https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4282

Mudavadi v Ochola & 2 others (Enviromental and Land Originating Summons 736 of 2017) [2026] KEELC 4282 (KLR) (8 June 2026) (Ruling) Neutral citation: [2026] KEELC 4282 (KLR) Republic of Kenya In the Environment and Land Court at Migori Enviromental and Land Originating Summons 736 of 2017 FO Nyagaka, J June 8, 2026 Between Claris K. Mudavadi Plaintiff and Raphael Oloo Ochola 1st Defendant Ezekiel Otieno Ochola 2nd Defendant Benson Olianga Ariar 3rd Defendant Ruling The Application 1.Before me is an application filed under Certificate of Urgency. It was dated 17th November 2025. It was brought under Order 10 Rules 10 and 11 and Order 51 Rule of the Civil Procedure Rules, 2010 as well as Sections 1A, 1B and 3A of the Civil Procedure Act. The applicant seeks orders that:a.…Spentb.…Spentc.This Honourable Court be pleased to vary and/or set aside the proceedings and orders issued on 21st October, 2025 and do set the application dated 15th September, 2025 for fresh hearing.d.The costs of this application be provided for. 1.The application was premised on the grounds set out on the face of the application as well as the grounds contained in the affidavit of Asenath Ogutu, learned counsel for the 3rd defendant/applicant. The basis the application is the Respondent/Plaintiff's counsel served the law firm of the Applicant/3rd Defendant with an application dated 15th September 2025 on 25th September 2025. The application is said to have been received by the secretary of the firm and she, unfortunately, filed it without bringing the fact of its service to counsel in conduct of the matter. Further, as a result, the matter was neither diarized nor acted upon.2.The applicant’s counsel further stated that she was only alerted by the 3rd defendant about the matter on 17th November 2025, after orders issued by this court on 21st October 2025 were served upon him. That applicant stated that the mistake of the secretary of the law firm representing him made it impossible for the advocates to respondent to the application, which he says to have been founded on a misrepresentation of facts.3.Moreover, the applicant stated that the Plaintiff/ respondent failed, ignored and neglected to inform this court that the 3rd respondent had obtained a court order from another matter, which allowed him to proceed with the process of eviction. The applicant stated that the plaintiff failed to disclose the true position of the matter hence misleading the court into allowing her application absent the 3rd defendant’s response to the application.4.The applicant relied on Article 159 of the Constitution as well as Section 1A and 3A of the Civil Procedure Act to seek the reinstatement of his application. He maintained that has an arguable case with high chances of success. He also maintained that reinstatement of the application would enable the court to hear and determine it on merit.5.Lastly, the 3rd defendant stated that there are germane issues of law and fact in that require urgent determination and the application had been brought promptly and therefore allowing it would serve justice to all the parties on priority basis.6.The affidavit deponed by the 3rd defendant’s counsel concerning the conduct of the matter at hand contains similar content as the grounds of the application as the application. I see no point replicating the same herein save I hereby add that counsel annexed several annexures to the affidavit. They include a copy of the court order impugned dated 16th December 2020, a copy of the application in issue and a draft Replying Affidavit allegedly sworn on 18th November 2025. The Response 7.The Plaintiff filed a Replying Affidavit sworn 27th November 2025. He deposed that the application was fatally defective, frivolous an afterthought and an abuse of court process in so far as it sought to set aside orders the applicant obtained after the plaintiff failed to take action in the matter. 8.The Respondent deponed further that the Supporting Affidavit was sworn by an advocate who was not a witness to the facts of the case thus contravening the principle that legal counsel should not depose to contested facts. The Plaintiff added that as such the affidavit was incompetent and invited the court to strike it off. 9.In addition to the foregoing, the Respondent deponed that the 3rd defendant acknowledged that service of the application in issue was made upon the firm advocates representing him but the said firm took no action despite the service. He dismissed the allegation that the application was filed away without being brought to the attention of counsel as a convenient excuse which the 3rd respondent had not proven. He added that the allegations had not been substantiated as the secretary alleged to have filed it had not sworn an affidavit confirming the allegations as true. Equally, he deponed that the 3rd defendant had not explained why the affidavit by the secretary could not be obtained. 10.Equally, the plaintiff deponed that the 3rd defendant had not shown any effort in following up on the matter since service was effected and the time the matter proceeded ex-parte. The plaintiff characterized this behavior as one that points to negligence, disinterest and indolence, and not a mistake that should be excused by the court. 11.The Respondent also deponed that the delay in bringing the application was inordinate, unexplained and inexcusable and that the orders sought should not be issued after the 3rd defendant sat back and ignored the proceedings only to spring back into action and seek to re-open the matter on flimsy grounds. In the same vein, the respondent added that the orders in question were regularly obtained and the applicant has not given any reasons why this court should exercise its discretion to set them aside. He concluded that the application had not met the threshold for setting aside ex-parte orders. Submissions 12.The application was canvassed by way of written submissions. The applicant filed his dated 15th December 2025. He identified two issues for determination, namely, whether the orders sought in the application should be granted, and who should bear the costs of the application. He maintained that there was an error on the part of his advocate’s secretary in retrieving the file from completed matters, failed to place the file before learned counsel in conduct of the matter but rather placed the file alongside completed matters files. He relied on Shah v Mbogoh [1968] E.A. 93 and Patel -vs- E.A. Carge Handling Services Ltd [1974] E.A. 75 to highlight the considerations courts should have when determining whether or not to exercise discretion to set aside ex-parte orders. The applicant urged the court to exercise its discretion and set aside the ex-parte orders of 21st October 2025 and allow the application dated 15th September 2025 to be heard afresh so that the he can defend himself. 13.On the issue of the allegation that the secretary alleged to have failed to bring to counsel’s attention the fact of the service of the application hence the non-attendance of the applicant, it was submitted that when employees working in a law firm commit an offense (sic), the offence becomes that of counsel, hence there was not need for the secretary to swear an affidavit confirming the allegations contained in counsel’s affidavit. 14.Reliance was placed on Belinda Murai & 9 Others v Amos Wainaina [1982] KLR 38 to emphasize that any person, including the court, can make a mistake and that such mistake should be pardoned in the interest of rendering justice to the parties. This position was supported by the citing Philip Chemowolo & Another v Augustine Kubede (1982) KAR 1036 when it was held that a mistake committed by a party should not make the party’s case not to be heard on merit, more so where such mistake can be compensated by way of damages. 15.In conclusion, the applicant submitted that his application raises triable issues and urged the court to exercise its discretion in his favour. 16.The respondent on the other hand filed his submission dated 8th January 2026. He set out the background of the instant application by stating that the he filed an application dated 15th September 2025, which application was unopposed. The applicant now failed to attend court on 21st October 2025 when the application was scheduled for hearing. The applicant filed the instant seeking to set aside to the ex-parte proceedings. 17.The Respondent identified two issues for determination, that is, whether the Applicant should be granted orders for stay of execution of ex-parte orders issued on 21/10/2025; and whether the court should vary or set aside its proceedings and orders issued on 21/10/2025 and set application dated 15th September, 2025 for fresh hearing. The respondent submitted that the applicant had not demonstrated that he would suffer substantial loss that he would suffer should the orders sought be granted. Equally, the respondent submitted that the applicant has failed to satisfy any overwhelming sufficient cause warranting stay of execution. He also submitted that the application was brought was brought in bad faith and after inordinate delay. He relied on Tabro Transporters Ltd vs Absalom Dova Lumbasi /2012/ eKLR to support this allegation. 18.As to whether this court should vary the proceedings and orders issued on 21/10/2025 and set application dated 15th September, 2025 for fresh hearing, the respondent submitted that the applicant had not met the threshold set for the exercise of this court’s discretion to set aside ex-parte orders. He relied on Shah v Mbogo (supra) to set out the factors to consider when exercising this discretion. 19.On the question of whether the applicant has established sufficient cause to warrant the setting aside of ex-parte orders, the respondent relied on Wachira Karani v Bildad Wachira [2016] eKLR as well as several other decisions to expound on the meaning of sufficient cause. According, sufficient cause would mean that the defendant was not to blame and that he or he was not negligent in his /her conduct. 20.The Respondent submitted that the applicant did not take action either by opposing the application in question or attend court despite service, which service is not disputed. The excuse that the secretary of the representing the applicant filed the application without diarizing the same was watered down on account of the fact that the alleged secretary did not swear an affidavit confirming the allegations. 21.Further, the respondent emphasized the duty of clients to check on the progress of their matters and added that a client, by virtue of agency, is bound by the actions of his/her advocate. 22.On the basis of the foregoing, the respondent urged the court the find that the applicant had not demonstrated sufficient cause to grant him the orders he sought and implored upon the court to dismiss the application with costs. Issues, analysis and determination 23.I have considered the application, the law and the parties’ submissions. The issues that arise for determination herein are; whether the instant application is merited; and who should bear the cost of the application 24.Following the conventional procedure of step by step resolution of a legal dispute which is by stating the issue, then the law, followed by the application of the law to the facts, and the concluding the matter, this court begins by stating the issue between the parties. The 3rd applicant seeks this court’s aid in setting aside ex-part proceedings and orders and prays that his application be heard anew. The issue he has is that his counsel’s secretary committed an error which was counsel’s and it should not be visited on him. 25.The law on setting aside ex parte orders is governed by Order 12 Rule 7 of the Civil Procedure Rules. It 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.” 26.Under the provision, the court has unfettered discretion to set aside an order it has made, if sufficient cause is shown by an Applicant. The principles governing setting aside such orders are well settled. In regard to that, in Shah v. Mbogo & another [1967] EA 116 the Court held thus:“I have carefully considered, in relation to the present Application, the principles governing the exercise of the court’s discretion to set aside a judgment obtained ex-parte. 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 a person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice.” 27.The power of a court to set aside an ex-parte orders is discretionary. The considerations that the court should bear in mind when faced with an application to set aside an ex parte order were elaborated in Esther Wamaitha Njihia & 2 others v Safaricom Limited, Civil Case No. 62 of 2011 where the court held that:“The principles governing the exercise of judicial discretion to set aside ex-parte judgments are well settled. The discretion is free and the main concern of the court is to do justice to the parties before it (See Patel –vs-E. A. Cargo Handling Services Ltd (1974) E. A. 75). The 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 cause of justice (see Shah –vs- Mbogo (1969) E. A. 116). The nature of the action should be considered, the defence if any should also be considered (emphasis added) 28.In Esther Wamaitha Njihia & 2 others v Safaricom Limited (supra), the court added that that the reason for not attending court should also be considered (emphasis added). 29.The High court in Wachira Karani v Bildad Wachira [2016] KEHC 6334 (KLR) noted that the court should be satisfied with ether one or two things, namely: that the applicant was not properly served with summons or the applicant failed to appear in court for sufficient reason. As to what constitutes ‘‘sufficient reason’’ the court noted that a valid excuse for the delay would suffice. 30.In Joyce Mwelu Mulani v Tabitha Nduku Mulani [2019] KEELC 3254 (KLR) the court held that it could not be swayed by sympathy so as to set aside ex-parte proceedings where no sufficient reason for the delay had not been given to account for delay in attending court. the court determined that: 12.The Defendant has the option of suing his advocate for damages. However, the court cannot act on sympathy to set aside proceedings where no sufficient cause or reason has been given why a party did not attend court. Such an action will not only delay the finalization of the suit but will also set a bad precedent. As was stated the jurists of the yonder years, justice must look both ways, and the rules of procedure are not meant to assist the indolent. 31.Turning to the instant application, there is no doubt that proper service of the application set to be reinstated was effected upon the applicant’s counsel. It was acknowledged by the applicant’s counsel. What remains to be done a determination of whether the excuse advanced by the applicant constitutes a sufficient cause as to warrant a stay of the ex-parte of proceedings/ orders that are now the subject of the instant application. 32.The applicant’s counsel deponed that, indeed, the application was served upon their law firm but the secretary did not diarize it and did not bring the fact of the said service to counsel’s attention. In his submissions, the applicant submitted that the there was an error in the retrieval of the file containing the application from among the completed files. He seemed to suggest that there was a possible mix-up whereby the file in question ended up being placed among completed files. These are two contradicting versions of how the alleged mix-up, if any, occurred. Be that as it may, I will proceed and analyze whether the alleged mix-up amounts to sufficient cause for the delay in responding to the already determination application and failed court attendance. 33.Although the applicant submitted that there was no need for the secretary alleged to have occasioned the error in filing of the relevant file hence the mix up in the advocate diary, I find that there was need for the said secretary to have sworn an affidavit to that effect. Absent this affidavit, the claims made remain mere allegations. The applicant has not discharged his burden of proof that this set of facts actually existed, as provided by Section 107 of the Evidence Act. Even so, the Advocate cannot simply shift the blame to an employee within her law firm with the hope of avoiding accountability, the back stopped with her to ensure that her client’s matters her handled with the diligence they deserve. 34.Of critical importance is the failure by counsel to annex a copy of the diary of the relevant dates when the alleged misdiarization took place and when the application was due for hearing yet it was not diarized. That omission or deliberate failure demonstrates something or fact the applicant had to hide from the knowledge of the Court 35.The applicant too cannot seek to rely on the alleged mistake of his counsel to avoid his responsibility of following on his matter. A party’s case is not an advocate’s. He has the responsibility to follow up the progress of his case frequently so much so that any slight delay is acted upon by the lawyer. If he delays o follow it up and it suffers delay such as a dismissal or other fate both he and his advocate bear the responsibility. A mistake of counsel as a good as that of the client. 36.The Supreme Court in Karinga Gaciari & 11 others v Ndege Kabibi Kimanga & another, Application No. E004 of 2023, emphasized that litigants, have an obligation to conduct due diligence on matters pertaining to their case and to personally follow up on their cases, whether or not represented by legal counsel and irrespective of their literacy. The court thus determined that:“ [9]Having Considered the application, affidavit in response and submissions filed, we now opine as follows:(i)...........(ii)) Whereas mistakes of an advocate ought not to be visited upon a litigant, there must be cogent and credible evidence, the applicants have not demonstrated any efforts or due diligence, through evidence or correspondence of the follow up with the Advocates or to pursue their rights as we found in George Kang’ethe Waruhiu v Esther Nyamweru Munene & another Civil Application No.18 of 2020 [2021] eKLR. It is not enough for a party to simply blame the advocates on record for all manner of transgressions. Courts have always emphasized that parties have a responsibility to show interest in and to follow up on their cases even when they are represented by counsel, and it does not matter whether the party is literate or not (emphasis added). 37.The above position was reiterated in Habo Agencies Limited v Wilfred Odhimbo Musingo [2015] KECA 987 (KLR), the Court of Appeal determined that a party cannot just blame his advocate for all manner of transgressions in the course of litigating his case since a litigant has the obligation of following up on his matters. The court expressed itself as follows:“It is not enough for a party in litigation to simply blame the advocate on record for all manner of transgression in the conduct of litigation. Courts have always emphasized that parties have a responsibility to show interest in and to follow up their cases even when they are represented by counsel.’’ 38.For the avoidance of doubt, it my considered view that time is crucial in the determination of suits. The Supreme Court in Salat v Independent Electoral and Boundaries Commission & 7 others (Application 16 of 2014) [2014] KESC 12 (KLR) empathized that:“Time is a crucial component in dispensation of justice, hence the maxim: justice delayed is justice denied. it is litigant’s legitimate expectation where they seek justice that the same will be dispensed timeously. Hence, the various constitutional and statutory timeframes within which matters have to be heard and determined.’’ 39.Notably, it is my finding that procedural timelines play a critical role in litigation and access to justice, and a party who is not diligent in prosecuting his matter should not benefit from the discretion of the court by seeking to have ex-parte orders and/ or proceedings set aside when he cannot satisfactorily explain why he did not attend court in the first place. Such a party cannot find refuge under article 159 of the constitution as was held by Kiage, J in Nicholas Kiptoo Arap Salat v Independent Electoral and Boundaries Commission & 7 others, Civil Appeal (Application) No. 228 of 2013, the Court of Appeal (Ouko JA as the then was) determined that:“I am not in the least persuaded that Article 159 of the Constitution and the oxygen principles which both command courts to seek to do substantial justice in an efficient, proportionate and cost-effective manner and to eschew defeatist technicalities were ever meant to aid in the overthrow or destruction of rules of procedure and to create an anarchical free-for-all in the administration of justice. This Court, indeed all courts, must never provide succour and cover to parties who exhibit scant respect for rules and timelines. Those rules and timelines serve to make the process of judicial adjudication and determination fair, just, certain and even-handed. Courts cannot aid in the bending or circumventing of rules and a shifting of goal posts for, while it may seem to aid one side, it unfairly harms the innocent party who strives to abide by the rules. I apprehend that it is in the even-handed and dispassionate application of rules that courts give assurance that there is clear method in the manner in which things are done so that outcomes can be anticipated with a measure of confidence, certainty and clarity where issues of rules and their application are concerned. (emphasis added)’’ 40.The learned judge Ouko JSC, in the same matter, Nicholas Kiptoo Arap Salat decision (supra), while emphasizing on the need for strict adherence to procedural timelines in litigation held that:“It ought to be clearly understood that the courts have not belittled the role of procedural rules. It is emphasized that procedural rules are tools designed to facilitate adjudication of disputes; they ensure orderly management of cases. Courts and litigants (and their lawyers) alike are, thus, enjoined to abide strictly by the rules. Parties and lawyers ought to be reminded that the bare invocation of the oxygen principle is not a magic wand that will automatically compel the court to suspend procedural rules. And while the court, in some instances, may allow the liberal application or interpretation of the rules that can only be done in proper cases and under justifiable causes and circumstances. That is why the Constitution and other statutes that promote substantive justice deliberately use the phrase that justice be done without “undue regard” to procedural technicalities (emphasis added)’’. 41.Regarding the objection that the supporting affidavit was sworn by the Applicant’s counsel, this court will repeat a few excerpts by the Court of Appeal over acts of similar nature. In Ibrahim & another v Zumzum Investment Limited & another (Civil Application E058 of 2024) [2024] KECA 862 (KLR), Odunga JA while addressing a similar objection, stated as follows :-“The first objection taken by the 1st respondent is that the affidavit in support of the application is incompetent, having been sworn by an advocate in respect of contested issues. This objection is based on rule 9 of the Advocates Practice Rules which provides that: No advocate may appear as such before any court or tribunal in any matter in which he has reason to believe that he may be required as a witness to give evidence, whether verbally or by declaration or affidavit; and if, while appearing in any matter, it becomes apparent that he will be required as a witness to give evidence whether verbally or by declaration or affidavit, he shall not continue to appear: Provided that this rule does not prevent an advocate from giving evidence whether verbally or by declaration or affidavit on formal or non- contentious matter of fact in any matter in which he acts or appears”. 42.The learned Judge of Appeal explained the import of Order 18 Rule 2 as follows:“The general rule is that advocates should not swear affidavits in contested matters. Where the client is available to swear to the disputed facts, the depositions in the affidavit of the advocate, may amount to hearsay unless their sources and grounds for belief are disclosed. More importantly, an advocate who swears an affidavit in contested matters potentially exposes himself to playing the role of both advocate and witness should they be called upon to take the witness stand in order to be cross-examined on the said affidavits. That was the opinion in the case of Magnolia Pvt Limited Vs Synermed Pharmaceuticals (K) Ltd (2018) eKLR in which advocates were cautioned from swearing affidavits on their clients’ behalf, the court stating that: “Whereas there is nothing barring an advocate from swearing an affidavit in appropriate cases, where the matters deponed to are agreed or on purely legal positions, advocates should refrain from the temptation of being the avenue through which disputed facts are proclaimed. The rationale for the said principle is to insulate the advocate, an officer of the court, from the vagaries of litigation which, on occasions may be very unpleasant. By swearing an affidavit on such issues an advocate subjects himself to the process of cross-examination thus removing him from his role of legal counsel to that of a witness, a scenario which should be avoided like plague. In my view, however innocent an averment may be, counsel should desist from the temptation to be the pipe stem through which such an averment is transmitted.” 43.In concluding, in the matter, learned Judge stated that:“This Court in Pattni v Ali and Others [2005] 1 EA 339; [2005] 1 KLR 269 held that: “Whereas it is right that advocates should not swear affidavits on behalf of their clients when their clients are readily available to do so as this accords with the spirit of the best evidence rule and in view of the provisions of Order 18 rule 2, with common sense and it would be embarrassing to apply those provisions to an advocate who may have to relinquish his role as one to become a witness, there is otherwise no express prohibition against an advocate who on his own knowledge can prove some facts, to state them in an affidavit on behalf of his client. So too an advocate who cannot find his client but has information, the sources of which he can disclose and state the grounds for believing the information.” 44.In the present case, it is not in dispute the learned counsel deponed to facts in support of the application herein. The fact of the alleged mix up in regard to the service and failure to diarize it and attend court were facts within the law firm, particularly, the secretary alleged to have committed the error. The applicant himself could not have such knowledge. It was upon his counsel to bring the facts to the fore through an affidavit hence the deposition by counsel was, in my humble view, proper, but it did not measure to the required standard of proof of a balance of probabilities, particularly, given that there were two versions of hiw the mix up occurred. 45.Lastly, the court has considered the response in form of the annexed draft relying affidavit. It finds that the same did not contain enough substance as to have raised sufficient opposition to the previous application sought to be reinstated. 46.The upshot is that the Applicant has not demonstrated sufficient cause for the failure and delay in prosecuting his dismissed application. Thus, his prayer to have the proceedings and order of 21st October, 2025 set aside is hereby declined. 47.On the issue of costs, the applicant to bear the same. 48.It is so ordered. RULING DATED, SIGNED AND DELIVERED VIRTUALLY VIA THE TEAMS PLATFORM THIS 8TH DAY OF JUNE 2026.HON. DR. IUR NYAGAKAJUDGEFrom 11:35 AM, in the presence of,Mr. Mboya for the ApplicantMr. Owino for the Respondent