https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3116

Gerard & another (Suing as the Legal Administrators of the Estate of Suzanne Claire Droulih - Deceased) v Blissful Residences Investment Ltd (Environment and Land Case E236 of 2025) [2026] KEELC 3116 (KLR) (21 May 2026) (Ruling) Neutral citation: [2026] KEELC 3116 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Case E236 of 2025 MN Kullow, J May 21, 2026 Between Francois Jacques Henri Gerard 1st Plaintiff Raphaelle Catherine Jeanne Froment-Meurice 2nd Plaintiff Suing as the Legal Administrators of the Estate of Suzanne Claire Droulih - Deceased and Blissful Residences Investment Limited Defendant Ruling 1.Before me is an application dated 15th September 2025 brought under the provisions of order 10 rule 11, order 19 rule 2, order 22 rules 6 and 22, sections 1A, 1B, 3A, 63(e) and 80 of the Civil Procedure Act and all other enabling provisions of the law. 2.The applicant seeks the following orders: spent; that this honourable court be pleased to set aside or vary the orders granted on 29th May 2025 pending the hearing and determination of the application; that this honourable court be pleased to issue a temporary stay of execution of the decree and all consequential orders pending the hearing and determination of the application; and that costs of the application be provided for. 3.The application is supported by the grounds appearing on its face and the supporting affidavit of Jingjing Qu sworn on 15th September 2025. The deponent avers that at the time of filing of the plaintiffs’ application dated 23rd April 2025 and the issuance of the consequential orders, the deponent was undergoing medical treatment in the Republic of China. 4.The deponent further avers that the defendant/applicant only became aware of the existence of the proceedings on 29th May 2025 through a local representative and immediately informed its advocates who promptly came on record on the same date. It is averred that by the time counsel entered appearance, the matter had already proceeded ex parte in the absence of the defendant/applicant and temporary injunctive orders had been issued against the defendant/applicant in relation to LR No. 2/308 (formerly LR No. 2/222), Kilimani, Nairobi. 5.It is further averred that the defendant/applicant was not afforded a fair opportunity to be heard and that the orders were granted without consideration of its position or defence. The applicant maintains that it has a good and meritorious defence, that substantial loss may be occasioned if the orders sought are not granted, and urges the court to set aside the orders issued on 29th May 2025 so that the matter may be heard and determined on its merits. 6.The applicant further filed a supplementary affidavit sworn by Jingjing Qu in further support of the application dated 15th September 2025 pursuant to leave of the court granted on 27th October 2025. The deponent avers that he is a director of the defendant/applicant and is duly authorized to swear the affidavit on behalf of the company, annexing a copy of the company resolution marked “JQ-1.” The deponent reiterates that the affidavit is sworn in support of the application and confirms that the matters deponed to therein are true to the best of his knowledge, information and belief. 7.The application was initially scheduled for ruling on 13th April 2026. However, before delivery of the ruling, counsel for the plaintiff/respondent made an oral application seeking leave to file a response and corresponding submissions on grounds that he had been unwell and had therefore been unable to do so within the timelines earlier granted by the court. 8.The court granted the plaintiff/respondent additional time to file the response and submissions. Despite the indulgence granted, no response or submissions were subsequently filed by the plaintiff/respondent. The court therefore proceeded on the basis of the material on record together with the defendant/applicant’s written submissions dated 17th November 2025. 9.The issues identified by the defendant/applicant for determination were whether the legal threshold for the grant of an order setting aside or varying the ex parte orders issued on 29th May 2025 had been met; whether the plaintiff/respondent would suffer prejudice should the application dated 15th September 2025 be allowed; and who should bear the costs of the application. In support of its case, the defendant/applicant relied on the decisions in Esther Wamaitha Njihia & 2 Others v Safaricom Ltd [2014] eKLR, St. Patrick’s Hill School Ltd v Bank of Africa Kenya Ltd [2018] eKLR, Peter Ngigi Kigira v Fredrick Nganga Kigira [2022] eKLR, and Union Insurance Co. of Kenya Ltd v Ramzan Abdul Dhanji, Civil Application No. Nai 179 of 1998. Issues for Determination 10.Having considered the application, the affidavits in support thereof, and the submissions filed by the defendant/applicant, the only issue that falls for determination is whether the defendant/applicant has met the threshold for the setting aside or variation of the ex parte orders issued on 29th May 2025. Analysis and Determination 11.I have considered the application herein, the supporting and supplementary affidavits together with the annexures thereto, the submissions filed by the defendant/applicant, and the circumstances under which the ex parte orders issued on 29th May 2025 were granted. 12.The principles guiding the setting aside of ex parte orders are trite that the court has wide powers to set aside such ex parte orders save that where the discretion is exercised, the court will do so on terms that are just. 13.In CMC Holdings Limited v. Nzioki [2004] 1 KLR 173 it was held as follows:“That discretion must be exercised upon reasons and must be exercised judiciously…... In law the discretion that a court of law has, in deciding whether or not to set aside ex parte order was meant to ensure that a litigant does not suffer injustice or hardship as a result of amongst others an excusable mistake or error. It would not be proper use of such discretion if the court turns its back to a litigant who clearly demonstrates such an excusable mistake, inadvertence, accident or error. Such an exercise of discretion would be wrong principle...The answer to that weighty matter was not to advise the appellant of the recourse open to it as the learned magistrate did here. In doing so she drove the appellant out of the seat of justice empty handed when it had what it might have well amounted to an excusable mistake visited upon the appellant by its advocate.” 14.Further, in Branco Arabe Espanol v. Bank of Uganda [1999] 2 EA 22, Oder, JSC stated:“The administration of justice should normally require that the substance of all disputes should be investigated and decided on their merits, and that errors, lapses should not necessarily debar a litigant from the pursuit of his rights and unless a lack of adherence to rules renders the appeal process difficult and inoperative, it would seem that the main purpose of litigation, namely the hearing and determination of disputes, should be fostered rather than hindered.” 15.Guided by the foregoing principles, this court has interrogated the reasons advanced by the defendant/applicant for failure to participate in the proceedings culminating in the issuance of the impugned orders. The explanation tendered is that the defendant/applicant’s director was undergoing medical treatment in the Republic of China and that the defendant/applicant only became aware of the proceedings on 29th May 2025, whereupon counsel was immediately instructed and came on record. 16.The court further notes that despite the plaintiff/respondent being granted an opportunity to file a response and submissions, none were filed to controvert the averments made by the defendant/applicant. In the circumstances, the explanation advanced by the defendant/applicant has remained substantially uncontroverted. 17.The court is however equally alive to the fact that the orders issued on 29th May 2025, particularly the order directing maintenance of the status quo in relation to the occupation and use of the suit property pending hearing and determination of the suit, were essentially preservatory in nature and intended to preserve the substratum of the dispute pending full hearing. Final Disposition 18.Accordingly, this court is of the view that the interests of justice would best be served by preserving the suit property pending the hearing and determination of the main suit:a.The status quo obtaining pursuant to the orders issued on 29th May 2025 shall therefore remain in force pending hearing and determination of the suit.b.The parties are hereby directed to comply with all pre-trial requirements and thereafter set down the suit for hearing within sixty (60) days from the date hereof. Costs of the application shall abide the outcome of the suit.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 21ST DAY OF MAY, 2026.MOHAMMED N. KULLOWJUDGERuling delivered in the presence of: -Ms. Ngoizi for the Plaintiff.N/A for the Defendants.Philomena W - Court Assistant.