https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10791

Wangusi v Wabuyele & 2 others (Civil Case 195 of 2022) [2026] KEHC 10791 (KLR) (Civ) (16 July 2026) (Ruling) Neutral citation: [2026] KEHC 10791 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Case 195 of 2022 JN Mulwa, J July 16, 2026 Between John Wangusi Plaintiff and Busolo Wabuyele 1st Defendant Matanda Wabuyele 2nd Defendant Biketi Wabuyele 3rd Defendant Ruling 1.For determination is the motion dated 17/03/2026 filed by Busolo Wabuyele, Matanda Wabuyele and Biketi Wabuyele (hereafter the 1st, 2nd & 3rd Defendants) as against John Wangusi (hereafter the Plaintiff) pursuant to Section 1A, 1B & 3A of the Civil Procedure Act (CPA) and Article 50(1) & (2) of the Constitution seeking inter alia -:a.That the suit be re-opened and the Defendants be allowed to testify in support of their respective statements of defence dated 07/06/2012 and 08/06/2012.b.That the 1st and 3rd Defendants be allowed to testify based on the witness statement dated 19/02/2013 and be cross-examined.c.That the Defendants be allowed to file submissions.d.Spent.e.That the costs of this application be in the cause. 2.The motion is premised on grounds amplified in the supporting affidavit and supplementary affidavit sworn by Andrew Biketi Webuyele dated 17/03/2026 and 18/06/2026, respectively. 3.The Plaintiff opposes the motion by way of a replying affidavit deposed by Gillian Neky dated 20/05/2026 who cites being counsel on record for the Plaintiff duly authorized to depose in response to the Defendants motion. 4.Directions were taken on disposal of the motion by way of written submissions. The parties duly complied whereinafter counsel for parties had the opportunity of highlighting their respective submissions. 5.That said, the Court has considered the rival material and submissions, to wit, it postulates that the issue(s) for determination concern: -a.Whether the Court ought to re-open the Defendants case and allow the Defendants and their witnesses to testify?b.Who ought to bear the costs of the instant motion? Whether the Court ought to re-open the Defendants case and allow the Defendants witness(es) to testify 6.In presenting the instant motion, the Defendants rely on among other provisions Section 3A of the CPA which specifically reserves “the inherent power of the court “to make such orders as may be necessary for ends of justice or to prevent abuse of the process of the court”, to wit, this Court’s inherent powers was judiciously addressed by the Court of Appeal in Rose Njoki Kingau & another v Shaba Trustees Limited & another [2010] KECA 87 (KLR) and requires no restatement. 7.However, before I proceed any further, it necessitates that the Court sets out in brief, the history leading hereto, in order to contextualize the application that is presently for consideration. As can be garnered from the record, the suit proceeded for hearing of the Plaintiffs case on 15/07/2025, to its logical end.Upon conclusion of the Plaintiff’s case, Koki Mbulu - Advocate for the Defendant, intimated to the Court that she had two (2) witnesses in respect of the defence case, to wit, the defence case was adjourned to 16/09/2025 with attendant directions that the Defendants prepare and file their trial bundle within 30 days. 8.On the latter date, the defence case did not take off, as the Court was informed that the Defendants were bereaved, a consequence of which, the defence case was further adjourned, by consent to 13/10/2025. 9.When the suit eventually came up on the aforestated date, counsel appearing for the Defendants informed the Court that he wished to apply to cease acting for the Defendants. The said application was vehemently opposed by counsel for the Plaintiffs for reasons that the Defendants advocate had participated in the hearing of the Plaintiff’s case, and that the issue as advanced by the Defence counsel at the time, had not been communicated. . Counsel for the Plaintiff went on to insinuate that the application by defence counsel was a delaying tactic therefore the Court ought to proceed and close the Defendants case in any event. 10.In a brief extempore ruling, this Court proceeded to address itself as follows, and I quote ad verbum-;“The Plaintiff’s case was concluded on 15/07/2025. The Defendants have indicated to the Court that they will not call any evidence and yet seek an adjournment.For the above, the Court proceeds to have the Defendants case closed. Parties shall file written submissions. Plaintiff to file and serve within 14 days. Upon service, the Defendants shall have 14 days too. Return for compliance on 13/11/2025 and taking a judgment date. 11.It is on the premise of the above proceedings and directions that the Defendants presented the motion that is presently for consideration before this Court. 12.As I understand the gist of the relief(s) sought for by the Defendants, on the premise of the brief facts of the matter earlier illuminated in this ruling, the Defendants essentially seek to set aside this Court directions of 13/10/2025, towards having their case re-opened and thus allowed to defend and adduce evidence in the matter. 13.Here, the grant or refusal to set aside or vary an order, judgment or any consequential decree or order, is discretionary, wide, and unfettered. However, the discretion must be exercised judicially and justly. The rationale for the discretion to set aside conferred upon the Court was spelt out in the case of Shah –vs- Mbogo and Another [1967] E.A 116:“The discretion to set aside an ex-part judgment is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error but it is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the cause of justice.” 14.The principles enunciated in Shah –vs- Mbogo (supra) were amplified further by Platt JA in Bouchard International (Services) Ltd v M'Mwereria [1987] KLR 193. Although the Courts in the above cases were contemplating applications to set aside ex parte judgments, the principles pronounced therein apply with equal measure in this matter. Indeed, the orders of this Court on 13/10/2025, had the effect of finality, by way of closing the Defendants case. 15.Keeping in mind the above principles, the gist of the Defendants affidavit material in support of the motion is that their father, one Joseph Wabuyele Makewa, passed away on 11/09/2025. That the months leading up to his death he was quite sickly and thereby required their care and attention. That due to the distress of death and grief they were unable to deal with the hearing of the suit on 13/10/2025 therefore the Court ought to allow their motion in order to allow the Defendants' witnesses testify in the matter. The deponent concludes by stating that failure to proceed with matter on 13/10/2025 was occasioned by grief, sadness and not sheer impunity. 16.In riposte, the Plaintiff contends that the Defendants were afforded adequate opportunities to present their defence but failed to do so through their own conduct. That following the adjournment granted due to the death of the Defendants' father, the parties consensually fixed the defence hearing for 13/10/2025. Despite this, the Defendants neither communicated any inability to proceed nor sought an adjournment in advance. 17.Instead, on the hearing date, their counsel informed the Court that they lacked instructions to proceed and further indicated that the Defendants did not intend to call any defence witnesses. The Plaintiff contends that these material events, which are reflected in the Court record, were omitted from the present application and contradict the Defendants' reliance on bereavement as the reason for re-opening their case. 18.The Plaintiff further contends that the application is an afterthought aimed at remedying the Defendants' own failure to prosecute their defence, noting that it was filed nearly six (6) months after the defence case had been closed without any explanation for the delay. 19.While the Defendants' right to a fair hearing had already been accommodated through the adjournment granted by the Court and the opportunity to select a convenient hearing date, and that such right cannot be exercised in disregard of Court timelines or to the prejudice of the Plaintiff. The Plaintiff also cites the lengthy history of the dispute and the Defendants' previous procedural objections to argue that the present application lacks merit and should be dismissed so that the matter, which has been in litigation for over seventeen (17) years, may be brought to a final conclusion. 20.In rejoinder, the Defendants contend that at no point was representation made that the Defendants would not testify in defence of matter whereas on account of being based in the United States of America where they work and reside, failing to attend to the matter on 13/10/2025 was not a waiver on their right to be heard, that the Defendants have a triable defence and have equally filed witness statements in the matter whereas the Plaintiff having failed to demonstrate the prejudice he will suffer if the motion is allowed, the Court ought to proceed to allow it as prayed. 21.Applying my mind to the facts and rendition emanating from Shah –vs- Mbogo (supra) concerning the discretion invoked which is “intended to avoid injustice or hardship resulting from accident, inadvertency or excusable mistake or error but it is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the cause of justice”, as noted elsewhere in this ruling, when the matter came up for hearing on 16/09/2025 it was adjourned at the behest of the Defendants, to a mutually convenient date of 13/10/2025, on grounds of bereavement. 22.It is on the latter date that upon hearing representations from counsel in the matter, that the Defendants counsel intimated their intention to cease from acting for want of instructions while equally confirming that the Defendants would not be calling any evidence. Therefore, I reasonably believe it to be disingenuous of the Defendants to now depose that no such representation was made yet the record is indisputable on the issue. 23.Further, I equally agree in part that as at 13/10/2025, the representation made to the Court was that counsel lacked the requisite instruction to proceed with the matter however what appears to be advanced vide the instant motion is inadvertent inability to proceed with matter due to grief and sadness with absence of wanton impunity to forestall hearing of the suit. 24.As rightfully argued by the Plaintiff, the latter was not the representation made on 13/10/2025 yet it appears from the instant motion the Defendants have employed a different tangential argument in seeking to urge the Court to re-open their case. 25.While I appreciate, grief due to bereavement afflicts us in different ways, I maintain that it is disingenuous on the part of the Defendants to assert the same at this juncture yet as at when the matter came up on 13/10/2025, the forestated was not obtaining position. 26.It is trite that cases belong to the litigants who file them and not counsel. Here, given the age of the matter, this Court was tactful to accord the Defendants an adjournment on 16/09/2025 meanwhile given the proceedings of 13/10/2025 and reasons advanced in the instant motion, it appears that the Defendants would be abusing the Court's tactfulness. 27.The Defendants case was marked closed on 13/10/2025 yet the instant application was only presented on or about the 17/03/2026, five months after. No explanation has been offered for the identifiable delay. Therefore, it would not be farfetched to agree with the Plaintiff that the duration of delay in this matter if not inordinate is equally unexplained in any event. 28.I must add that, a party seeking to vary, set aside an order and or reinstate a suit must show candour. It is likewise settled that a party seeking to set aside an order and or reinstate suit must not be seen to presume on the Court’s discretion. Good and sufficient cause is what would unlock the court’s discretion, not dishonest and uncalled for accusations of the court by counsel. 29.Whereas Makhandia JA in Patrick Wanyonyi Khaemba v Teachers Service Commission, Board of Management, Kapletingi Mixed Day Secondary School & Francis Tanui [2019] KECA 112 (KLR), exhorted that-;“The law does not set out any minimum or maximum period of delay. All it states is that any delay should be explained; hence a plausible and satisfactory explanation for delay is the key that unlocks the court’s flow of discretionary favour. There have to be valid and clear reasons, upon which discretion can be favourably exercisable……” 30.At a time when Courts are deluged with heavy caseloads, it is not enough for a party to be caught up with the unwarranted closing of their cases while laying blame on peripheral factors without acknowledging their responsibility in respect of such summary action by the Court. 31.Equally parties and counsel are duty bound to co-operate with the Court in the furtherance of the overriding objective to facilitate the just, expeditious, proportionate, and affordable resolution of disputes in accordance with Section 1A and 1B of the Civil Procedure Act. 32.Prolonged delay in the prosecution of claims defeats the overriding objective and may well result in unjust outcomes for the innocent party. Regarding the above provisions, the Court of Appeal stated the following in Karuturi Networks Limited & another v Daly & Figgis Advocates [2009] KECA 8 (KLR):-“The jurisdiction of this Court has been enhanced and its latitude expanded in order for the Court to drive the civil process and to hold firmly the steering wheel of the process in order to attain the overriding objective…. and its principal aims. In our view, dealing with a case justly includes inter alia reducing delay, and costs expenses at the same time acting expeditiously and fairly. To operationalize or implement the overriding objective, in our view, calls for new thinking and innovation and actively managing the cases before the court.” 33.The suit herein has been pending for over fifteen (15) years since its filing. While I acknowledge that the Defendants proceeded to file its list and bundle of documents that incorporates witness statements from the 1st & 3rd Defendant, it may well be that they have evidence to adduce in support of their defence. 34.That said, the fundamental question to be considered, is whether justice can still be done between the parties. Additionally, the Court concurs with the Plaintiff’s sentiments, that by re-opening the matter, of which embodies the Defendants right to a fair hearing, such right is not unlimited and must be exercised in accordance with Court directions and without prejudicing the Plaintiff. 35.As is, the Plaintiff has already rendered his case and all that is left is for the Defendants to mount their defence. The Plaintiff has not alluded to any potential difficulty in assailing the Defendants case, in such event. Meanwhile, noting that it is only the Defendants who have yet to present their case the Court can issue appropriate directions with a view to curbing any further delay towards disposal of the matter. Moreover, denying a party the right to be heard should be a matter of last resort, as held in Pithon Waweru Maina v Thuka Mugiria [1983] KECA 117 (KLR). In that case, the Court of Appeal while asserting that the discretion of the Court to set aside is wide and unfettered spelt out relevant considerations in an application of this nature to include, the nature of the action, whether it is just and reasonable to grant the prayer for setting aside, the prejudice on the respondent and whether he can reasonably be compensated by costs for any delay occasioned. See also Vishva Stone Suppliers Company Limited v RSR Stone (2006) Limited [2020] [2020] KECA 361 (KLR). Therefore, given the aforestated reasons any prejudice to the Plaintiff can be compensated through an award of costs. 36.All considered, it appears to the Court that the justice of the case lies in allowing the motion conditionally, to facilitate the Defendants right to hearing. The Court therefore allows the motion on condition that the Defendants case be fully prosecuted within three 3 months, (excluding the upcoming court recess) i.e from 15/9/2026, failing which it will stand automatically closed. 37.To expedite the matter, the Court will equally direct that a priority defence hearing date be fixed at delivery of this ruling in virtual court. 38.Lastly, costs of the instant motion are awarded to the Plaintiff in any event, to be mutually agreed and or taxed.Orders accordingly. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 16TH DAY OF JULY 2026.……………………….JANET MULWA.JUDGE