Janda v Muigai (Commercial Case E460 of 2020) [2026] KEHC 6001 (KLR) (Commercial and Tax) (30 April 2026) (Ruling)

HCCOMM NO. E460 OF 2020 P. MULWA, J. REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI COMMERCIAL AND TAX DIVISION COMMERCIAL CASE NO. E460 OF 2020 TINOMUDA JANDA..............................PLAINTIFF/RESPONDENT VERSUS PHARES THUMBI MUIGAI....................DEFENDANT/APPLICANT RULING 1. The Respondent/applicant filed the Notice of Motion dated 7th October 2025, brought under Sections 1A, 1B, 3A and 95 of the Civil Procedure Act, Order 12 Rule 7, Order 51 Rule 1 of the Civil Procedure Rules 2010. The applicant seeks the following orders: i. ii. Spent An order setting aside the proceedings and the subsequent orders issued on 22nd September 2025 and all other consequential orders against the Defendant. iii. An order arresting the judgment to accord the Defendant/applicant herein an opportunity to be heard and cross -examine the plaintiff witnesses. iv. An order re-opening the plaintiff’s case and heard afresh, and recall the plaintiff’s witnesses to be cross- examined by the Defendant and the defendant’s witnesses to testify. Page 1 of 8 HCCOMM NO. E460 OF 2020 P. MULWA, J. v. Leave be granted to the Defendant/applicant to be heard and give their evidence in the matter for fair and just determination of the suit. vi. Any other orders that the court may deem fit vii. Costs of the Application 2. The application is supported by the annexed affidavit of Paul Mwangi, the advocate in conduct of the matter for the Defendant, who attributes the failure to attend court on the hearing date to a misdiarization of the matter on 22 nd October 2025 in place of 22nd September 2025. It is contended that the non-attendance was inadvertent, not deliberate, and that unless the orders sought are granted, the Defendant will be shut out from being heard, contrary to the right to a fair hearing under the Constitution. 3. The Defendant/Applicant, in his further affidavit, denies any intention to obstruct the proceedings and maintains that his conduct throughout has been bona fide and directed at securing a determination of the dispute on the merits. He attributes the Preliminary Objection and adjournments to legitimate reasons, and explains that the non-attendance on 22nd September 2025 arose from an inadvertent misdiarization by counsel, which ought not to be visited upon him. 4. He acknowledges the Plaintiff’s incurred costs, expresses willingness to reimburse the same, and contends that no prejudice will be suffered by the Plaintiff that cannot be Page 2 of 8 HCCOMM NO. E460 OF 2020 P. MULWA, J. compensated by costs. He maintains that denial of an opportunity to be heard would occasion injustice and urges the Court to set aside the ex parte proceedings in the interests of substantive justice. 5. The Plaintiff opposes the application through the replying affidavit of its counsel, Rosemary Wangari Chege, sworn on 3rd November 2025, contending that the Defendant has, throughout the proceedings, engaged in a pattern of delay in the disposal of the matter. She contends that the Defendant failed to enter an appearance in time, filing and abandoning a preliminary objection, and repeatedly seeking adjournments. 6. She further contended that despite the court marking the adjournment of 20th March 2025 as the last adjournment at the instant of the Defendant, the Defendant failed to attend court on 22nd September 2025, and that the present application is a further attempt to delay the conclusion of the matter. Analysis and determination 7. I have considered the application, the affidavits on record and the submissions of the parties. The issue for determination is whether the Applicant has established sufficient cause to warrant the setting aside of the ex parte proceedings and the reopening of the Plaintiff’s case. Page 3 of 8 HCCOMM NO. E460 OF 2020 P. MULWA, J. 8. The jurisdiction of this Court to set aside ex parte proceedings is anchored under Order 12 Rule 7 of the Civil Procedure Rules, which grants the Court discretion to set aside or vary such orders upon such terms as may be just. 9. The principles guiding the exercise of that discretion are well settled. In Shah v Mbogo [1967] EA 116, the Court held that the discretion is intended to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake, but not to assist a litigant who has deliberately sought to obstruct or delay the course of justice. 10. It is not in dispute that the hearing date of 22nd September 2025 was taken by consent. The explanation advanced for non-attendance is that the Counsel mis- diarized the date. The question, therefore, is whether such an explanation constitutes sufficient cause. 11. The Court has consistently held that a mistake of counsel, where bona fide and excusable, ought not to be visited upon an innocent litigant. However, that principle is not absolute and must be weighed against the conduct of the party and the need to ensure the expeditious disposal of cases. 12. I have considered the material placed before the Court. While the Plaintiff has demonstrated that the Applicant has previously sought adjournments, there is no evidence placed before the Court to show that the non-attendance on the material day was deliberate or intended to obstruct justice. 13. On the contrary, the explanation of misdiarization, though regrettable, is plausible and not uncommon in Page 4 of 8 HCCOMM NO. E460 OF 2020 P. MULWA, J. litigation practice. In the absence of evidence of bad faith, the Court is inclined to treat the omission as excusable. 14. The Courts generally have discretion to allow the reopening of cases only when it serves justice and does not cause undue prejudice. Order 18 Rule 10 of the Civil Procedure Rules grants the court powers to recall any witness who has been examined. It provides thus: “The court may at any stage of the suit recall any witness who has been examined, and may, subject to the law of evidence for the time being in force, put such questions to him as the court thinks fit.” 15. Further, Section 146 (4) of the Evidence Act states as follows: “The court may in all cases permit a witness to be recalled either for further examination-in- chief or for further cross-examination, and if it does so, the parties have the right of further cross-examination and re-examination respectively.” 16. The Court is expected to consider whether such an application is strategically used to delay proceedings. In Samuel Kiti Lewa v Housing Finance Co. of Kenya Ltd & another [2015] KEHC 3930 (KLR) it was held that: “The court retains discretion to allow re-opening of a case. That discretion must be exercised judiciously. In exercising that discretion, the court should ensure that such re-opening does Page 5 of 8 HCCOMM NO. E460 OF 2020 P. MULWA, J. not embarrass or prejudice the opposite party. In that regard re-opening of a case should not be allowed where it is intended to fill gaps in evidence. Also, such prayer for re-opening of the case will be defeated by in ordinate and unexplained delay.” 17. Further Article 50 (1) of the Constitution provides for a right to fair hearing and stipulates that: “Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.” 18. In the present case, the Applicant has not been heard at all. Denying the application would effectively shut out the him from participating in the trial. On the other hand, any prejudice to the Plaintiff can adequately be compensated by an award of costs. 19. I am also guided by the persuasive reasoning in Maiyo & another v Ng’enyi [2025] KEELC 8649 (KLR): “I appreciate that this will cause delay but my view is that it is better that all parties are given opportunity to present their case rather than go home thinking that the outcome would have been different had it not been for them being denied opportunity to state their claim or defend it.” Page 6 of 8 HCCOMM NO. E460 OF 2020 P. MULWA, J. 20. Balancing all the foregoing considerations, I am satisfied that this is a proper case for the exercise of the Court’s discretion in favour of the Applicant. 21. Accordingly, the Notice of Motion dated 7th October 2025 is allowed on the following terms: i. The ex parte proceedings conducted on 22nd September 2025 and all consequential orders are hereby set aside. ii. The Plaintiff’s case is hereby reopened. iii. The Plaintiff’s witnesses shall be recalled for purposes of cross-examination by the Defendant. iv. The Defendant is granted leave to present his witnesses. v. The Defendant/Applicant shall pay throw- away costs of Kshs 50,000 to the Plaintiff within 14 days from the date herein. Orders accordingly. RULING delivered virtually, dated and signed at NAIROBI This 30th day of April 2026. P.M. MULWA JUDGE In the presence of: Ms. Chege for Plaintiff/Respondent Ms. Karimi h/b for Mr. Macharia for Defendant/Applicant Page 7 of 8 HCCOMM NO. E460 OF 2020 P. MULWA, J. Court Assistant: Lispa Page 8 of 8