https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/791

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATES COURT AT MOMBASA** **MAGISTRATE COURT CIVIL** **MCCELC NO. E145 OF 2025** **NASSIMA HASSAN IBRAHIM..............................................PLAINTIFF/RESPONDENT** **VERSUS** **GEORGE PHILIP CHIKO** **(Sued as the Administrator of the Estate of Philip Mwadzoya Chiko (Deceased))** **...........................................................................................DEFENDANT/APPLICANT** **RULING** **Background** 1. Before this Court is the Defendant/Applicant’s Notice of Motion filed on 9th June 2026 seeking, principally, that the proceedings conducted on 4th June 2026 and all consequential orders be set aside; that the directions requiring parties to file submissions by 30th July 2026 be vacated; that the suit be reopened and heard inter partes on merit; and that the matter proceed from the stage reached on 1st December 2025 when the Plaintiff’s case had been stood down for further hearing. Costs are sought in the cause. 2. The application arises from a land dispute between the Plaintiff, Nassima Hassan Ibrahim, and the Defendant, George Philip Chiko, who has been sued as the administrator of the Estate of Philip Mwadzoya Chiko (Deceased). According to the Applicant’s supporting affidavit, the suit was instituted on or about 24th June 2025 and concerns Plot No. 13796/I/MN, C.R. No. 42477, in respect of which the Plaintiff seeks, inter alia, declarations and eviction orders. 3. The Defendant entered appearance and filed a Statement of Defence, Counterclaim, Witness Statement and List of Documents dated 28th July 2025. He states that the documents were served upon the Plaintiff’s advocates by email on 6th August 2025. 4. The Defendant’s case, as disclosed in the application, raises questions concerning ownership, occupation and adverse possession of the suit property. In the Certificate of Urgency, the Defendant additionally asserts occupation extending for over forty years and refers to previous litigation concerning the property. The proceedings leading to the application 1. It is common ground that the hearing commenced on 1st December 2025 when both parties were represented and participated in the proceedings. During that hearing an issue arose regarding service of certain documents and the matter did not conclude. 2. The matter thereafter came up on 4th May 2026. The Plaintiff's position is that the date had been fixed by consent. She attended Court together with her advocate, while neither the Defendant nor his advocate attended. 3. The Defendant explains the absence differently. His advocate, Mr. Ronald Kai Mwasaha, depones that he had instructed Mr. Hervey Mtana Mwahunga, Advocate, to hold his brief but the latter failed to attend Court. Consequently, according to Mr. Kai, the directions issued on that date were never communicated to him and were not diarised. 4. The Plaintiff states that although she and her advocate were ready to proceed on 4th May 2026, the matter was adjourned at the Court’s request and a fresh hearing date of 4th June 2026 was given. 5. On 4th June 2026, neither the Defendant nor his advocate attended Court. The Plaintiff attended and proceeded with her case, which was thereafter closed. Directions were subsequently issued requiring the parties to file submissions by 30th July 2026. 6. The Plaintiff maintains that a hearing notice for 4th June 2026 had been issued and a return of service filed. Indeed, the Defendant's own submissions record the Respondent's contention that the Defendant had been duly served with the hearing notice. The Applicant's case 1. The application is supported by the affidavit of Mr. Ronald Kai Mwasaha, advocate for the Defendant. His explanation is that the failure to attend Court was neither deliberate nor intended to obstruct the administration of justice. 2. He states that after the advocate instructed to hold brief failed to attend Court on 4th May 2026, the directions issued on that day were not communicated to him. As regards 4th June 2026, the advocate instructed to hold brief subsequently informed him that he had been unable to log into the virtual court session and therefore did not participate in the proceedings. 3. Mr. Kai further depones that during the material period he had travelled outside the country to attend to his wife who was seriously ill and required his attention and support. He states that because of those circumstances neither he nor his client was present when the matter proceeded. 4. The Applicant maintains that he has a substantive Defence and Counterclaim raising serious issues of law and fact concerning ownership, occupation and adverse possession. He contends that unless the proceedings are reopened, he will be denied the opportunity to challenge the Plaintiff’s evidence and may ultimately be condemned unheard. 5. In his written submissions, the Applicant refined the relief sought. He asks that the Plaintiff's case be reopened solely for purposes of cross-examination, after which the Defendant be permitted to present his Defence and Counterclaim. 6. The Applicant relies, among other authorities, on Shah v Mbogo & Another [1967] EA 116, Patel v E.A. Cargo Handling Services Ltd [1974] EA 75, Philip Chemwolo & Another v Augustine Kubende [1982–88] KAR 103, Richard Ncharpi Leiyagu v IEBC & 2 Others [2013] eKLR and Tana & Athi Rivers Development Authority v Jeremiah Kimigho Mwakio & 3 Others [2015] eKLR. The Respondent’s case 1. The Plaintiff opposes the application through her Replying Affidavit and written submissions. She does not dispute that the hearing commenced on 1st December 2025. Her position, however, is that the Defendant thereafter failed to attend Court on 4th May 2026 despite that date having been fixed by consent. 2. The Plaintiff challenges the explanation given by Defendant's counsel. In particular, she argues that no documentary evidence was placed before the Court to demonstrate that counsel had actually travelled outside the country to attend to his sick wife. 3. More importantly, the Plaintiff asks why, irrespective of counsel's circumstances, the Defendant himself did not attend Court. Her position is that a suit ultimately belongs to the litigant and the Defendant could have attended Court, explained his advocate's absence and sought the Court's indulgence. 4. The Plaintiff further contends that on 4th June 2026 neither the Defendant nor his advocate attended despite service. She therefore maintains that the proceedings were properly conducted in their absence under Order 12 of the Civil Procedure Rules. 5. The Plaintiff also alleges that the Defendant has systematically delayed the matter and refers to his conduct prior to institution of the suit, including circumstances surrounding the taking out of a limited grant and a citation. 6. On prejudice, the Plaintiff argues that delay works in the Defendant's favour because he continues to occupy the suit property while she remains deprived of it. She therefore disputes the Applicant's contention that reopening the proceedings will cause her no prejudice. 7. The Plaintiff's primary prayer is that the application be dismissed with costs. In the alternative, she submits that should the Court exercise its discretion in favour of the Defendant, the reopening should be limited to allowing the Defendant to testify, without reopening the Plaintiff's case, and that the Defendant should first pay the costs occasioned by the Plaintiff's attendance on 4Th May, 4th June and 30th June 2026. **Issues for determination** 1. Having considered the application, supporting affidavit, Replying Affidavit and the respective written submissions, I consider the following issues to arise for determination: 2. Whether sufficient cause has been demonstrated for the Defendant's failure to attend Court; 3. Whether the proceedings of 4th June 2026 should be set aside or reopened; 4. If the Court exercises its discretion in favour of the Defendant, the extent to which the proceedings should be reopened; and 5. Who should bear the costs of the application. **Analysis and determination** Whether sufficient cause has been established 1. Order 12 Rule 2(a) of the Civil Procedure Rules permits a Court, where only the Plaintiff attends on the date fixed for hearing, to proceed ex parte if satisfied that notice of the hearing was duly served. Order 12 Rule 7 nevertheless gives the Court discretion to set aside or vary an order made under Order 12 upon such terms as may be just. 2. The mere fact that proceedings were regularly conducted ex parte does not therefore deprive the Court of jurisdiction subsequently to set them aside. Regularity of the proceedings and the subsequent exercise of discretion to set them aside are related but distinct questions. 3. The principles governing that discretion are settled. In Shah v Mbogo & Another [1967] EA 116, the Court held that the discretion is intended to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error, but is not intended to assist a person who has deliberately sought, by evasion or otherwise, to obstruct or delay the course of justice. 4. Similarly, in Patel v E.A. Cargo Handling Services Ltd [1974] EA 75, the Court emphasised that the primary concern of the Court is to do justice between the parties and that the discretion should not be unnecessarily fettered. 5. There is no dispute in the present case that the Defendant and his advocate were absent on 4th June 2026. I am also not persuaded that the Plaintiff acted improperly by proceeding with her case. On the material presented, she attended Court ready to prosecute her claim and there is an assertion that notice had been served. The Plaintiff cannot therefore be faulted for proceeding when the Court permitted her to do so. 6. The question, however, does not end there. I must consider whether the Defendant's default, viewed against the entire history of the proceedings, warrants the drastic consequence of denying him an opportunity to challenge the evidence presented against him. 7. I agree with the Respondent that the explanation presented by the Applicant is not entirely satisfactory. 8. First, although counsel states on oath that he had travelled outside the country to attend to his seriously ill wife, no travel documents or other supporting material were exhibited. The Court is therefore asked to accept the explanation principally on counsel's sworn assertion. 9. Secondly, the explanation relating to counsel does not fully account for the Defendant's personal absence. No detailed explanation has been given as to why the Defendant himself did not attend Court on the material date. 10. Thirdly, there appears to have been a breakdown in professional follow-up. Having instructed another advocate to hold brief, counsel on record remained under an obligation to ensure that the outcome of the proceedings was ascertained and the matter appropriately diarised. 11. Those shortcomings cannot simply be disregarded under Article 159(2)(d). The constitutional command against undue regard to procedural technicalities does not abolish rules of procedure or excuse every instance of non-compliance. That said, the Court must consider the default in context. 12. The Defendant is not a party who entered the proceedings only after the Plaintiff had concluded her case. He entered appearance, filed a Defence and Counterclaim, Witness Statement and List of Documents, and participated in the proceedings from inception. 13. He was present through counsel when the hearing commenced on 1st December 2025. His pleadings disclose that he intends not merely to resist eviction but also to prosecute a Counterclaim concerning ownership, occupation and adverse possession of the suit property. I therefore do not find sufficient material before me to conclude that the Defendant had abandoned his defence or deliberately decided not to participate in the suit. 14. The recent Court of Appeal decision in Chabari v Tharaka Nithi County Government & another [2025] KECA 558 (KLR) is instructive. The Court reiterated that while counsel's mistake is not automatically excusable, the Court must examine the conduct of the litigant and determine whether excusing the mistake would facilitate a just, expeditious and holistic determination of the dispute. The Court equally reaffirmed the centrality of the right to be heard and the need for proportionality. 15. Likewise, Richard Ncharpi Leiyagu v Independent Electoral and Boundaries Commission & 2 Others [2013] eKLR emphasises that the right to a hearing is constitutionally protected and that the Court's powers must be exercised in a manner that safeguards the integrity of its process without occasioning injustice. 16. I therefore find that although the explanation for non-attendance demonstrates a degree of negligence and is not wholly satisfactory, the circumstances do not establish deliberate obstruction or an intention by the Defendant to abandon his case. Whether the Plaintiff’s case should be reopened 1. This brings me to the more difficult question: what relief is proportionate? The Plaintiff urges the Court, if minded to exercise discretion, merely to allow the Defendant to testify while preserving her evidence as already recorded. I have considered that proposal carefully. It has the attraction of minimising delay. However, in the circumstances of this particular case, I do not consider it sufficient to secure a fair determination. 2. The Plaintiff's evidence was tendered and her case closed when neither the Defendant nor his advocate was present. Consequently, her evidence has never been subjected to cross-examination by the Defendant. 3. Cross-examination is not a mere procedural ornament. It is an important evidential mechanism through which the opposing party is permitted to test the accuracy, credibility and reliability of testimony. 4. This assumes particular importance here because the dispute concerns competing claims to land, including ownership, occupation and alleged adverse possession. The Court will ultimately be required to evaluate the Plaintiff's evidence against the Defendant's Defence and Counterclaim. 5. Allowing the Defendant merely to testify would enable him to put forward his own version, but would leave the Plaintiff's evidence entirely untested. In my view, that would produce an evidential imbalance which is unnecessary when it can be cured through a limited and controlled reopening of the Plaintiff's case. 6. The Applicant does not, in his submissions, seek to have the Plaintiff begin her evidence afresh. His final request is narrower: that the Plaintiff's case be reopened solely to permit cross-examination, after which the Defendant will present his case. I consider that to be the proportionate course. 7. It preserves the evidence already tendered by the Plaintiff. It avoids requiring her to repeat her examination-in-chief. At the same time, it permits the Defendant to test that evidence before the Court proceeds to evaluate the competing cases. 8. The prejudice occasioned to the Plaintiff by the reopening is principally delay and additional expense. Those consequences are real and should not be minimised. The Plaintiff also says that the Defendant continues occupying the suit property while she remains deprived of it. 9. Nevertheless, that prejudice can substantially be addressed through costs and strict case-management directions. By contrast, if the Plaintiff's case remains closed without cross-examination and the matter proceeds to determination, the resulting prejudice to the Defendant cannot readily be cured if the Court ultimately determines the suit and Counterclaim upon evidence he had no opportunity to challenge. 10. The broad equity approach recognised in Philip Chemwolo & Another v Augustine Kubende is that an error should, where justice permits, be corrected rather than automatically depriving a litigant of determination on the merits, with costs being available to compensate the innocent party. Kenyan courts have continued to apply that principle where the default is not fraudulent or intended to overreach. 11. I therefore decline the Plaintiff's invitation to dismiss the application altogether. I equally decline the alternative invitation to restrict the Defendant merely to tendering his evidence without an opportunity to cross-examine the Plaintiff. 12. However, the Court must make it clear that granting the application is not an endorsement of the manner in which the Defendant and his advocates handled the proceedings. 13. The Plaintiff attended Court when required. She was entitled to proceed when the Defendant failed to attend. She should not bear the financial consequences occasioned by the Defendant's default. The discretion will therefore be exercised on terms. Alleged delay in service of the application 1. The Plaintiff also raised the contention that the application was served out of time. The Applicant submits that any such delay is a procedural lapse curable under Article 159(2)(d). 2. No sufficient prejudice arising specifically from the alleged late service has been demonstrated which would justify striking out or dismissing the application on that ground alone. The substantive dispute raised by the application has also now been fully canvassed by both parties through affidavit evidence and written submissions. 3. I therefore decline to determine the application solely on the alleged delay in service. To do so at this stage would elevate the procedural complaint above the substantive question which both parties have now fully addressed. **Disposition** 1. In the result, I find that the interests of justice favour a limited reopening of the proceedings, but on terms that recognise the inconvenience, delay and expense occasioned to the Plaintiff. Accordingly, the Defendant/Applicant's Notice of Motion filed on 9th June 2026 succeeds to the following extent: 2. The proceedings of 4th June 2026 are hereby set aside only to the extent necessary to reopen the Plaintiff's case for purposes of cross-examination by the Defendant/Applicant. 3. The Plaintiff's examination-in-chief and the evidence already tendered shall remain on record and shall not be taken afresh. 4. The Plaintiff shall be recalled solely for cross-examination by the Defendant/Applicant and, if necessary, re-examination by her advocate arising from matters raised in cross-examination. 5. Upon conclusion of the Plaintiff's cross-examination and any re-examination, the Plaintiff's case shall stand closed, and the Defendant shall thereafter proceed with his Defence and Counterclaim in the ordinary manner. 6. The directions requiring filing of final submissions by 30th July 2026 are hereby vacated. Fresh directions on submissions shall be issued after completion of the evidentiary hearing. 7. The Defendant/Applicant shall bear the Plaintiff/Respondent’s costs occasioned by the Defendant’s non-attendance and the reopening of the proceedings, which costs are hereby assessed at KShs. 5,000 for the first hearing and KShs. 1,400 for each mention attended by the Plaintiff/Respondent totalling Kshs 7,800, payable before the reopened hearing proceeds. It is so ordered. **DELIVERED VIA MICROSOFT TEAMS AT MOMBASA THIS 27TH AUGUST 2026.** **………………………..** **HON.E.M. MWAMUYE** **SENIOR RESIDENT MAGISTRATE**