https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4784

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT GARISSA** **ELC CASE NO. E013 OF 2024** **NOOR MOHAMED HASSAN.................................................PLAINTIFF/APPLICANT** **VERSUS** **MANDERA COUNTY GOVERNMENT........................DEFENDANT/RESPONDENT** **RULING** **I. INTRODUCTION AND BACKGROUND** 1. The Plaintiff/Applicant has approached this court by way of Notice of Motion dated 16th September 2025 seeking principally that the order made on 29th April 2025, by which this Court struck out the Plaintiff's suit, be set aside and that the suit be reinstated for hearing and determination on its merits. The application is supported by the Plaintiff's affidavit sworn on the same date, as well as written submissions dated 20th April 2026. 2. The Defendant/Respondent opposes the application by way of a Replying Affidavit sworn on 5th January 2026 and written submissions dated 15th June 2026. The Defendant contends that the impugned order was regularly obtained after due service of the application leading to the striking out of the suit and that the Applicant has failed to establish sufficient cause to warrant the exercise of the Court's discretion in his favour. 3. The present application arises from interlocutory proceedings that culminated in the striking out of the Plaintiff's suit. The Court is therefore concerned, not with the merits of the substantive dispute between the parties, but with whether the circumstances surrounding the Plaintiff's failure to participate in those proceedings justify the setting aside of the impugned order. 4. The material background giving rise to the application is largely uncontested. The Plaintiff commenced these proceedings by a Plaint dated 10th July 2024 against the Defendant seeking reliefs arising from a land dispute. After the suit had been filed, the Plaintiff took the position that the Defendant had failed to enter appearance or file a defence within the prescribed period and consequently lodged a request for interlocutory judgment. 5. Before that request could be considered, the Defendant entered appearance and, on 21st March 2025, filed a Notice of Motion seeking, among other reliefs, that the Plaint be struck out on grounds inter alia that the suit was statute-barred under the Limitation of Actions Act. 6. The Defendant thereafter served the application upon the Plaintiff's advocates then on record and subsequently fixed it for hearing on 29th April 2025. A hearing notice was likewise served upon the same advocates. Affidavits of service confirming personal service of the application and electronic service of the hearing notice were filed before the Court. 7. The Plaintiff neither filed a response to the application nor attended the hearing through counsel. Being satisfied that service had been duly effected, the Court proceeded to hear the application in the Plaintiff's absence and, on 29th April 2025, allowed it, thereby striking out the Plaintiff's suit. 8. The Plaintiff now seeks to reopen those proceedings. He maintains that he was unaware of both the application and the hearing because his former advocates failed to inform him of the progress of the matter. According to the Plaintiff, he remained under the impression that the case was awaiting action on his request for interlocutory judgment until 15th September 2025, when he visited his advocates' offices and learnt, for the first time, that the suit had already been struck out. 9. The Defendant disputes that account. It maintains that the proceedings culminating in the impugned order were procedurally regular, that the Plaintiff's advocates received due notice of both the application and the hearing, and that the explanation now advanced for the Plaintiff's default is unsupported by credible evidence. 10. Against that factual background, the Court now turns to the parties' respective cases before identifying the issues requiring determination. **II. THE PARTIES' CASES** 1. The Court has considered the Notice of Motion, the affidavits filed in support and in opposition thereto, the written submissions of learned counsel and the authorities cited by the parties. The respective cases may be summarised as follows. 2. The Applicant's case is that the order made on 29th April 2025 should be set aside because his failure to oppose and attend the hearing of the Defendant's application did not arise from deliberate inaction or disregard of the Court's process. Rather, he attributes his default entirely to the conduct of his former advocates, whom he accuses of failing to keep him informed of the progress of the suit despite his repeated inquiries. 3. The Applicant submits that after instituting the suit, he remained under the impression that the Defendant had neither entered appearance nor filed a defence and that the matter was awaiting determination of his request for interlocutory judgment. He states that whenever he contacted his advocates for updates, he was informed that the matter was progressing normally and that no action was required on his part. According to him, he was never informed that the Defendant had entered appearance, filed an application seeking to strike out the suit, or fixed that application for hearing. 4. The Applicant further explains that he resides outside Nairobi and lacks the technological capacity to monitor proceedings electronically through the Judiciary's digital platforms. He therefore relied entirely upon his advocates for information regarding the progress of the litigation. The court did not know what to make of that submission, since the matter is entirely before the Environment and Land Court in Garissa, not Nairobi. He contends that it was only on 15th September 2025, when he personally visited his advocate’s offices, that he learnt that the suit had already been struck out. 5. On the basis of those facts, the Applicant submits that he should not be deprived of the opportunity to prosecute his claim because of mistakes allegedly committed by his advocates. Counsel relied on the settled principle that mistakes of counsel should not ordinarily be visited upon an innocent litigant and urged the Court to lean in favour of determining disputes on their merits. The Application was premised upon Articles 48, 50 and 159 of the Constitution, which require courts, where the interests of justice so demand, to facilitate rather than impede the determination of disputes on their substantive merits. The Applicant therefore urged the Court to exercise its discretion by setting aside the impugned order, reinstating the suit and awarding costs in the cause. 6. The Respondent opposes the application in its entirety. Its primary position is that the proceedings culminating in the order of 29th April 2025 were procedurally regular and that the Applicant has failed to establish any legal basis for disturbing that order. 7. The Respondent submits that the application dated 21st March 2025 was personally served upon the Plaintiff's advocates then properly on record and that receipt of the application was acknowledged by the advocates' official receiving stamp. It further submits that the hearing notice was subsequently served through the advocates' official email address and that affidavits of service confirming both modes of service were duly filed before the Court. In the Respondent's view, the Applicant was afforded every opportunity to oppose the application but elected not to do so. 8. The Respondent further submits that the Applicant has not mounted any legally recognised challenge to the affidavits of service. Counsel emphasised that the Applicant neither sought leave to cross-examine the process server nor produced evidence disputing the authenticity of the acknowledgements appearing on the application or the email through which the hearing notice was transmitted. It was therefore submitted that the affidavits of service remain uncontroverted and conclusively establish that the proceedings leading to the impugned order were regularly conducted. 9. The Respondent submits that the failed to explain the inordinate delay of approximately five (5) months from the date the Orders were issued on 29th April 2025 until the date the Application was filed on 16th September 2025. It therefore argued that the Applicant has failed to establish sufficient cause for reopening proceedings that were lawfully concluded. 10. The Respondent also submitted on a point of law founded upon Order 9 Rule 9 of the Civil Procedure Rules, 2010, contending that the Applicant changed advocates after the impugned order had been made without first obtaining leave of the Court or filing a consent between the outgoing and incoming advocates. The Respondent therefore urged the Court to find that the application is procedurally incompetent. In any event, it was submitted that litigation must come to an end and that no sufficient basis has been shown to reopen proceedings that were regularly concluded. **ISSUES FOR DETERMINATION** 1. The Court has carefully considered those competing positions. Although a number of arguments were advanced by the parties, they ultimately converge upon four issues, namely— 1. whether the present application is competent in view of the provisions of Order 9 Rule 9 of the Civil Procedure Rules; 2. whether the proceedings culminating in the order made on 29th April 2025 were regularly conducted after due service of the Defendant's application and the hearing notice; 3. if so, whether the Applicant has established sufficient cause to warrant the exercise of the Court's discretion to set aside that order; and 4. who should bear the costs of the application. 2. The resolution of those issues depends upon settled principles governing the setting aside of ex parte orders, to which the Court now turns. **III. APPLICABLE LEGAL PRINCIPLES** 1. The application before the Court seeks the setting aside of an order made in the absence of the Applicant during the hearing of the Defendant's application dated 21st March 2025. The principles governing the exercise of that jurisdiction are well settled and admit of little controversy. 2. The Court's jurisdiction to set aside an ex parte order is discretionary. That discretion is intended to ensure that justice is done between the parties and to prevent injustice arising from accident, inadvertence or excusable mistake. It is not, however, exercised as a matter of course or upon sympathetic considerations. Being a judicial discretion, it must be exercised upon established legal principles and in light of the particular circumstances of each case. 3. The classic statement of those principles appears in **Shah v Mbogo & Another [1967] EA 116**, where Harris J stated that the discretion— "*…is intended 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.*" 1. The Court of Appeal has consistently reaffirmed that principle. In **Patel v East African Cargo Handling Services Ltd [1974] EA 75**, it observed that there are no inflexible limits upon the exercise of the discretion, provided that it is exercised judicially and with the object of doing justice between the parties. More recently, in **CMC Holdings Ltd v Nzioki [2004] 1 KLR 173**, the Court reiterated that while courts generally lean towards determining disputes on their merits, that objective must be balanced against the obligation of parties to comply with procedural rules and to conduct litigation diligently. 2. Equally well established is the distinction between regular and irregular ex parte orders. In **James Kanyiita Nderitu & Another v Marios Philotas Ghikas & Another [2016] eKLR**, the Court of Appeal explained that where an order has been obtained without proper service of the relevant court process, the resulting order is irregular and will ordinarily be set aside *ex debito justitiae*. In such circumstances, the applicant need not demonstrate the merits of the intended response because the proceedings themselves are fundamentally defective. 3. A different approach applies where the impugned order is shown to have been regularly obtained. In that event, the applicant is not entitled to relief as of right. The burden rests upon the applicant to demonstrate sufficient cause for the failure to participate in the proceedings and to satisfy the Court that, in all the circumstances, its discretion should be exercised in favor of reopening proceedings that were regularly concluded. 4. Whether an order was regularly obtained ordinarily depends upon proof of service. A duly sworn affidavit of service constitutes prima facie evidence of the facts stated therein. As the Court of Appeal observed in **Shadrack Arap Baiywo v Bodi Bach [1987] eKLR**, a party disputing service bears the evidential burden of displacing the affidavit of service, and where its truthfulness is challenged, the appropriate course is ordinarily to seek the attendance of the process server for cross-examination. Unless successfully impeached, an affidavit of service remains evidence upon which a court is entitled to act. 5. Where the Court is called upon to determine whether sufficient cause has been established, no exhaustive definition is possible. The inquiry is necessarily fact-specific. The Court considers, among other matters, the explanation advanced for the default, whether that explanation is supported by credible evidence, the diligence exhibited by the applicant before and after the impugned proceedings, the promptness with which relief has been sought, the prejudice likely to be occasioned to the opposing party, and, ultimately, whether the interests of justice favor reopening the proceedings. 6. The Applicant's explanation rests principally upon the alleged omissions of his former advocates. The Court therefore bears in mind the settled principle that mistakes of counsel should not ordinarily be visited upon an innocent litigant. That principle reflects the reality that litigants necessarily entrust the conduct of litigation to legal practitioners. It is not, however, a principle of automatic application. Allegations of professional default must be established by credible evidence, and the Court is entitled to consider whether the litigant himself exercised reasonable diligence in safeguarding his own interests. Litigation remains a shared responsibility between advocate and client. 7. The exercise of the Court's discretion must also accord with the Constitution and the overriding objective of civil litigation. Articles 48, 50 and 159 of the Constitution affirm the importance of access to justice, the right to a fair hearing and the obligation of courts to administer justice without undue regard to procedural technicalities. Likewise, sections 1A and 1B of the Civil Procedure Act require courts to facilitate the just, expeditious, proportionate and affordable resolution of civil disputes. 8. Those constitutional values do not, however, displace procedural discipline. Article 159(2)(d) was not enacted to excuse indolence or to permit litigants to disregard court process. Rather, it requires courts to administer justice substantively while respecting procedural rules that remain indispensable to the fair, orderly and efficient administration of justice. 9. Guided by those principles, the Court now turns to determine whether the Applicant has demonstrated sufficient cause to warrant the setting aside of the impugned order. **IV. ANALYSIS AND DETERMINATION** 1. The Court has carefully considered the application, the affidavits filed by the parties, the written submissions and the authorities relied upon. The competing arguments ultimately raise a single question: whether the Applicant has established sufficient cause to justify setting aside the order made on 29th April 2025. That question, however, can only be answered after determining whether the impugned order was regularly obtained. 2. Before turning to that issue, the Court briefly addresses the Respondent's objection to the application founded upon Order 9 Rule 9 of the Civil Procedure Rules. The Respondent submitted that the present application is incompetent because the Applicant changed advocates after the impugned order had been made without obtaining leave of the Court or filing a consent between the outgoing and incoming advocates. There is considerable authority that compliance with Order 9 Rule 9 is mandatory where there is a change of advocates after judgment. Equally, courts have recognised that where an application is plainly unsustainable on its merits, it serves little practical purpose to determine it solely on a procedural objection. Whether it is necessary for the court to pronounce itself on that objection turns on whether the court concludes that the application fails on substantive grounds. I will return to this point at the end of the ruling. 3. The Court now turns to the regularity of the proceedings culminating in the impugned order. The Applicant does not contend that the Defendant failed to serve his advocates with either the striking-out application or the hearing notice. Nor does he dispute that those advocates were properly on record when service was effected. His complaint is of a different character: namely, that his advocates failed to communicate the existence of the application and the hearing date to him. 4. That distinction is decisive. The record shows that the striking-out application was personally served upon the Plaintiff's advocates and that receipt was acknowledged by the advocates' official receiving stamp. The record further shows that the hearing notice was transmitted to the advocates through their official email address before the hearing date. Affidavits of service confirming those matters were filed before the Court. 5. The Respondent submitted that those affidavits of service remain unchallenged and that the Court should therefore proceed on the basis that service was duly effected. The Court agrees. The Applicant neither challenged the authenticity of the receiving stamp nor disputed the email address through which service was effected. More significantly, although the Respondent expressly relied upon the affidavits of service, the Applicant did not seek leave to cross-examine the process server or otherwise place before the Court material capable of impeaching those affidavits. The evidential burden identified in **Shadrack Arap Baiywo v Bodi Bach** therefore remains undischarged. 6. The inevitable conclusion is that the proceedings culminating in the impugned order were procedurally regular. It follows that the Applicant is not entitled to have that order set aside as of right. The burden rests squarely upon him to establish sufficient cause for his failure to participate in the proceedings. 7. The Applicant's explanation is that he remained unaware of the striking-out application because his former advocates failed to keep him informed of the progress of the suit. He depones that they ignored many of his telephone calls, repeatedly assured him that the matter was progressing normally, informed him that the only outstanding issue concerned his request for interlocutory judgment, and never disclosed that the Defendant had filed an application seeking to strike out the suit. Counsel therefore submitted that the Court should not visit the mistakes of advocates upon an innocent litigant. 8. The Court readily accepts the legal principle relied upon by the Applicant. Courts have consistently recognized that a litigant should not ordinarily suffer because of an excusable mistake committed by counsel. The principle reflects the practical reality that litigants necessarily entrust the conduct of litigation to legal practitioners. It is also consistent with the constitutional preference that disputes should, where reasonably possible, be determined on their merits. 9. The principle, however, is not absolute. It is not enough for a litigant simply to attribute every procedural default to counsel. The Court must be satisfied, first, that the alleged mistake has been established by credible evidence and, secondly, that the litigant himself acted with reasonable diligence. Judicial discretion cannot rest upon assertion alone. 10. Measured against that standard, the Applicant's explanation falls short. The allegations made against the former advocates are serious. Yet no affidavit has been sworn by those advocates explaining why no response was filed despite service of the striking-out application or why neither counsel nor client attended the hearing. While such an affidavit is not invariably indispensable, its absence assumes significance where professional default is alleged against officers of the Court. 11. Nor did the Applicant produce correspondence, emails, text messages, attendance notes or any other contemporaneous material corroborating his assertion that he repeatedly sought updates from his advocates and was consistently misled regarding the progress of the proceedings. The Court is therefore left with allegations that, although genuinely made, remain unsupported by independent evidence. 12. The Court has also considered the Applicant's own conduct. The Applicant explains that he resides outside Nairobi and lacks the technological proficiency necessary to monitor proceedings electronically. The Court accepts that those circumstances may have presented practical difficulties. They do not, however, relieve a litigant from exercising reasonable vigilance over proceedings commenced in his own name. Litigation is conducted through advocates, but responsibility for safeguarding one's legal interests ultimately remains that of the litigant. 13. Furthermore, the Respondent notes that the application to set aside was not filed promptly but was filed nearly five (5) months after the Orders were issued on 29th April 2025. The Applicant did not explain this inordinate delay. 14. The Applicant premised his application on Articles 48, 50, and 159 of the Constitution, thereby tacitly inviting the Court to determine the dispute on its merits. The Court fully accepts that those constitutional provisions occupy a central place in the administration of justice. They reinforce the importance of access to justice, the right to a fair hearing, and the obligation of courts to administer justice without undue regard to procedural technicalities. 15. Those constitutional values, however, do not exist independently of the procedural framework established by law. The Supreme Court in **Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR**, was emphatic that Article 159(2)(d) was never intended to excuse indolence or to relieve litigants from the obligation to respond to court process. 16. Rather, it requires courts to administer justice substantively while respecting procedural rules that remain indispensable to fairness, equality of arms, and the orderly administration of justice. The constitutional provisions relied upon by the Applicant therefore inform the exercise of the Court's discretion; they do not displace the requirement that sufficient cause be established before a regular order may be set aside. 17. The Court has also considered the Applicant's assertion that he has a meritorious claim deserving determination on its merits. The Court deliberately refrains from expressing any opinion on whether the Defendant's striking-out application was rightly or wrongly allowed. That question does not arise in the present proceedings. 18. Nevertheless, where a party seeks the exercise of equitable discretion after proceedings have been regularly concluded, the Court is entitled to consider whether the applicant has identified, at least in broad terms, the response that he was prevented from placing before the Court. Beyond the bare assertion that he has a good case, the Applicant has not identified the factual or legal basis upon which he intended to oppose the striking-out application. While that omission is not decisive on its own, it is a relevant factor in the exercise of the Court's discretion. 19. Having carefully considered the evidence and the submissions presented by both parties, the Court is not persuaded that the Applicant has established sufficient cause for reopening proceedings that were regularly concluded. The impugned order was regularly obtained; the explanation advanced for the Applicant's default remains uncorroborated; the Applicant has not demonstrated the degree of diligence expected of a litigant seeking equitable relief; and no sufficient basis has been laid for the exercise of the Court's discretion. The application must therefore fail. 20. Having concluded that the application must fail, determining the effect of Order 9, Rule 9 of the Civil Procedure Rules on the application amounts to a mere academic exercise and therefore falls by the wayside. **V. DISPOSITION** 1. The Court has carefully weighed the competing considerations presented by this application. On the one hand lies the constitutional preference that disputes should, wherever reasonably practicable, be determined on their substantive merits. On the other hand lies the equally important obligation resting upon litigants to comply with court processes and to prosecute their claims with reasonable diligence. The administration of justice requires that both considerations be given their proper place. 2. The Court has found that the proceedings culminating in the impugned order were regularly conducted after due service of both the striking-out application and the hearing notice upon the Plaintiff's advocates then properly on record. The Applicant has not displaced the affidavits of service or otherwise demonstrated that those proceedings were procedurally defective. 3. The Court has further found that the explanation advanced for the Applicant's failure to oppose and attend the hearing of the striking-out application does not amount to sufficient cause. Although the Applicant attributes his default to the conduct of his former advocates, those allegations remain unsupported by independent or corroborative evidence. The Court is therefore unable to conclude that the Applicant's absence resulted from accident, inadvertence or excusable mistake of the nature contemplated in **Shah v Mbogo & Another** and the subsequent authorities governing the exercise of judicial discretion. 4. The Court has equally considered the constitutional principles relied upon by the Applicant. Articles 48, 50 and 159 of the Constitution undoubtedly reinforce the importance of access to justice and the determination of disputes on their merits. Those principles, however, operate within the framework of the law. They do not relieve litigants of the obligation to respond to court processes, nor do they justify the reopening of proceedings that were regularly concluded in the absence of sufficient cause. 5. The Court has deliberately refrained from expressing any opinion on the merits of the Defendant's application dated 21st March 2025. Whether that application was rightly or wrongly allowed is not the question before the Court. The only issue for determination has been whether the Applicant has established sufficient grounds for setting aside the order made on 29th April 2025. For the reasons set out in this ruling, the Court is satisfied that he has not. 6. Judicial discretion is one of the most important instruments available to a court in preventing injustice. Equally, it must be exercised consistently with established legal principles. It cannot be invoked to relieve a litigant from the consequences of unsupported allegations, unexplained default, or want of diligence in proceedings that were regularly conducted. To do so would undermine the principles of procedural fairness, certainty and finality that are indispensable to the proper administration of justice. 7. The inevitable consequence is that the Notice of Motion dated 16th September 2025 is devoid of merit. **Orders** 1. Accordingly, the Court makes the following orders: 1. The Notice of Motion dated 16th September 2025 is hereby dismissed. 2. The Plaintiff/Applicant shall bear the costs of the Notice of Motion dated 16th September 2025. It is so ordered. **DATED, SIGNED AND DELIVERED AT GARISSA THIS 16TH DAY OF JULY, 2026.** **DR. OMONDI R. OWINO, FCIArb** **JUDGE** **ENVIRONMENT AND LAND COURT** **DELIVERED VIRTUALLY ON THE TEAMS PLATFORM** **IN THE PRESENCE OF:** Mr Osumba h/b for Mr Salim Mohamed for the Defendant/Respondent N/A for the Plaintiff/Applicant Mr Dabar Mohamed (Court Assistant)