https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12905

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MERU** **HCCA NO. E068 OF 2021** **FRANKLINE KITHINJI---------------------------------------------APPELLANT** **VERSUS** **JAMES MWENDA KIMATHI *(Suing as legal representative of the estate*** **of PURITY KENDI MAURU *alias*** **PURITY KENDI JULIUS (deceased)-------------------------1ST RESPONDENT** **AMOS MUTWIRI------------------------------2ND RESPONDENT/APPLICANT** **PATRICK MWENDA KITHINJI-----------------3RD RESPONDENT/APPLICANT** **RULING** 1. This matter comes up for ruling on the application dated 24th November 2025, filed by the 2nd and 3rd Respondents, and which seeks the following orders; 2. Spent. 3. The judgment herein, signed, dated and delivered on the 18th February 2025 be set aside. 4. The applicant be granted leave to file their submissions out of time. 5. That this honorable court do grant any other or further relief it may deem just and expedient in the circumstances. 6. The application is anchored by the supporting affidavit sworn by one Stephen Kaume Akwalu sworn on even date. 7. It is contended that the applicants seek the orders to set aside this court’s judgment and be granted leave to file their submissions for the reasons that they were not present in court on the date this court directed parties to file submissions and that no mention and/or hearing notice was ever served upon them to inform them of any upcoming court attendance. 8. The applicants further contend that the failure to file submissions was not intentional or deliberate but was due to lack of knowledge of the court’s directions. 9. For the foregoing reasons, the applicants contend that if the orders sought are not granted, they will have been condemned unheard. 10. The appellant filed his replying affidavit sworn on the 4th February 2026. He avers that the reasons advanced by the applicants for failure to file their submissions as directed by the court are untenable excuses and an abuse of the court process. 11. The appellant proceeded to annex an extract of the Judiciary E-filing portal which indicates that directions to file submissions were issued on the said portal on the 12th April 2024. It is averred that if the applicants were diligent enough, they ought to have gotten the said directions without the need to await service. 12. Further, the appellant contends that he served a mention notice to the firm of Mwenda Mwarania, Akwalu Advocates who are on record for the Applicants informing them that the matter had been fixed for mention on the 17th October 2024. The appellant proceeded to annex the said mention notice and the corresponding affidavit of service which was filed to that effect. 13. The 1st respondent similarly filed a replying affidavit sworn by Carlpeters Mbaabu on the 5th February 2025. 14. In his response, the deponent supports the appellant’s contention that the applicants ought to have checked the status of the appeal and/or any directions given in the Judiciary E-filing portal. 15. He further contends that the subject judgment was delivered on the 18th February 2025 and that the applicants have moved this court after 9 months, which amounts to inordinate and inexcusable delay. 16. All parties filed their written submissions and this court has had the advantage of looking at them. 17. Having considered the application and the supporting affidavit, the responses by the parties, the supplementary affidavit by the applicants and the submissions by the parties, I find the only issue is whether or not the orders sought should be granted. 18. Order 42 Rule 23 of the Civil Procedure Rules provides as follows; **Re-hearing on application of respondent against whom *ex parte* decree made.** **Where an appeal is heard *ex parte* and judgment is pronounced against the respondent, he may apply to the court to which the appeal is preferred to re-hear themappeal; and if he satisfies the court that the notice was not duly served or that he was prevented by sufficient cause from appearing when the appeal was called on for hearing, the court shall re-hear the appeal on such terms as to costs or otherwise as it deems fit.** 1. A plain interpretation of this provision is that the orders sought are discretional upon the court being persuaded that the reasons given are sufficient. The same grounds that apply to an ordinary judgment apply herein. 2. Therefore, if the court is one hand to find that indeed the applicant was not aware of the date in court and the directions given on 30th September 2024, then the judgment will be set aside *ex debito jusitiae*. 3. If on the other hand the court finds that service was done, then the matter calls for the discretion of the court. Regarding such discretion, in **Shah vs Mbogo (1967) EA 166**, the court held as follows; **“Firstly, there are no limits or restrictions on the judge’s discretion to set aside except that if the judge 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 to fetter the wide discretion given to it by the rules. Secondly, the discretion to set aside is intended, to be so exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but not designed to assist the person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice.”** 1. Having perused the application, it is evident that the main reason advanced by the applicants is the issue of service of either a mention or a hearing notice. 2. The court record bears an affidavit of service dated 1st October, 2024, in which the mention notice of 17th October 2024 was duly served on the advocate for the applicant. There is an acknowledgement of service on the face of the notice itself. 3. It is also evident that there was no appearance by the applicants nor their respective advocate on that date of 17th October 2024. 4. It is thus incorrect for the applicants to state that they were unaware of the date. Therefore, the judgment was not irregularly obtained. 5. Are there reasons given by the applicants to warrant a grant of the orders. 6. An applicant who comes to court has a duty to be candid. The applicants are not, despite the glaring evidence that their advocate was duly notified of the mention date of 17th October 2024. 7. Further, there is no reasonable explanation for the delay of 9 months that lapsed before the applicant brought this application. Judgment was delivered on 18th February, 2025 and was duly uploaded on the Case Tracking System. The advocate for the applicants was already mapped to the case so he must have received the notification. The applicants only moved the court on 24th November 2025. 8. From the foregoing, first, I am not persuaded by the reasons advanced by the applicants and second, I find that the 9 months that lapsed amount to inordinate delay. 9. Even if I was to give the applicants a listening ear, I do not think that there are grounds to convince me to re-open the case. 10. In my understanding, the applicants are implying that if they are allowed to file their submissions, this court would change its mind and deliver a judgment favorable to them. 11. The role of submissions in court was discussed in **Attorney General v Mohamed & another [2024] KEHC 8474 (KLR)** where it was held as follows; ***“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 endeavoring 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.”*** 1. Without being seen as treating submissions by parties with indifference, I am not persuaded that the evidence tendered in the trial court and its probative value would be altered merely because their submissions are on record or not. 2. Having carefully considered the application, the responses and the submissions by the parties, I find that the instant application is devoid of merit and the same is dismissed with costs. 3. It is so ordered. **Dated, signed and delivered at Meru this 5th day of August, 2026.** **H. M. NYAGA** **JUDGE**