https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4752

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAIROBI** **ELCC NO. 102 OF 2020** **PALE KENYA LIMITED……………..................…….....PLAINTIFF/APPLICANT** **-VERSUS-** **PAULINA NGOMI MWANGANGI………….....……DEFENDANT/RESPONDENT** **RULING** 1. Before me is the notice of motion dated 13th February, 2026 filed by the plaintiff/applicant and it is expressed to be brought under **Article 50** of the **Constitution** and **Sections 1A, 1B and 3A** of the **Civil Procedure Act, Order 10 Rule 11, Order 12 Rule 6 and 7, Order 9 Rule 9, Order 45 and Order 51 Rule 1** of the **Civil Procedure Rules** seeking the following orders:- 2. ***Spent.*** 3. ***The firm of Rapando & Odunga Advocates be granted leave to come on record for the plaintiff/applicant in place of Anthony Kago & Company Advocates post judgment.*** 4. ***Pending the hearing and determination of this application, an order be and is hereby issued staying and or suspending the judgment and decree delivered on 15th December, 2025.*** 5. ***The judgment delivered by this honourable court on 15th December, 2025 be and is hereby set aside in its entirety.*** 6. ***The order of this court issued on 23rd April, 2025 dismissing the plaintiff/applicant’s suit be and is hereby set aside.*** 7. ***An order reinstating the plaintiff/applicant’s suit be and is hereby issued.*** 8. ***An order that the suit be heard de novo is hereby issued.*** 9. ***The costs of this application be provided for.*** 10. The application is premised on the grounds on its face and further supported by the affidavit of the plaintiff/applicant Hon. Onesmus Kimani Ngunjiri, the plaintiff/applicant’s director sworn on even date. The plaintiff/applicant deposed that they always believed the suit was pending hearing and determination, however, on 10th February, 2026 the caretaker on the suit property, Amos Muthinja Mbae, was visited by individuals sent by the defendant/respondent. 11. The plaintiff/applicant deposed that they viewed the property and shared a copy of a judgment dated 15th December, 2025 which allowed the defendant/respondent’s counterclaim, ordered the cancellation of its title and directed their eviction. That upon receipt of the judgment, they were surprised and they immediately contacted their lawyer, Mr. Antony Kago of Anthony Kago & Company Advocates, who claimed to be completely unaware of the judgment or the suit’s hearing dates. 12. Further, that on 11th February, 2026 they instructed the firm of Rapando & Odunga Advocates to investigate the court file where it was discovered that on 23rd April, 2025 the plaintiff/applicant’s suit had been dismissed for want of prosecution and the counterclaim heard in their absence on 16th July, 2025. 13. The plaintiff/ applicant deposed that the missed court dates resulted from administrative failures by their former advocates. Further, that the affidavits of service showed that hearing notices for both April and July 2025 court dates were sent to oadvocates@gmail.com. which they later learnt from the advocates that they had stopped using the said email in April 2021 and had switched to kaomburulaw@gmail.com. In addition, that thehearing notices were addressed to Anthony Kago & Company Advocates at Kenindia House, Loita Street but the firm had changed its name to Kago Mburu Advocates and relocated to S. K Offices, Rhapta road, Westlands. 14. The plaintiff/applicant deposed that they had established that the former advocates never filed a formal notice of change of address or particulars thus the court and opposing counsel continued to serve an address and email that had long been closed down. For this reason, its failure to attend court on 23rd April, 2025 was not intentional but attributable to the lack of proper service and their advocate’s failure to update their contact information on the record. 15. In response thereto, the defendant/respondent filed her replying affidavit sworn on 24th February, 2026. She deposed that the plaintiff/applicant never participated in any court proceedings regarding the instant matter since March 2022 nor have they taken any steps to obtain a hearing date for their own suit. She further deposedthat the firm Antony Kago & Co. Advocates has not officially disassociated itself from the case as there is no official complaint of professional negligence. She added that such a mistake must be admitted by the counsel themselves and not the plaintiff/applicant. 16. The defendant/respondent deposed that the plaintiff/applicant was using the present application as a deliberate delaying tactic to illegally continue enjoying the benefits of the suit property. She added that since the plaintiff’s/applicant’s director has continuously disobeyed previous court orders, he cannot now seek favorable orders from the court. 17. The plaintiff/applicant filed its further affidavit sworn by Anthony Kago, advocate on 13th May, 2026. He deposed that in November 2020, he transitioned from a sole proprietorship Antony Kago & Associates to a partnership Kago, Mburu & Associates which resulted in a change of physical office and email addresses. He deposed that he erroneously omitted to serve the court and the defendant/respondent with a formal notice of change of address, which inadvertently caused the case to be dismissed. 18. The learned counsel deposed that when the Covid-19 pandemic struck, he lost track of the suit and the plaintiff’s/applicant’s file leading to complete surprise when he was presented with the judgment. Further, that the defendant’s/respondent’sadvocate acted in bad faith since the application dated 1st December, 2020 bore his new firm’s address and email and therefore they were reasonably aware of his new contact information by 1st March, 2021. 19. The learned counsel deposed that the affidavits of service which were used to dismiss the suit relied on his outdated email address and concealed crucial facts that were reasonably foreseeable. Further, that his own mistakes and error should not be visited upon the plaintiff/applicant. He further deposed that the dispute involved a serious question of land ownership, which should be resolved on its actual merits rather than being discarded due to procedural technicalities caused by an advocate. 20. The application was canvassed by way of written submissions. The plaintiff/applicant filed its written submissions dated 15th May, 2026 while the defendant/respondent filed her submissions dated 8th May, 2026. 21. I have considered the application, responses and the parties’ submissions. The issue for determination is *whether the application has merit.* 22. **Order 10 Rule 11** of the **Civil Procedure Rules** provides as follows: ***“Where judgment has been entered under this Order the court may set aside or vary such judgment and any consequential decree or order upon such terms as are just.”*** 1. It is noteworthy that there are two types of ex parte judgments, regular and irregular. In the case of **James Kanyiita Nderitu & another V Marios Philotas Ghikas & another [2016] KECA 470 (KLR)** the court held that: *“****We shall first address the ground of appeal that faults the learned judge for setting aside the default judgment and consequential orders in the circumstances of the case. From the outset, it cannot be gainsaid that a distinction has always existed between a default judgment that is regularly entered and one, which is irregularly entered. In a regular default judgment, the defendant will have been duly served with summons to enter appearance, but for one reason or another, he had failed to enter appearance or to file defence, resulting in default judgment. Such a defendant is entitled, under Order 10 rule 11 of the Civil Procedure Rules, to move the court to set aside the default judgment and to grant him leave to defend the suit. In such a scenario, the court has unfettered discretion in determining whether or not to set aside the default judgment, and will take into account such factors as the reason for the failure of the defendant to file his memorandum of appearance or defence, as the case may be; the length of time that has elapsed since the default judgment was entered; whether the intended defence raises triable issues; the respective prejudice each party is likely to suffer; whether on the whole it is in the interest of justice to set aside the default judgment, among other. See Mbogo & Another v. Shah (supra), Patel v. EA. Cargo Handling Services Ltd (1975) EA 75, Chemwolo & Another v. Kubende [1986/ KLR 492 and CMC Holdings v. Nzioki [2004/ 1 KLR 173) In an irregular default judgment, on the other hand, judgment will have been entered against a defendant who has not been served or properly served with summons to enter appearance. In such a situation, the default judgment is set aside ex debito justitiae, as a matter of right...’’*** 1. In the instant case, the default judgment falls under the category of a regular judgment. In determining whether the court should set aside the said judgment, the court is guided by the circumstances that led to the plaintiff/applicant’s failure to attend court or testify leading to entry of the default judgment. 2. From the proceedings, the plaintiff/applicant’s last appearance in this matter was on 24th March, 2022. Any change of address of the learned counsel’s firm, the physical address and email address are unknown to the court as no document effecting these changes were filed. The plaintiff/applicant through his former advocate admitted that he mistakenly failed to notify the court and the respondent by failing to file a notice of change. 3. I have also considered the time from which the plaintiff/applicant was active in court to the time the present application was filed, and this culminates to a difference of more than three years. In the case of **Edney Adaka Ismail V Equity Bank Limited [2014] eKLR** the court held as follows:- ***“It is not enough for a party to simply blame the advocate but must show tangible steps taken by him in following up his matter.”*** 1. The changes in the learned counsel’s address are not persuasive grounds for setting aside the judgment. The plaintiff/applicant knew very well that the suit is yet to be heard. Since 24th March, 2022 the plaintiff/applicant and its advocate either abandoned the suit or went into slumber which justifies the inordinate delay. Failure by the plaintiff/applicant to follow up its case for more than three years is unexplainable. 2. I find no plausible reason to exercise discretion in favour of the plaintiff/applicant. Consequently, the notice of motion dated 13th February, 2026 is hereby dismissed with costs to the defendant/respondent. It is so ordered. **DATED, SIGNED & DELIVERED VIRTUALLY ON** **THIS 23RD DAY OF JULY, 2026.** **HON. MBOGO C.G.** **JUDGE** **23/07/2026.** ***In the presence of:*** *Mr. Benson Agunga - Court assistant* *Mr. Mutemi for the Defendant/Respodent* *Ms. Morara for the Plaitniff/Applicant*