plaintiff and respondent several adjournments on this matter and the delay in prosecuting the same can be attributed to both parties. The applicant’s claim of not being accorded time to file it pleadings due to the negotiations cannot be a valid ground to grant of orders sought. The matter has been in court since 2025 and there being negotiations or not, the 1st Respondent was obligated to comply with the provisions of **Order 11 of the Civil Procedure Rules.** The Applicant has only filed this application after coming to the knowledge that there is an impending judgement. 3. In my view the Applicants have not given sufficient ground for the reopening of the case and allowed to be heard on their case. It appears the 1st Defendant/Applicant may not have been diligent as it should have been in the pursuit of its case which allowed the counsel previously handling the matter be lax in his handling of the matter. However, having noted as above, I take the view that procedural deficiencies should not override substantive justice. The prayers sough for leave to file the witness statement and list of bundles documents necessarily invites the Court to exercise its discretion in a manner that will include reopening the. 4. Further, any prejudice that may be occasioned to the Plaintiff/Respondent can be adequately cured. The Respondent will have an opportunity to respond to the additional documents, including recalling witnesses for purposes of cross-examination, if necessary. The Court finds that in the circumstances of this case, the appropriate approach would be to allow the application, since the Respondent, if they choose to do so, will still have the opportunity to cross examine the Applicants on the new evidence. In the premises, guided by the Supreme Court decision **Mahamud Vs Mohamad & 3 others (Petition 7 & 9 of 2018 (Consolidated) [2018] KESC 62 (KLR) (28 September 2018) (Ruling),** that the right to be heard includes the right to adduce evidence to support its case, I will exercise my discretion and allow the application. Other than a delay in the finalization of the matter, I do not consider that the Plaintiff will suffer any prejudice. In the premises I exercise my discretion in favour of allowing the Applicant’s Notice of Motion application dated 26th February 2026. **Final disposition** In the foregoing I make the following orders; 1. The proceedings of 11th November 2025 are hereby set aside and direct that the hearing shall start de novo. 2. The 1st Defendant is hereby granted leave to file and serve its witness statement and bundle of documents within 15 days from the date of this Ruling. 3. The Plaintiff/Respondent is granted leave to file any supplementary documents and/or witness statements, if necessary, within 14 days of service. 4. The Plaintiff/Respondent shall have liberty to recall any witness or cross-examine on the additional documents. 5. The Plaintiffs is awarded throw away costs of Kshs 100,000/- for the application which should be paid within 30 days from the date of this Ruling. **It is so ordered.** **DATED**, **SIGNED** and **DELIVERED** virtually at **NAIROBI** on this **15th** day of **June 2026.** **MOHAMMED N. KULLOW** **JUDGE** **Ruling delivered in the presence of: -** **Ms. Nyangweso** for the Plaintiffst **Ms. Mathenge** for the Defendants **Philomena W** Court Assistant