https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7245

Maggy Agulo Construction Co Ltd v Ministry of Public Health & 5 others (Civil Case 9 of 2021) [2026] KEHC 7245 (KLR) (26 May 2026) (Ruling) Neutral citation: [2026] KEHC 7245 (KLR) Republic of Kenya In the High Court at Vihiga Civil Case 9 of 2021 JN Kamau, J May 26, 2026 Between Maggy Agulo Construction Co Ltd Plaintiff and Ministry Of Public Health 1st Defendant Ministry Of Public Works 2nd Defendant County Government Of Vihiga 3rd Defendant Vihiga County Tender Committee 4th Defendant The Hon. Attorney General 5th Defendant and Rioba Omboto & Co Advocates Interested Party Ruling Introduction 1.In the Notice of Motion dated and filed on 27th January 2022, the 3rd and 4th Defendants sought that the Notice of Change of Advocate dated 15th December 2021 and filed by the firm of Rioba Omboto & Co Advocates for the Plaintiffs and all documents filed by the said advocate be struck out or expunged from the record of the court, that the orders given on 17th November 2021 and or issued on 1st December 2021 be reviewed and set aside, that the judgment of the court entered against the 3rd and 4th Defendants be reviewed and or set aside, that the 3rd and 4th Defendants be granted leave to file and serve a defence out of time and that the suit do proceed to hearing and determination on merit. 2.Esther Andisi, Principal Legal Officer in the office of the County Attorney, swore an affidavit in support of the said application on 27th January 2022. She averred that the order was made accessible to the 3rd Defendant on 1st December 2021, by which timelines given for compliance had already expired. It added that the order contained errors on the date it was given since two dates were stated, being 12th November 2017 and 17th November 2021. 3.The 3rd Defendant stated that it could not comply with the order of deposit of the decretal sum since its budget had been frozen through a judgment of the court. It added that the date for filing a defence had lapsed, hence the instant application. 4.It averred that the firm of M/S Rioba Omboto & Co Advocates filed a Notice of Change of Advocates to replace M/S Kiveu Advocate and was pursuing execution of the judgment in which they were not a party, which was a violation of the Civil Procedure Rules. It was, therefore, emphatic that said firm of M/S Rioba Omboto & Co Advocates had no right of audience for non-compliance with the rules of change of advocate, hence making their documents in the file incompetent. 5.It contended that the Plaintiff had no claim against it since the Plaintiff’s claim arose in the years 2010-2012, when the County Government of Vihiga was non-existent, having come after 2013. It asserted that the 1st, 2nd , and 4th Defendants were entities not known in law and could not, therefore, be sued in their names. It termed the Plaintiff’s claim incompetent and urged this court to allow it to defend the suit as it had a valid defence . 6.In opposition to the said application, Margaret Savai Agulo swore a Replying Affidavit on 24th July 2025, on behalf of the Plaintiff herein. The same was filed on 30th July 2025. 7.The Plaintiff termed the 3rd and 4th Defendants’ present application as an afterthought, frivolous, vexatious, devoid of merit, and brought in bad faith on the basis of misconceived allegations. It added that the application was fatally defective because a draft defence was not attached . 8.It averred that the Defendants filed an application dated 11th November 2021, where they sought leave to file their defence out of time, which application was granted on condition that they deposit the decretal sum in court. It contended that the 3rd and 4th Defendants failed to file the defence and deposit the decretal sum, which culminated in a contempt application, which was, however, disallowed. 9.It was emphatic that the Defendants had shown unwillingness to file a defence before the inception of the matter in 2021 or to deposit the decretal sum even after receiving the orders issued on 1st December 2021. It pointed out that the present application was similar to the application dated 19th April 2021 and was aimed at delaying her from enjoying the fruits of litigation. It was its averment that if at all there was an error in the order, the Defendants should have sought review and not filed another application relitigating already determined matters. 10.It was emphatic that the firm of Rioba Omboto & Co advocates was already replaced by the current firm, and since the issue of representation was never raised, the 3rd Defendant was estopped from raising the issue at this stage. 11.It argued that the prayer for a stay of execution was premature as there was no proclamation warranting a stay. It further asserted that some of the health services were devolved to the County Government and that misjoinder of parties could not affect the substratum of the suit. It, therefore, urged this court to dismiss the application with costs. 12.The 3rd Defendant’s Written Submissions were dated and filed on 13th October 2025, while those of the Plaintiff were dated 19th September 2025 and filed on 2nd October 2025. The Ruling herein is based on the said Written Submissions, which both parties relied on in their entirety. Legal Analysis 13.The 3rd Defendant submitted that on 5th September 2017, the Deputy Registrar at Kakamega entered or endorsed the interlocutory judgment in default of filing a defence in favour of the Plaintiff. They stated that the firm of M/S Rioba Omboto & Co Advocates took over the matter from the firm of M/S Kiveu & Co Advocates and filed a Notice of Change of Advocate dated 15th December 2021 on 20th December 2021 contrary to Order 9 Rule 9 of the Civil Procedure Rules, which provided that such a change could only be effected by order of the court or consent of parties. They asserted that all other firms that took over the matter were also not properly on record, as they failed to follow the proper legal procedure. 14.They submitted that the orders of 17th November 2021 were not clear since in Paragraph 1 of the said orders, the court directed service of its present application in hard copy to the Plaintiff whereas at Paragraph 2 of the court order, the court seemed to allow the application on conditions that full decretal amount together with interest accrued be deposited in court within seven (7) days and the pleadings and Witness Statements be filed in court within the same period. 15.They maintained that from the orders, it was not clear whether the court had determined the application or it was still pending. They asserted that this was an error, hence the reason for review. They invoked Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, which provides for grounds for review. 16.They added that the orders were also contrary to Order 42 Rule 8 of the Civil Procedure Rules to the effect that the government did not need to deposit the decretal amount. They cited the case of Daniel Nzomo Wambua (deceased) vs Makueni County Government, Environment 7 Land Case 355 of 2017(2023) KEELC17418(KLR)(sic), where the court observed that no orders for deposit of security of costs could issue against the government, which included the County Government that was protected from the requirements of Order 42 Rule 6 and 7 of the Civil Procedure Rules. 17.They were emphatic that the decretal sum was huge and could not be withdrawn without the authority of the Controller of Budget. They further stated that a default judgment could not be entered against the Government in line with Order 10 Rule 8 of the Civil Procedure Rules. They asserted that the judgment was, therefore, irregularly entered and sought that the same be set aside. They argued that the Plaintiff filed an application dated 19th April 2021 seeking leave to enter judgment in default of appearance, but the same was not prosecuted. 18.They placed reliance on Article 50 of the Constitution and stated that they were willing to defend the suit. They urged this court to review the impugned orders and allow them to file a defence. 19.On its part, the Plaintiff reiterated the averments in the Replying Affidavit of Margaret Savai Agulo and submitted that the 3rd Defendant could not purport to use the overriding objective principle as a shield for their negligence and abuse of the court process. 20.It placed reliance on the case of Muchanga Investments Ltd vs Safaris Unlimited (Africa) Ltd & 2 others [2009] KECA 453 (KLR) and Kenya Section of the International Commission of Jurists vs Attorney General & 2 Others Criminal Appeal No. 1 of 2012 [2012]eKLR, where it was held that abuse of court process was a term that was applied generally to proceedings that were oppressive, vexatious and frivolous and wanting in bona fides. 21.It also relied on the case of Kenya Commercial Bank Limited vs Kenya Planters Co-operative Union [2010] KECA 302 (KLR), where the court stated that the provision was not intended to cover mistakes or lapses of counsel or negligent acts, dilatory tactics, or acts constituting abuse of the court process, but rather, the courts would strike out such applications. The said court emphasised that advocates and their clients had a duty to assist the court in managing the cases. 22.It maintained that there were no positive or executable orders issued against the 3rd Defendant, hence the application for stay was misconceived and premature. It referred this court to the case of Western College of Arts and Applied Sciences vs EP Oranga & 3 others [1976] KECA 15 (KLR), where the Court of Appeal found that the High Court had merely dismissed the suit and such an order could not be executed. She asserted that the 3rd Defendant was seeking to appeal the order dismissing the application, which order was not capable of being stayed. 23.It asserted that the joinder or misjoinder of a party did not affect the substratum of the suit, and she invoked Order 1 Rule 9 of the Civil Procedure Rules, which states that no suit shall be defeated by reason of the misjoinder or non-joinder of parties, as was also held in the case of Zephir Holdings Ltd vs Mimosa Plantations Ltd, Jeremiah Maztagaro and Ezekiel Misango Mutisya (2014) eKLR. 24.It reiterated that as the functions and powers of the county government include, inter alia, county health services, including in particular county health facilities and pharmacies as provided in Article 187(2) and Part 2, Paragraph 2 of the Fourth Schedule of the Constitution, the 3rd Defendant took over those functions. It argued that the blame for non- payment to the could not lie elsewhere. 25.This court noted that the 3rd Defendant had sought that the pleadings that had been filed by the firm of M/S Rioba Omboto & Co Advocates be expunged from the court records. Notably, on 23rd September 2022, P.J. Otieno J granted M/S Githogori & Harrison Associates LLP leave to come on record for the Plaintiff herein. It, therefore, followed that this issue had been overtaken by events. In any event, the orders had been issued by a judge of equal and competent jurisdiction as this court, and consequently, this court could not purport to review the orders of the said judge. 26.This court did not also address itself to the prayers for stay of execution because the same were pending the hearing and determination of the present application, as they were spent. 27.It was apparent from the court record that the impugned orders were given on 17th November 2017. In the said orders, the 3rd and 4th Defendants were ordered to serve their application for leave to defend upon the Plaintiff by the close of business on that day. They were also granted leave to defend the suit on condition that they deposited the full decretal sum together with interest accrued into court and to file all the pleadings and witnesses’ statements within seven (7) days. Notably, the 3rd Defendant’s counsel was in court when the aforesaid orders were given, 28.This court noted the 3rd Defendant’s argument that the orders that were issued by the said Judge were irregular since default judgment could not be entered against the government, and that a government entity could not be ordered to deposit security. However, the impugned orders were given by Farah Amin J. For the same reason that the said judge was of equal and competent jurisdiction of this court, this court could not, therefore, review and/or set aside the said orders, as doing so would be tantamount to sitting on appeal of her decision. Those issues were in the purview of the appellate jurisdiction. 29.Having said so, it was trite law that every party had a right to access any court or tribunal to have its dispute heard and determined as had been well encapsulated in Article 50(1) of the Constitution of Kenya, 2010.“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.” 30.Further, Order 50 Rule 6 of the Civil Procedure Rules was very clear that even where a party had delayed in doing an act, there was always a provision that would give it reprieve to seek justice. The said Order 50 Rule 6 of the Civil Procedure Rules provides as follows:-“Where a limited time has been fixed for doing any act or taking any proceedings under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed:Provided that the costs of any application to extend such time and of any order made thereon shall be borne by the parties making such application, unless the court orders otherwise.” 31.Taking all the factors hereinabove into account, it was the considered view of this court that it was in the interests of justice (emphasis court) that the 3rd Defendant be given an opportunity to have its case heard on merit as the amount claimed was such a colossal amount. 32.Indeed, the power to grant orders in the interest of justice and/or for the ends of justice (emphasis court) was well captured in Section 3A of the Civil Procedure Act that states that: -“Nothing in the Act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice (emphasis court) or to prevent abuse of the process of the court.” Disposition 33.For the foregoing reasons, the upshot of this court’s decision was that the 3rd and 4th Defendants’ Notice of Motion application dated and filed on 27th January 2022 was merited and the same be and is hereby allowed in terms of Prayer No (8) therein as follows:-1.That the 3rd and 4th Defendants shall file and serve their Memorandum of Appearance, the Statement of Defence, witnesses’ statements, and documentary evidence within fourteen (14) days from the date of this Ruling.2.For the avoidance of doubt, in the event that the 3rd and 4th Defendants shall default on Paragraph 31(1) hereinabove, the Plaintiff will be at liberty to take such action to safeguard its interests. 34.As it will be punitive to award costs to a government against its citizen, this court deviated from the principle that costs follow the event and hereby directs that each party will bear its own costs of this application. 35.It is hereby directed that this matter will be mentioned before the Deputy Registrar of the High Court, Vihiga, on 23rd June 2026 for further orders and/or directions on the disposition of the same. 36.It is so ordered. DATED AND DELIVERED AT VIHIGA THIS 26TH DAY OF MAY 2026J. KAMAUJUDGE