https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/198

Motanya & another v Mahinda (Civil Suit 659 of 2014) [2026] KEMC 198 (KLR) (25 June 2026) (Ruling) Neutral citation: [2026] KEMC 198 (KLR) Republic of Kenya In the Nakuru Law Courts Civil Suit 659 of 2014 PA Ndege, SPM June 25, 2026 Between Michael M. Motanya 1st Plaintiff Patrick A. Nyaigoti 2nd Plaintiff and Mwangi Charles Mahinda Defendant Ruling 1.Before me is a Notice of Motion dated 5/11/2025 filed pursuant to Order 12 Rule 7 and 51 Rule 1 of the Civil Procedure Rules (2010), Sections 1A, 1B and 3A Civil Procedure Act, Articles 48, 50 and 159(2) (d) of the Constitution of Kenya, 2010 seeking the following orders;a.Spentb.That pending hearing and determination of this application, there be a stay of the orders made on 5th November 2025 closing the defendant’s case and directing filling of submissions.c.That the orders of 5th November 2025 be set aside and the defendants case reopened to allow cross-examination by the plaintiffs’ counsel.d.That the costs of this application be in the cause. 2.The application is supported by the 5 grounds on the face of it, the Affidavit of Owen Magata, an Advocate of the High Court of Kenya, sworn on 5/11/2025 and his Supplementary Affidavit sworn on 16/02/2026. The application is opposed via a Replying Affidavit of the Defendant sworn on 02/02/2026. Plaintiffs’ submissions 3.The plaintiffs also made submissions in writing dated 14/04/2026 on the issues of whether the absence of the plaintiffs’ counsel was excusable in the circumstances and whether the plaintiffs will suffer irreparable prejudice if denied the opportunity to cross-examine the defendant. In their submissions they argued that their absence in the virtual hearing was due to power blackout disrupting internet connectivity and the defendant’s argument that power was in court house is a non sequitur citing the case of Teiyai Ole Ntumari v Paul Osoro Momanyi (2025) KEELC 7167 (KLR), where the court acknowledged the said reasons as reasonable grounds for non-attendance. 4.. They also argue that the defendant has testified on a suit whose core allegations are fraud and breach of contract arising from a 11-year-old dispute and the prejudice to the plaintiffs if cross- examination is not allowed is self- evident and higher compared to the defendant’s. Also, that it is a violation of their constitutional rights under Article 50 and Article 159(2)(d), the right to fair trial and right to substantive justice without undue regard to technicalities if the court fails to reopen the defence case. The plaintiffs do not object to paying a reasonable amount of costs as condition of relief but the demand of Kshs. 30,000 by the Defendants is punitive and unsupported by evidence. Defendants submissions 5.The defendants opposed to the application via a replying affidavit dated 2/02/2026 sworn by the Defendant in which they argued that there was no blackout as alleged by the counsel and that having been given several adjournments does not automatically grant the plaintiffs an adjournment. That should the court be inclined to grant leave he should be awarded Kshs. 30, 000 for the travel expenses incurred. That however no evidence was provided to support the claim. Issues for Determination 6.The issues for determination herein are whether the plaintiffs have met the legal threshold to grant them the orders sought herein. In the case of Nicholas Kiptoo Arap Korir Salat v. IEBC and 7 Others (2014) eKLR the Supreme Court provided guiding principles that must be met by the applicant as follows;a.Sufficient cause / reason for the delayb.Whether the application to set aside the order has been brought without undue delay.c.Whether the defendant will suffer prejudice that cannot be compensated by damages.d.Discretion of Court and in the interest of Justice. 7.I find that the plaintiffs’ application herein has satisfied and met the above set guidelines. Further applying precedents set on application of discretion such as shah v Mbogo & Another (1967) e KLR, I find that the prejudice suffered by the defendant can be cured by throw away costs. 8.The court considering the findings hereinabove is therefore inclined to grant the orders sought by the applicant, and do therefore hereby set aside the orders made on 5/11/2025 and allow the reopening of the defence case for cross-examination by the plaintiffs’ counsel on the condition of payment of throwaway costs of Kshs. 15,000 to the defendant. Costs of the application in cause. DATED, SIGNED AND DELIVERED AT NAKURU ON THIS 25TH DAY OF JUNE 2026 A.P NDEGESENIOR PRINCIPAL MAGISTRATE In the presence of;Plaintiffs’ Counsel: MagataDefence Counsel: n/a1st Plaintiff: n/a2nd Plaintiff: n/aDefendant: n/aMagatta: May we mention the matter before court 1 for reallocation.CT: Mn before ct 1 on 07/07/26 for reallocation. MNTI.