Edis Sacco v Cherotich (Miscellaneous Civil Application E011 of 2025) [2026] KEHC 8108 (KLR) (9 June 2026) (Ruling)

Edis Sacco v Cherotich (Miscellaneous Civil Application E011 of 2025) [2026] KEHC 8108 (KLR) (9 June 2026) (Ruling) Neutral citation: [2026] KEHC 8108 (KLR) Republic of Kenya In the High Court at Bomet Miscellaneous Civil Application E011 of 2025 JK Ng'arng'ar, J June 9, 2026 Between Edis Sacco Applicant and Betty Cherotich Respondent Ruling 1.Through the Notice of Motion Application dated 5th December 2025, the Applicant sought the following orders: -I.Spent.II.Spent.III.That this Honourable Court be pleased to set aside the ex-parte proceedings of 6th October 2025, the Ruling of 17th November 2025 and the consequential orders thereof.IV.That the Applicant be granted unconditional leave to ventilate his Application dated 17th March 2025 through written submissions or alternatively orally before court. 2.The Application was brought under Order 12 Rule 7 of the Civil Procedure Rules and sections 3 and 3Aof the Civil Procedure Act. It was premised on the grounds on the face of the Application and further by the Supporting Affidavit sworn by J. Maritim on 5th December 2025. The Applicant’s case 3.The Applicant stated that he was instructed by the Respondent to file the Application dated 17th March 2025 in an attempt to seek justice on her behalf as she had been condemned by the lower court to pay illegal costs. That the Respondent was not notified in good time of the taxed costs meaning that the time within which the same could be challenged had lapsed. 4.It was the Applicant’s case that the matter was fixed for mention on 14th July 2025 to confirm whether he had filed its Replying Affidavit but the same was pushed to 6th October 2025 as there was no appearance by either party. That on 6th October 2025, the Respondent informed the court that she would not be filing submissions but relying on her Replying Affidavit. It was the Applicant’s further case that this court delivered its Ruling on 17th November 2025 which dismissed its Application dated 17th April 2025. 5.The Applicant stated that this court proceeded on 6th October 2025 and 17th November 2025 without confirming service of the relevant notices. The Applicant further stated that the Respondent allowed the court to close its case without written submissions and this denied her a chance to ventilate her case. 6.Through its written submissions dated 1st April 2026, the Applicant submitted that there was procedural illegality in the proceedings. That on 6th October 2025, the Applicant did not attend court as it was not informed of the date. The Applicant further submitted that the court did not give directions on how the Application would be disposed off. That the Applicant should have been allowed to ventilate its case by way of written submissions. Response 7.Through a Replying Affidavit dated 20th February 2026, the Respondent stated that before the Applicant filed his Application dated 17th March 2025, it had already paid and satisfied the taxed costs. That thereafter, the Applicant filed several Applications seeking to relitigate the matter. The Respondent further stated that the dismissal of the Applicant’s Application dated 17th March 2025 was lawful and proper and that there was nothing capable of being stayed once the decretal amount had been satisfied. That the Applicant sought to relitigate the matter through filing of submissions. 8.It was the Respondent’s case that the full payment of taxed costs was not disputed. That submissions were not evidence and could not contradict the factual position on record. It was the Respondent’s further case that the Application was incompetent, moot and ought to be dismissed. 9.Through her written submissions dated 17th April 2026, the Respondent submitted that there was no breach of rules of natural justice. That the right to be heard was not absolute. The Respondent further submitted that the e-filing system had enhanced procedural transparency and it allowed advocates to monitor their cases in real time. That the Applicant’s assertion of non-notification was untenable. 10.It was the Respondent’s submission that the failure to file submissions did not cause it prejudice. That a case ought to be proved by evidence. She relied on Nganga & another vs Owiti & another (2008) eKLR et.al. It was the Respondent’s further submission that the court was obligated to direct the filing of written submissions was untenable. That the court was satisfied that the material necessary for the determination of the Application was on record. 11.I have gone through the Notice of Motion Application dated 5th December 2025, the Replying Affidavit dated 20th February 2026, the Applicant’s written submissions dated 1st April 2026 and the Respondent’s written submissions dated 17th April 2026. The only issue I have sieved for my determination was whether this court should set aside the proceedings of 6th October 2025 and the subsequent orders. 12.It is trite law that the power of this court to set aside proceedings is discretionary and that such power ought to be exercised judiciously. 13.In this case, the Applicant avers that the proceedings of 6th October 2025 were unprocedural. That its advocate was not informed of the said date and the court did not issue directions on how its Application dated 17th March 2025 would be dispensed of. 14.I have gone back to the record and I have noted that the Notice of Motion Application dated 17th March 2025 was slated for a mention on 5th May 2025 where both parties failed to attend court. The matter was then set for mention on 3rd June 2025 where the Applicant failed to attend. The parties failed to attend court on the next mention date of 14th July 2025. On this date, the court directed that the matter be mentioned on 6th October 2025 and a mention notice was to be issued to both parties. 15.On 6th October 2025, the Applicant failed to attend but the Respondent attended. The Respondent informed the court that she had filed her Replying Affidavit and did not intend to file written submissions as she would be relying on her Replying Affidavit. The court set a Ruling date of 17th November 2025 where it delivered its Ruling dismissing the Applicant’s Application dated 17th March 2025. 16.The Applicant contended that it had not been informed of the mention date of 6th October 2025. It is a curious argument because both parties had failed to attend the previous mention date of 14th July 2025 and a mention notice was to be issued for their attendance on the next mention date (6th October 2025). The Respondent’s attendance on 6th October 2025 confirms to me that the mention date of 6th October 2025 was known and the only difference between the two parties was diligence. 17.I say so because as exhibited above, the Applicant was the prosecutor of his Application and it had exhibited indolence in prosecuting its Application as evidenced by several non-appearances in court, and not just on 6th October 2025. I also agree with the Respondent that with the advent of the e-filing system, advocates and parties had an avenue to monitor their cases. In the present case, with the knowledge of court practice and the additional option of the e-filing system, it was clear that the Applicant was indolent and not keen on prosecuting his Application. 18.In regards to the Applicant being denied a chance to ventilate his Application through written submissions, I agree with the Respondent that submissions were not evidence and that the court could rule or decide on the contents of the Application. The place of submissions was stated by the Court of Appeal in Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & another [2014] KECA 642 (KLR) where it held: -“Submissions cannot take the place of evidence. The 1st respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid. Such a course only militates against the law and we are unable to countenance it. Submissions are generally parties’ “marketing language”, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed, there are many cases decided without hearing submissions but based only on evidence presented.” (Emphasis mine) 19.Similarly, I find persuasion in Kenya Alliance Insurance Co. Ltd v Thomas Ochieng Apopa (suing as Administrator of the Estate of Pamela Agola Apopa) deceased [2020] KEHC 3120 (KLR) where Aburili J. held: -“My finding is that submissions are not evidence and cannot be substitute of pleadings or evidence adduced before a trial court. Before the trial court, the parties are expected to adduce credible evidence to establish/prove their respective assertions or contentions and the court is expected to analyze that evidence and arrive at a conclusion. Submissions however well-choreographed cannot take the place of evidence in a trial court, unlike before an appellate court where submissions take the place of arguments for or against the respective grounds of appeal.” (Emphasis mine) 20.In any event, this court had earlier ruled on 17th November 2025 that the issue between the parties had been resolved as the Applicant had satisfied the taxed costs, a position that the recipient/Respondent confirmed then and now in its Replying Affidavit dated 20th February 2026. It appears to this court that the Applicant was keen on relitigating this matter unprocedurally, something that this court frowns upon. 21.In the end, the Notice of Motion Application dated 5th December 2025 is dismissed. Each party to bear its costs. File is closed. RULING DELIVERED, DATED AND SIGNED AT BOMET THIS 9TH DAY OF JUNE, 2026.…………………………………….HON. JULIUS K. NG’ARNG’ARJUDGERuling delivered in the presence of:Siele/Susan (Court Assistants).N/A for the ApplicantMr Leteipa for the Respondent