Obulinji v Agengo (Sued as the Administratrix Ad Litem of the Estate of Yusuf Gero Agengo - Deceased) (Environment and Land Case 186 of 2017) [2026] KEELC 5370 (KLR) (31 August 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KISUMU** **ELC CASE NO. 186 OF 2017** **(FORMERLY KISUMU HIGH COURT COMMERCIAL CIVIL CASE NO. 4 OF 2004)** **CHRISTINE OBULINJI PLAINTIFF/RESPONDENT** **VERSUS** **EUNICE AGENGO (Sued as the Administratrix ad litem** **of the Estate of YUSUF GERO AGENGO – Deceased) DEFENDANT/APPLICANT** **R U L I N G** ***(In respect to the Notice of Motion dated 27th July 2026)*** 1. What falls for determination is the Notice of Motion dated 27th July 2026 and filed on even date by Eunice Agengo, the defendant herein, which is expressed to be brought under Sections 1A, 1B and 3A of the Civil Procedure Act, Cap 21 of the Laws of Kenya, Article 159(2)(d) and (e) of the Constitution of Kenya, 2010, and Order 12 Rule 7 and Order 51 Rule 15 of the Civil Procedure Rules, 2010. 2. The application seeks the following orders: **a) Spent …** **b) That the court be pleased to issue an order staying further proceedings in the suit herein pending the hearing and determination of the application inter partes;** **c) That the court be pleased to review, vary and/or set aside the ex parte proceedings that took place on 7th July 2026 together with any consequential orders, pending the hearing and determination of the application inter partes;** **d) That the applicant be granted leave to file and serve her replying affidavit or grounds of opposition to the application dated 8th June 2026, within such time as the court may direct; and** **e) That the costs of the application be provided for.** 1. The application is premised on the grounds set out on its face and is supported by the affidavit of Moses Munuang'o, Advocate, sworn on 27th July 2026. Annexed to that affidavit and marked “MM-1” is a draft replying affidavit which the applicant proposes to file in answer to the application dated 8th June 2026. 2. The application is opposed. The plaintiff filed an affidavit-in-reply sworn by Christine Obulinji on 19th August 2026. Pursuant to directions issued on 28th July 2026, the application was canvassed by way of written submissions. The plaintiff filed submissions dated 20th August 2026 and the applicant filed submissions dated 22nd August 2026. I have read and considered the pleadings, the affidavits, the annexures and the rival submissions together with the authorities cited. **Background** 1. A brief recital of the procedural history is necessary because it forms the backdrop against which this application must be assessed. 2. This suit has a long history. It was commenced in the year 2004 as Kisumu High Court Commercial Civil Case No. 4 of 2004 and was subsequently transferred to and renumbered in this court as ELC Case No. 186 of 2017. The original defendant, Yusuf Gero Agengo, died on 5th February 2018. 3. By a ruling delivered on 2nd November 2021, upon the plaintiff's application, this court extended the time within which an application for substitution of a deceased party might be made, directed that Eunice Agengo, the holder of letters of administration ad litem limited to representing the deceased defendant, be joined as a party, and revived the suit. By the same order the plaintiff was granted leave to amend the plaint. The further amended plaint was filed on 27th January 2022 and, together with summons to enter appearance, was served upon Eunice Agengo on 10th July 2023. 4. On 8th June 2026 the plaintiff filed a Notice of Motion of even date seeking, in substance, that Mically Ochango Muka and Lavender Akinyi Gero, both administrators of the estate of Yusuf Gero Agengo, be substituted as defendants in place of Eunice Agengo, and that directions issue to facilitate the hearing of the suit with the participation of the said administrators. It is common ground that on that same date the matter was before the Hon. Lady Justice E. Asati for mention, that the defendant was represented by Ms. Raburu, and that counsel took directions for the hearing of the application, which was fixed for 6th July 2026. It is further common ground that the application was served upon the defendant's advocates by email on 8th June 2026 at 12:13 p.m. 5. On 6th July 2026 the matter came before me. There was no appearance for the defendant and no response to the application was on the record. The application was allowed. I made orders substituting Mically Ochango Muka and Lavender Akinyi Gero as defendants in place of Eunice Agengo, and fixed the matter for pre-trial conference on 28th July 2026. 6. On 27th July 2026, being the eve of the pre-trial conference, the applicant filed the present Notice of Motion. **The Applicant's case** 1. The applicant's case, as deposed to by her advocate Mr. Munuang'o and amplified in the submissions dated 22nd August 2026, is shortly stated. 2. It is deposed that on the material day counsel logged into the virtual court session in good time before the matter was called, with full instructions to oppose the application dated 8th June 2026; that when the matter was called out counsel attempted to address the court but, by reason of a technological hitch beyond his control, his microphone malfunctioned and the court was unable to hear him; that upon realising this he immediately utilised the “raise hand” function on the virtual platform to draw the court's attention to his presence and his wish to be heard; and that the raised hand and his presence went unnoticed, with the result that the application was heard and determined as though the applicant and her advocates were absent. 3. It is contended that the applicant was thereby condemned unheard in violation of her right to a fair hearing under Article 50 of the Constitution; that the failure to address the court was neither deliberate nor intentional; that she has a meritorious response raising serious and arguable issues, being the draft annexed as “MM-1”, in which she contends that the suit abated by operation of law under Order 24 Rule 4(3) of the Civil Procedure Rules one year after the death of the original defendant; and that the application has been made promptly, in good faith and without unreasonable delay. 4. In her submissions the applicant relies on the discretion conferred by Order 51 Rule 15 and on the classical statement of principle in **Shah v Mbogo [1967] EA 116, approved in Mbogo v Shah [1968] EA 93,** to the effect that the discretion is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake, but is not designed to assist a party who has deliberately sought to obstruct or delay the course of justice. She also relies on **Patel v E.A. Cargo Handling Services Ltd [1974] EA 75 and on Nderitu & another v Ghikas & another [2016] KECA 470 (KLR)** for the proposition that the right to be heard is fundamental and permeates the entire justice system. 5. Particular reliance is placed on paragraph 29(c) of the Practice Directions to Standardize Practice and Procedures in the High Court, 2022, which provides that where a technical hitch impedes communication during virtual court sessions, the period during which communication was cut off is deemed to be an adjournment. It is submitted that, on the Judiciary's own guidance, the period during which counsel was inaudible ought to have been treated as an adjournment rather than as a basis for proceeding ex parte. 6. On the plaintiff's complaint that no response was filed within thirty days of service, the applicant submits that failure to file written opposition in advance of a hearing is not, without more, fatal to the right to be heard orally at the hearing itself, and that the plaintiff, having herself sought enlargement of time on 27th July 2026 for the filing of a further amended plaint, cannot ask the court to extend indulgence to her own default while denying the applicant a hearing. On res judicata, it is submitted that the revival order of 2nd November 2021 determined a wholly different question and could not have determined a controversy that did not then exist. **The Respondent's case** 1. The plaintiff opposes the application on three principal grounds, which are common to her affidavit-in-reply and her submissions dated 20th August 2026. 2. First, she contends that the alleged technical hitch is a misrepresentation of the facts. She points out that the applicant was duly served with the application on 8th June 2026 and had thirty days within which to file and serve a response but failed to do so, and that counsel cannot logically rely on an alleged technical hitch to explain a default that had already occurred. She further points out that no log records, network report or any other corroborating evidence of the alleged malfunction has been produced, and submits that unsubstantiated assertions cannot form the basis for the exercise of judicial discretion. She relies on **Kimundui & another v Macharia & 2 others [2026] KEELC 3246 (KLR),** in which the court, applying **Shah v Mbogo,(Supra)** held that a technical difficulty on the morning of a mention cannot be used to white-wash a history of dilatoriness. 3. Secondly, she contends that the applicant has failed and/or neglected to address the revival order of 2nd November 2021, which has neither been set aside, reviewed nor appealed from; that this is not a mere oversight but a fatal substantive lapse, since the court cannot be invited to proceed as though the suit remains abated while a valid and subsisting order for its revival exists; and that under Section 7 of the Civil Procedure Act the question of abatement was conclusively settled by the revival order, rendering the applicant's intended response res judicata. She relies on **E.T v The Attorney General & J.N.K [2012] eKLR** for the proposition that courts must be vigilant to guard against litigants evading the doctrine of res judicata by repackaging determined issues. 4. Thirdly, she contends that orders of the court remain valid, binding and subsisting until formally set aside, that the discretion under Order 51 Rule 15 cannot be exercised in favour of a party guilty of deliberate delay, and that the application is an abuse of the process of the court intended to delay the determination of a suit that has been pending for a very long time. She prays that the application be dismissed with costs. **Issues for determination** 1. Having considered the application, the affidavits and the rival submissions, I am of the view that the following issues arise for determination: 2. **Whether there are preliminary matters on the face of the application that require the attention of the court;** 3. **Whether the applicant has established sufficient cause to warrant the setting aside of the proceedings and orders of 6th July 2026;** 4. **Whether the applicant has demonstrated a defence on the merits such as would render the setting aside a useful exercise;** 5. **Who should bear the costs of this application.** **Analysis and determination** ***(a) Preliminary matters*** 1. Before turning to the merits, three matters on the face of the application call for comment. 2. The first concerns the description of the parties. The Notice of Motion, the certificate of urgency and the supporting affidavit all describe Eunice Agengo as “Applicant/Respondent” and Christine Obulinji as “Respondent/Applicant”. That designation inverts the true positions of the parties. Christine Obulinji is the plaintiff in this suit and the respondent to the present motion; Eunice Agengo is the defendant and the applicant. The applicant's own written submissions carry the same inversion, with the consequence that the submissions repeatedly describe the plaintiff's case as the applicant's and vice versa. Whilst Article 159(2)(d) of the Constitution enjoins this court to administer justice without undue regard to procedural technicalities, and I do not propose to visit this error upon the litigant, counsel are reminded that accuracy in the description of parties is not a mere formality. It is the foundation upon which the record of the court is built. 3. The second matter is more troubling. Prayer 3 of the Motion seeks to set aside “the ex parte proceedings that took place on 7th July 2026”. The certificate of urgency is to the same effect, and the supporting affidavit deposes positively, at paragraphs 3, 4 and 5, that the application dated 8th June 2026 was listed for hearing on 7th July 2026 and that the deponent logged into the virtual session “on the material day, being 7th July 2026”. The record of this court, however, is unambiguous: the application dated 8th June 2026 was fixed for and heard on 6th July 2026. No proceedings whatsoever took place in this matter on 7th July 2026. Tellingly, the applicant's own written submissions vacillate between the two dates, in some passages referring to 6th July 2026 and in others to 7th July 2026. 4. Ordinarily I would treat such a discrepancy as a typographical slip and, applying the overriding objective, read the reference to 7th July 2026 as a reference to the proceedings of 6th July 2026. I am prepared to take that course so far as the competence of the application is concerned, because the substance of what is complained of is tolerably clear. But the discrepancy cannot be dismissed altogether. This is a deposition on oath by an advocate who claims a specific, personal and contemporaneous recollection of what he did on a particular morning. A deponent who says on oath that he logged in on a day on which nothing was listed, and who repeats that assertion four times in three documents, cannot expect the court to treat his recollection of the surrounding detail as reliable. 5. The third matter concerns the source of the evidence. The only evidence in support of the application is the affidavit of counsel. There is no affidavit from Eunice Agengo herself. Whilst an advocate may properly depose to procedural matters within his own knowledge, where the central controverted fact in an application is what counsel personally did or did not do, and that fact is disputed, counsel places himself in the invidious position of being both advocate and witness in his client's cause. That is a course to be avoided. ***(b) Whether sufficient cause has been established*** 1. The jurisdiction invoked is that conferred by Order 12 Rule 7 and Order 51 Rule 15 of the Civil Procedure Rules, 2010. The latter provides that where an application is heard ex parte, any order made thereon may be set aside or varied by the court on such terms as it thinks just, on application by any party affected. The discretion so conferred is wide, but it is a judicial discretion to be exercised on principle and not at large. 2. The locus classicus remains the statement of Harris J in **Shah v Mbogo [1967] EA 116 at 123** that: *“This discretion is intended so to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist the person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice.”* 1. To that principle must be added the guidance in **Patel v E.A. Cargo Handling Services Ltd [1974] EA 75,** that there are no limits or restrictions on the discretion save that it be exercised on such terms as are just, the main concern of the court being to do justice to the parties. I also accept, without reservation, the proposition advanced by the applicant on the authority of **Nderitu & another v Ghikas & another [2016] KECA 470 (KLR)** that the right to be heard before an adverse decision is taken is fundamental and permeates our entire justice system. Nothing in this ruling should be understood as detracting from that principle. 2. The question, however, is not whether the right to be heard is fundamental. It plainly is. The question is whether this applicant has laid before the court a factual foundation sufficient to attract the exercise of the discretion in her favour. In my judgment she has not, for the following reasons. 3. First, and most importantly, the applicant's non-participation on 6th July 2026 did not begin on the morning of 6th July 2026. It began on 8th June 2026. On that date the plaintiff's application was filed and served by email at 12:13 p.m.; on that same date the defendant was represented in court by Ms. Raburu, who informed the court that she had instructions to take directions and who took the hearing date of 6th July 2026. The defendant therefore had actual notice of both the application and the date of its hearing, and had a clear twenty-eight days within which to file a response. She filed nothing. What is significant is not merely that she filed nothing, but that the supporting affidavit is entirely silent as to why. Not a word of explanation is offered for the default. The whole of the applicant's evidence is directed at a single morning; the preceding four weeks are passed over in silence. 4. It is true, as the applicant submits, that the absence of a written response does not automatically disentitle a party from being heard orally. As a general proposition that is correct, and I accept it. But it does not assist the applicant here. The submission answers a different question from the one before me. The question is not whether the applicant could have been heard on 6th July 2026 had she appeared; it is whether the court should now exercise its discretion in favour of a party who was in default before the hearing date and who has offered no explanation for that earlier default. As Mogeni J aptly put it in **Kimundui & another v Macharia & 2 others [2026] KEELC 3246 (KLR),** a technical difficulty on the morning of the hearing cannot be used to white-wash a history of dilatoriness. That observation was made on facts materially similar to those before me and I respectfully adopt it. 5. Secondly, the alleged technical hitch is wholly unsubstantiated. The applicant asks the court to accept that counsel was logged in, that his microphone malfunctioned and that he raised his hand on the virtual platform. Yet there is not a single item of corroboration: no screenshot, no device or network log, no report from a service provider, no confirmation from any other participant in the session, and no contemporaneous communication to the Deputy Registrar, the court assistant or opposing counsel raising the alarm on the day. The plaintiff's submission that unsubstantiated assertions cannot found the exercise of judicial discretion is, with respect, well made. Where the fact asserted is one that is by its nature capable of being evidenced, a bare assertion on oath invites the question why the evidence was not produced. 6. Thirdly, and having revisited the record of the proceedings of 6th July 2026, I am unable to find any support in it for the account now given. 7. Fourthly, I do not think paragraph 29(c) of the Practice Directions to Standardize Practice and Procedures in the High Court, 2022, carries the applicant as far as she would wish. That direction deems the period during which communication is cut off to be an adjournment. It is a sensible and salutary provision, but it presupposes that the court is aware, or is made aware, that communication has been interrupted. It is directed at the situation in which a hearing is under way and the link fails. It cannot sensibly be construed as imposing on a court an obligation to divine the presence of a silent participant whose attendance has not otherwise been signalled, still less as converting into an adjournment a session that proceeded to its conclusion without any intimation of difficulty from anyone. A party who genuinely suffers a technical failure is not without remedy: the obvious and expected course is to communicate immediately with the court registry or opposing counsel. Nothing of the sort was done here. 8. Fifthly, on the question of promptitude, the applicant deposes that the application was brought without unreasonable delay. The orders complained of were made on 6th July 2026 and the Motion was filed on 27th July 2026, some twenty-one days later and on the eve of the pre-trial conference. I would not have refused the application on the ground of delay alone, and I say no more about it than that the timing does not, on its own, assist the applicant. 9. Taking those matters cumulatively, I am not satisfied that the applicant has established that her non-participation on 6th July 2026 was occasioned by accident, inadvertence or excusable mistake. What the record discloses is a party who was served, who took the hearing date through counsel, who then defaulted in filing any response, who did not appear, and who has offered an explanation for one morning only, unsupported by any evidence and anchored on the wrong date. ***(c) Whether a defence on the merits has been demonstrated*** 1. Even where sufficient cause for non-attendance is shown, the court will ordinarily consider whether the party seeking to be let in has a triable or arguable answer, since the court does not act in vain. It is therefore necessary to examine the draft response annexed as “MM-1”. 2. The sole point taken in that draft is that the suit abated by operation of law under Order 24 Rule 4(3) of the Civil Procedure Rules one year after the death of Yusuf Gero Agengo on 5th February 2018, no valid application for substitution having been made within time, and that unlike Order 24 Rule 3(2) there is no corresponding provision permitting enlargement of time in the case of a deceased defendant. 3. The difficulty with that contention is immediately apparent. By its ruling of 2nd November 2021 this court expressly extended the time for substitution, joined Eunice Agengo as a party in her capacity as administratrix ad litem, and revived the suit. That order has never been set aside, reviewed or appealed from. It is a subsisting order of a court of competent jurisdiction. It is trite that an order of the court, whether or not it was correctly made, is binding on the parties and must be given effect until it is discharged by the court that made it or by a court of superior jurisdiction. The applicant cannot invite this court to proceed on the footing that the suit stands abated while an unchallenged revival order sits on the record. Nor is it open to her to mount a collateral attack on that order in an affidavit in reply to an interlocutory application for substitution. If she wishes to impugn the revival order, there are recognised avenues open to her; an affidavit in reply is not one of them. 4. The plaintiff casts this objection as one of res judicata under Section 7 of the Civil Procedure Act. With respect, I would not put it quite that way. Section 7 is directed to the trial of a suit or issue that was directly and substantially in issue in a former suit between the same parties. What is in question here is not a former suit but an interlocutory order made in these very proceedings. The correct principle is not res judicata stricto sensu but the related and equally settled principle of the finality and binding force of a subsisting order, coupled with the rule against collateral attack. The distinction is one of label rather than of substance, and on the substance the plaintiff is right: the abatement point was determined by the order of 2nd November 2021 and cannot be reopened in the manner attempted. 5. It follows that the response the applicant seeks leave to file is one that could not succeed. To set aside the orders of 6th July 2026 for the purpose of letting in that response would be an exercise in futility. 6. There is a further consideration. The order made on 6th July 2026 did no more than substitute the duly appointed administrators of the estate of Yusuf Gero Agengo, being the holders of the grant, for an administratrix ad litem whose authority was limited to representing the deceased in this suit. The applicant was sued in a representative capacity only. She has not identified, either in her affidavit or in her submissions, any prejudice personal to her flowing from the order, and it is difficult to see how the substitution of the general administrators can be said to prejudice the estate. If anything it strengthens the estate's representation before this court. Set against that, the plaintiff, who has been litigating this claim in one form or another since 2004, would be materially prejudiced by any further delay. 7. I should say that I have considered the applicant's point that the plaintiff herself sought enlargement of time on 27th July 2026 for the filing of a further amended plaint, and that like cases should be treated alike. The point is not without rhetorical force, but the two situations are not comparable. An application for enlargement of time, properly made and supported, is the very course the applicant did not take. Had the applicant come to court promptly after 8th June 2026 seeking leave to file a response out of time, she would have received a sympathetic hearing. She did not. **Disposition** 1. In the end and for the reasons set out above, I make the following orders: 2. **The Notice of Motion dated 27th July 2026 be and is hereby dismissed.** 3. **Each party to bear own costs of the application.** It is so ordered. **DATED, SIGNED AND DELIVERED AT KISUMU THIS 31ST DAY OF** **AUGUST 2026.** **E. K. WABWOTO** **JUDGE** **In the presence of:** **Mr. OKero S.C. for the Plaintiff/Respondent.** **Mr.M.M. Omondi for the Defendant/Applicant.** **Court Assistant; Joanne Omondi.**