https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9036

Gathiga & 2 others (As Officials of Murang’a Farmers Union) v Mugumoini Farmers Company Ltd (Civil Appeal E068 of 2023) [2026] KEHC 9036 (KLR) (18 June 2026) (Judgment) Neutral citation: [2026] KEHC 9036 (KLR) Republic of Kenya In the High Court at Murang'a Civil Appeal E068 of 2023 S Mbungi, J June 18, 2026 Between Francis Ngone Gathiga 1st Appellant Stanley Munene 2nd Appellant John Irungu 3rd Appellant As Officials of Murang’a Farmers Union and Mugumoini Farmers Company Limited Respondent (Being an appeal against the ruling of Hon. S. Mwangi – Senior Resident Magistrate delivered in Murang’a Chief Magistrate’s Court Civil Suit No. 178 of 2017 on 9th August 2023) Judgment Background 1.This appeal arises from Murang’a Chief Magistrate’s Court Civil Suit No. 178 of 2017, in which the respondent, Mugumoini Farmers Company Limited, sued the appellants vide a plaint dated 30th January 2017 for recovery of Kshs. 7,000,000/=, interest and costs. The respondent’s claim was that part of the purchase price arising from the sale of properties known as Plot Nos. 416 and 417, measuring approximately twenty acres, had been deposited into an account opened at Murang’a Farmers Union without the respondent’s authority or resolution, and had not been remitted to the respondent company. 2.The appellants filed their respective defences denying the claim. However, during the hearing of the suit, the appellants and their counsel failed to attend court. The trial court, being satisfied that there had been service of the hearing notice, allowed the respondent to proceed with its evidence. The respondent called its witnesses, whereafter the appellants’ case was deemed closed for non-attendance. 3.In a judgment delivered on 28th September 2022, the learned trial magistrate entered judgment in favor of the respondent against the appellants jointly and severally for Kshs. 7,000,000/-, interest from 12th July 2015 and costs. 4.Following that judgment, the appellants moved the trial court by an application dated 4th October 2022 seeking, inter alia, to set aside the ex parte judgment and to be granted leave to present their defence. The application was heard and, by a ruling delivered on 21st December 2022, the learned trial magistrate exercised discretion in favor of the appellants by setting aside the judgment on condition that the appellants pay throw-away costs of Kshs. 30,000/- before the next hearing date, failure of which the conditional orders would lapse and the respondent would be at liberty to proceed with execution. 5.The matter was thereafter fixed for hearing on 18th January 2023. The respondent’s position is that the appellants were served with the hearing notice and were also notified of the requirement to pay the throw-away costs ordered on 21st December 2022. The appellants did not attend court on 18th January 2023 and had not paid the said throw-away costs. Consequently, the conditional orders issued on 21st December 2022 lapsed, the judgment delivered on 28th September 2022 was reinstated, and the respondent was permitted to proceed with execution. 6.The appellants then filed the application dated 25th January 2023 seeking reinstatement of the orders of 21st December 2022. They contended, in substance, that their failure to attend court and comply with the earlier conditional orders was not deliberate and that they ought not to be shut out from defending the suit. Upon considering the application, the learned trial magistrate dismissed it by the ruling delivered on 9th August 2023. It is that ruling, declining to reinstate the conditional orders of 21st December 2022, which forms the subject of the present appeal. 7.Aggrieved by the said ruling, the appellants lodged the present appeal, anchored on the following grounds:a.That the learned trial magistrate erred in law and fact by dismissing the Appellants’ application, thereby disregarding the natural principle of litigation that no man should be condemned unheard.b.That the learned trial magistrate erred in law and fact by disregarding the principles governing the setting aside of interlocutory judgment and thereby exercised her discretion wrongly.c.That the learned trial magistrate erred in law by failing to appreciate that the appellants had been deprived of an opportunity to be heard.d.That the learned trial magistrate erred in law by failing to appreciate the jurisdiction conferred upon the court on an application seeking to set aside an ex parte judgment.e.That the learned magistrate’s ruling and orders were against the weight of evidence, fairness and the need to dispense justice. 8.Consequently, the appellants prayed that the appeal be allowed, the orders made on 9th August 2023 be set aside and in lieu thereof an order be made setting aside the judgment entered on 28th September 2022 with costs to the appellant. 9.The appeal was canvassed by way of written submissions. On record are submissions by the appellants dated 30th July 2025 and submissions dated 3rd October 2025, filed by the respondent. Appellants’ submissions 10.On whether the learned magistrate erred by dismissing the appellants’ application dated 25th January 2023, the appellants submitted that the court adopted an unduly technical approach and failed to appreciate that the right to be heard is a fundamental tenet of natural justice. They argued that Article 50 of the Constitution guarantees every party the right to have a dispute determined in a fair and public hearing before an independent and impartial court or tribunal. In support of that proposition, the Appellants relied on Sangram Singh v Election Tribunal, Kotah AIR 1955 SC 664, where the Supreme Court of India emphasized that a party should not be condemned unheard and that proceedings affecting a person’s rights should not continue in his absence where he has not had a proper opportunity to participate. 11.The appellants further submitted that the learned magistrate failed to appreciate that the application before her was not frivolous, but raised bona fide grounds deserving the court’s intervention. They argued that they had previously moved the court to set aside the judgment entered against them, and that the court had, on 21st December 2022, allowed the application on condition that they pay throw-away costs of Kshs. 30,000/- before the next hearing date, failing which the conditional orders would lapse. The appellants’ position was that they were not aware of the orders issued on 21st December 2022, nor were they served with a hearing notice for 18th January 2023. They submitted that, upon learning that the matter had proceeded in their absence on 18th January 2023, they promptly filed the application dated 25th January 2023 seeking reinstatement of the orders of 21st December 2022. 12.On whether the learned magistrate erred by overlooking the explanation advanced in support of the application, the appellants submitted that their failure to attend court was attributable to counsel’s mistake and not to any deliberate conduct on their part. It was argued that counsel had explained that he encountered internet connectivity challenges on 21st December 2022 and was therefore unable to join the virtual court session. Counsel further averred that he was unaware of the hearing date of 18th January 2023 and only learnt of the same after the matter had proceeded. The appellants submitted that mistake of counsel should not be visited upon an innocent litigant where the result would be to shut the litigant out from being heard. They relied on Philip Keipto Chemwolo & Another v Augustine Kubende [1986] eKLR, where the Court of Appeal emphasized that unless there is fraud or intention to overreach, an error by counsel should not necessarily bar a party from being heard on the merits. 13.On whether the court had jurisdiction to intervene, the appellants submitted that Order 42 Rule 26 of the Civil Procedure Rules empowered the appellate court to set aside the trial court’s order and call for a fresh trial where justice so demands. They also invoked Articles 50 and 159 of the Constitution and sections 1A, 1B and 3A of the Civil Procedure Act, arguing that the court was enjoined to administer substantive justice and to prevent a party from being locked out of the seat of justice on account of procedural default. 14.The appellants further submitted that the learned magistrate misdirected herself by giving undue weight to the respondent’s decree and execution process while failing to consider that the appellants had a defence raising triable issues. They maintained that the respondent’s claim was heard in their absence, that the respondent’s witnesses were not cross-examined, and that the appellants were condemned to pay Kshs. 7,000,000/-, interest and costs without being afforded an opportunity to challenge the evidence and prayed that the appeal be allowed so that the matter may be heard and determined on the merits. Respondent’s Submissions 15.The respondent opposed the appeal and submitted that the appellants were not denied the right to be heard. According to the respondent, the record showed that the appellants were accorded several opportunities to participate in the proceedings but failed to utilize them. The respondent submitted that the present appeal was an attempt to re-open a matter in which the appellants had repeatedly failed to attend court despite service. 16.On whether the appellants were condemned unheard, the respondent submitted that the appellants were duly served with a hearing notice for 3rd August 2022 but failed to attend court. That the trial court, being satisfied as to service, allowed the hearing to proceed and thereafter delivered a judgment on 28th September 2022. That the appellants subsequently filed an application dated 4th October 2022 seeking to set aside the ex parte judgment; which application was heard, and on 21st December 2022 the trial court exercised discretion in the appellants’ favor by setting aside the judgment on condition that the appellants pay throw-away costs of Kshs. 30,000/- before the next hearing date, failing which the conditional orders would lapse and the respondent would be at liberty to proceed with execution. The respondent contended that, notwithstanding that indulgence, the appellants again failed to attend court on 18th January 2023 and failed to pay the throw-away costs as ordered. It was therefore submitted that the reinstatement of the judgment and the dismissal of the subsequent application dated 25th January 2023 were consequences of the appellants’ own non-compliance and indolence. 17.On the right to be heard, the respondent relied on Union Insurance Co. of Kenya Ltd v Ramzan Abdul Dhanji Civil Application No. Nai. 179 of 1998, where the Court of Appeal held that while the right to be heard is a basic natural justice concept, it is sufficient if a party is given a reasonable opportunity to be heard; if that opportunity is not utilized, the party may only be heard to explain why he failed to make use of it. 18.On whether sufficient cause had been shown, the respondent averred that setting aside the orders made on 18th January 2023 was not available as a matter of right, but depended on the court’s discretion being exercised upon proof of sufficient cause, which had not been shown by the appellants, and prayed that the appeal be dismissed with costs. Analysis and Determination 19.This being a first appeal, this Court has the duty to analyze and re-examine the evidence adduced in the lower court and reach its own conclusion but bear in mind that it neither saw nor heard the witnesses testify and make due allowance for the said fact. In Gitobu Imanyara & 2 Others -vs- Attorney General [2016] eKLR, the Court of Appeal stated thus: -“An appeal to this court is by way of a retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.” 20.I have carefully considered the record of appeal, the impugned ruling, the proceedings before the subordinate court, the grounds of appeal and the rival submissions filed by the parties. 21.In my view, the central issue arising for determination is whether the appellants were accorded a fair opportunity to be heard before the trial court and, consequently, whether the learned trial magistrate erred in declining to reinstate the conditional orders issued on 21st December 2022. 22.The appellants contend that they were denied their constitutional right to be heard and that the learned trial magistrate ought to have exercised her discretion in their favor by reinstating the conditional orders that had previously set aside the ex-parte judgment. The respondent, on the other hand, maintains that the appellants were accorded sufficient opportunities to participate in the proceedings but repeatedly failed to take advantage of those opportunities. 23.The record shows that the suit was scheduled for hearing on 3rd August 2022. The trial court was satisfied that the appellants had been served with the hearing notice. Neither the appellants nor their advocate attended court on that date and, consequently, the respondent was permitted to proceed with its case. Judgment was thereafter delivered on 28th September 2022 in favor of the respondent. 24.Following the delivery of the judgment, the appellants filed an application dated 4th October 2022 seeking, inter alia, the setting aside of the judgment and leave to defend the suit. The trial court considered the application and, in a ruling delivered on 21st December 2022, exercised its discretion in favor of the appellants by setting aside the judgment. The indulgence, however, was conditional upon the appellants paying throw-away costs in the sum of Kshs. 30,000/- before the next hearing date, failing which the orders would automatically lapse. 25.Of significance is the fact that the proceedings of 30th November 2022 show that learned counsel then appearing for the appellants, Mr. Gakaria, was present in court when the ruling date of 21st December 2022 was fixed. The appellants were therefore aware, through their advocate, of the date on which the ruling would be delivered. While counsel subsequently attributed his absence on the date of the ruling to internet connectivity challenges, no satisfactory explanation was offered as to why no effort was made thereafter to promptly ascertain the outcome of the ruling or the directions that had been issued by the court. 26.The record further shows that after the ruling of 21st December 2022 was delivered, counsel for the respondent communicated the contents thereof to the appellants' advocates and demanded payment of the throw-away costs ordered by the court. The appellants were also served with a hearing notice for 18th January 2023. Notwithstanding that notification, they neither complied with the condition requiring payment of throw-away costs nor attended court on the scheduled hearing date. 27.The consequence of such non-compliance had been expressly stipulated in the ruling of 21st December 2022. The learned trial magistrate had made it clear that failure to pay the throw-away costs before the next hearing date would result in the lapse of the conditional orders. It follows that the events that transpired on 18th January 2023 were not unforeseen or arbitrary but were the direct consequence of non-compliance with conditions that had been clearly communicated to the appellants. 28.The appellants have anchored their grievance on the right to a fair hearing guaranteed under Article 50(1) of the Constitution. There can be no dispute that the right to a fair hearing is one of the most fundamental rights protected by the constitution. However, the right does not operate in isolation from the obligation imposed upon litigants to diligently prosecute their cases and to comply with lawful court orders. 29.In Alphonse Kondi Riaga v Commissioner for Cooperative Development [2016] eKLR, the court, citing Union Insurance Co. of Kenya Ltd v Ramzan Abdul Dhanji, Civil Application No. Nai. 179 of 1998, stated that:“The law is not that a party must be heard in every litigation. The law is that parties must be given a reasonable opportunity of being heard and once that opportunity is given and is not utilized, then the only point on which the party not utilizing the opportunity can be heard is why he did not utilize it.” 30.Similarly, In Ibrahim Mungara Mwangi v Francis Ndegwa Mwangi [2014] eKLR, the court, citing Snell’s Equity, 31st Edition, held thus:“The court of equity has always refused its aid to stale demands where a party has slept upon his rights and acquiesced for a great length of time. Nothing can call forth this court into activity but conscience, good faith and reasonable diligence.” 31.The principle emerging from the above cited decisions is that what the law guarantees is not an unlimited right to be heard irrespective of a party's conduct, but a reasonable opportunity to be heard. Once such opportunity is afforded, a litigant bears the responsibility of utilizing it. A party who fails to do so cannot subsequently blame the court for the consequences of his own inaction. 32.In the present case, the appellants were afforded more than one opportunity to present their case. They failed to attend the hearing that culminated in the judgment of 28th September 2022. Despite that failure, the trial court nonetheless exercised its discretion generously by setting aside the judgment and granting them a second opportunity to defend the suit. Even then, they failed to comply with the condition imposed by the court and failed to attend court on 18th January 2023. 33.Courts exist to administer justice to all parties and are enjoined to facilitate the just, expeditious and efficient determination of disputes. The constitutional guarantee of a fair hearing cannot be invoked to excuse indolence or to justify repeated disregard of court directions. Litigation must, at some point, come to an end and parties who have been accorded reasonable opportunities to prosecute their cases must bear the consequences of failing to do so. 34.Having carefully reviewed the entire record, I am satisfied that the appellants were accorded a fair and adequate opportunity to participate in the proceedings before the subordinate court. The learned trial magistrate cannot therefore be faulted for declining to reinstate the conditional orders after the appellants failed to comply with the terms upon which those orders had been granted. 35.Accordingly, I find that the appellants were not denied their constitutional right to be heard. The learned trial magistrate properly exercised her discretion in dismissing the application dated 25th January 2023, and no basis has been laid before this court for interfering with that exercise of discretion. 36.The appeal is dismissed. 37.The appellants shall bear the costs of the appeal. 38.Right of appeal 30 days. DATED, SIGNED AND DELIVERED AT KAKAMEGA ONLINE THIS 18TH DAY OF JUNE, 2026.S.N MBUNGIJUDGEIn the presence of:-CA: Angog’a/Velma