https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5314

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT ELDORET** ***(Coram: C.N. Ondieki, J.)*** **ELC CASE NUMBER 392 OF 2013** **BETWEEN** **KIBET RUTO....................................................PLAINTIFF/RESPONDENT** **AND** **SAMUEL KIPLETING BETT…………………………..DEFENDANT/APPLICANT** **RULING** **PART I: INTRODUCTION** 1. This Application seeks twin orders of setting aside an *Ex Parte* Judgment plus all subsequent Decree and/or Orders arising therefrom; and setting down the suit for hearing *de novo.* The impugned *Ex Parte* Judgment was delivered on 10th October 2017 by my learned sister, **Hon. M.A. Odeny, J.** 2. Gleaning from the record, the Plaintiff and Defendant are (biological) brothers. The bone of contention is a parcel of land - **Kiplombe/Kiplombe Block 4 (Kiplombe) 305** **(hereinafter “the suit property”)** – one of the sub-divisions emanating from a parcel of land which originally allegedly belonged to their father. From the record, it seems to me that the Defendant occupied 1.6 acres of the suit property. Vide a Plaint dated 16th July 2013 and filed on 22nd July 2013, the Plaintiff brought this action against the Defendant primarily seeking Judgment for: 1. **A permanent injunction restraining the Defendant from trespassing into the Plaintiff’s parcel of land being Kiplombe/Kiplombe Block 4 (Kiplombe) 305; and** 2. **Costs of the suit.** **PART II: THE DEFENDANT/APPLICANT’S APPLICATION** 1. On 9th April 2026, the Defendant/Applicant (hereinafter “the Applicant”) filed a Notice of Motion of even date - expressed to be made pursuant to Order 10 rule 11 and Order 51 rule 1 of the Civil Procedure Rules (hereinafter “the CPR”); sections 1A, 1B, 3A and 63 of the Civil Procedure Act (hereinafter “the CPA”); and Article 50 and 159(2) of the Constitution of Kenya - in which the Applicant seeks the following Orders: * 1. *Spent* *.* * 1. *Spent.* 2. **THAT the Honourable Court be pleased to set aside the *ex parte* Judgment and/or Decree delivered on 10th October 2017 and any eviction orders emanating therefrom.** 3. **THAT subsequently, this Honourable Court be pleased to Order the hearing of the suit to start *de novo*.** 4. **THAT the costs of this Application be in the cause.** 1. This Application is predicated on the grounds advanced on the face of the said Notice of Motion and facts deposed in the Affidavit in support of the Motion sworn on even date by the Applicant and the Further Affidavit sworn by the Applicant on 4th June 2026. 2. In the said Notice of Motion, it is averred that the Applicant **was not served with a hearing notice in respect to the hearing which was slotted on 12th July 2017** and that the Affidavit of Service sworn by Silas K. Kandie on 11th July 2017 is **false and untrue.** It is averred further that the Applicant has a good and meritorious defence, as demonstrated in the Statement of Defence already filed by the Applicant. It is thus averred that it will be in the interest of justice that the suit be heard on merit. 3. In the said Supporting Affidavit, the facts averred in the Motion are largely rehashed. In addition, the Applicant depones that even if the mediation failed, they later mended the fence with his elder brother, the Plaintiff/Respondent herein and agreed to abandon this suit and that they thereafter co-habited the suit property peacefully as he continued to occupy and farm the portion he had been occupying until 4th February 2026 when the Plaintiff’s son threatened to harm him if he failed to vacate the suit property. He depones further that on 5th February 2026, he reported the threats to Baharini Police Station. Further, the Applicant depones that he later sought legal advice and upon perusal of the Court record, he learnt that unknown to him and since he genuinely believed that the matter had been abandoned, the Plaintiff/Respondent had proceeded to prosecute the suit *ex parte* to its conclusion resulting in the said Judgment. He finally depones that in this context, this Court has been approached without undue delay. The following were exhibited: a copy of the Defence as SKB-1; **a copy of the impugned *Ex Parte* Judgment dated 10th October 2017 as SKB-2; and a copy of an OB Report dated 5th February 2026 as SKB-3.** 4. In the said Further Affidavit, the following were exhibited: a copy of the Decree arising from the said Judgment marked as SKB-4**.** 5. In his written Submissions dated 5th June 2026 and filed on even date, learned Counsel Mr. Menjo instructed by the Firm of Messieurs Menjo & Company Advocates, rehashed the substance of the Application. 6. Citing the provisions of Order 10 Rule 11 of the CPR, it is submitted that this Court has been approached to set aside the said *Ex Parte* Judgment and any consequential decree or order upon such terms as are just. In this regard, counsel advances a proposition that this Court is conferred with wide discretionary power citing **Patel vs. EA Cargo Handling Services Ltd [1974] EA 75,** for this proposition. 7. It is further advanced that the said wide discretionary power to set aside the said Judgment is to avoid injustice or hardship resulting from an accident, inadvertence or excusable mistake or error, placing reliance upon **Shah vs. Mbogo & another [1967] 1 EA 116** for this proposition. 8. Counsel submits the considerations in such circumstances were laid in the recent persuasive decision of **Muriungi vs. Nkuene (Civil Appeal E1261 of 2024) [2025] KEHC 16909 (KLR)** as follows: ***(i) Whether the Judgment was regularly or irregularly entered; (ii) Whether the Applicant has a meritorious defence; (iii) Whether a plausible explanation has been offered in respect to the period of delay; and (iv) The balance of prejudice and in particular, whether the Respondent will be prejudiced by the setting aside and if yes, if the prejudice can be compensated by award of costs.*** 9. In relation to the first question whether the Judgment was regularly or irregularly entered, it is submitted that it was not, the Applicant having not been served with the hearing notice. In this regard, it is argued that the Applicant was not served with a hearing notice for 12th July 2017 and that the Affidavit of Service sworn by Silas K. Kandie on 11th July 2017 is not only false and untrue, but also defective on account of the fact that the said Silas K. Kandie failed to attach his Practicing Certificate to the said Affidavit of Service and hence failed to prove that he is a licenced Court Process Server. 10. Regarding the question whether the Applicant has a meritorious defence, it is answered in the affirmative, advancing that the defence raises weighty issues of customary trust and beneficial interest; that the Plaintiff sold his share of land. In this regard, counsel proposes that this Court be guided by the principle laid in **Tree Shade Motors Limited vs. D.T. Dobie and Company (K) Limited & another [1998] KECA 40 (KLR)** that the Court’s said discretionary power of setting aside should be exercised only after considering whether the Draft Defence raises triable or valid defence. In further connection to this, it is argued that if the Draft Defence or Defence disloses even one triable issue, it is sufficient, citing **Muriungi vs. Nkuene (Civil Appeal E1261 of 2024) [2025] KEHC 16909 (KLR)** to fortify this proposition. 11. In respect to the question whether a plausible explanation has been offered in respect to the period of delay, it is answered in the affirmative, stating that the discovery was made on 4th February 2026 and this Application was filed on 9th April 2026. Regarding the failure to attend the said hearing, it is argued that the Applicant having mended the fence with his elder brother, the Plaintiff/Respondent herein and agreed to abandon this suit, he genuinely believed that the matter had been abandoned and hence his absence in Court on 12th July 2017 and he did not therefore deliberately absent himself from Court to obstruct justice which then amounts to an excusable mistake or error on his part within the purport thereof in **Shah vs. Mbogo & another [1967] 1 EA 116.** 12. Lastly, relating to the question of balance of prejudice, it is submitted that it favours the Applicant since the Respondent will not be prejudiced by the order setting aside the *Ex Parte* Judgment and if there is, it can be compensated by award of costs. 13. Further, it is submitted that the overriding objective of the CPA is to do justice, which is also the same objective of the inherent jurisdiction of this Court. Further, it is argued that Article 159(2)(d) of the Constitution requires the Court to do justice without undue regard to technicalities. 14. Finally, on the question of being *functus officio* raised by the Respondent, it is submitted that this Court is not *functus officio* by dint of Order 10 Rule 11 of the CPR. **PART III: THE PLAINTIFF/RESPONDENT’S CASE** 1. This Application is opposed. In his Replying Affidavit dated 20th May 2026 and filed on even date, the Plaintiff/Respondent (hereinafter “the Respondent”) deposes that the Application is incompetent, improper, brought in bad faith and fatally defective. It is deposed that the Applicant was at all times aware of existence of the suit and indeed entered appearance and filed a Statement of Defence but neglected his duty to appear on the hearing date and defend it. It is deposed that the allegations that he was not served with a hearing notice for the hearing which was slotted on 12th July 2017 is unfounded. It is deposed that the affidavit of service has not been challenged through a proper legal procedure. It is deposed that while it is true that out-of-Court negotiations were attempted, when they failed, they agreed that the suit be determined by the Court and that negotiations did not prevent the Applicant from attending his matter in Court. Finally, it is deposed that this Court is now ***functus officio*** since the Decree has been executed and that the Applicant is guilty of inordinate delay in lodging this Application. The following were exhibited: **a copy of the Defence marked KR-1; and a copy of the Affidavit of Service dated 11 July 2017 marked KR-2.** 2. In his written Submissions dated 22nd June 2026 and filed on even date, learned Counsel Mr. Tarigo instructed by the Firm of Messieurs Tarigo Kiptoo & Company Advocates, proposed four questions for determination as follows: ***(i) whether the procedure of service was duly complied with as per the requirements of Order 5 Rule 15 of the CPR; (ii) whether the Honourable Court should set aside the Ex Parte proceedings and Judgment; (iii) when the Defendant has a bona fide defence; and (iv) who should bear costs of the Application?*** 3. In relation to the question whether the procedure of service was duly complied with as per the requirements of Order 5 Rule 15 of the CPR, it is answered in the affirmative, citing KR-2. In this connection, it is urged that the Applicant having failed to discharge his burden under section 107 of the Evidence Act to challenge the depositions, the affidavit evidence remain unscathed. 4. Regarding the question whether this Court should set aside the *Ex Parte* proceedings and Judgment, it is urged that the Applicant has failed to estabilish a firm foundation since he deliberately failed to attend the hearing and the learned Judge properly exercised her discretionary power under Order 12 Rule 2(a) of the CPR. Reliance is placed upon **James Kanyiita Nderitu & another vs. Marios Philotas Ghikas & another, Civil Appeal No. 6 of 2015 eKLR,** [sic],for the proposition that if the *Ex Parte* Judgment is regular, then the Court is vested with discretionary power to determine whether it can be set aside or not, unlike an irregular *Ex Parte* Judgment which the Court lacks discretion except to set it aside even *suo moto* and that having been duly served with the hearing notice, the Applicant has offered no sufficient cause which prevented him from attending the hearing; and that no plausible reason has been offered by the Applicant to explain the inordinate delay 10th October 2017 when the *Ex Parte* Judgment was delivered and 9th April 2026 when this Application was filed; and that the balance of prejudice tilts against the Respondent and it cannot be compensated by award of costs; and ultimately, it will be the interest of justice not to set aside the *Ex Parte* judgment, therefore. For the same proposition, further reliance is placed upon **Esther Wamaitha Njihia & 2 Others vs. Safaricom Ltd,** [sic]**;** and **Shah vs. Mbogo & another [1967] EA 116,** [sic]. In relation to the meaning of ‘sufficient cause’, reliance is placed upon **Wachira Karanni vs. Bildad Wachira [2016] KEHC 6334 KLR,** which adopted the meaning in the Supreme Court of India case of **Parimal vs. Veena**[sic]. 5. In respect to the question whether the Defendant has a *bona fide* defence, placing reliance upon **Job Kilach vs. Nation Media Group Ltd, Salaba Agencies Ltd & Michael Rono,** [sic],it is urged that the Applicant has demonstrated no *bona fide* triable issue which requires further interrogation by this Court. It is further urged that since the Ex Parte is regular and since there is no triable issue demonstrated, this Court lacks the jurisdiction to set it aside, citing the rendition in **Chemwolo & another vs. Kubendi [1986] KLR** for this proposition. In this connection, counsel argues that the Applicant did not plead fraud, illegality, misrepresentation or any statutory ground capable of challenging the title of the Respondent. 6. Finally, regarding costs, it is urged that the Respondent is entitled to costs of this Application. **PART IV: QUESTIONS FOR DETERMINATION** 1. Commending themselves for determination - gleaning from the said Notice of Motion; the said Further Affidavit; the Replying Affidavit; and the rival written Submissions - are two questions as follows: 1. **Whether this Application has met the threshold for setting aside the *Ex Parte* Judgment dated 10th October 2017 plus any consequential decree and/or order(s) arising therefrom and set the suit down for hearing *de novo*.** 2. **Which party should shoulder the costs of this Application?** **PART V: ANALYSIS AND DETERMINATION** 1. This Court now embarks on analysis of the law, examination of facts, evaluation of evidence and determination of each of the two questions, *seriatim.* **(i) Whether this Application has met the threshold for setting aside the *Ex Parte* Judgment dated 10th October 2017 plus any consequential decree and/or order(s) arising therefrom and set the suit down for hearing *de novo*.** 1. Foremost, desirous of an edifying contextualization of the analysis hereinafter, I wish to discuss the broader context of *ex parte* decisions or *ex parte* proceedings (hereinafter collectively referred to as ***“ex parte proceedings”***) contemplated by the CPR, all of which are governed by the same guiding principles on the front of Applications to set such proceedings aside. In particular, I wish to put in perspective the provisions of Orders 17, 10 and 12 of the CPR and their legal interplay. 2. On one hand, Order 17 of the CPR provides for four (4) principal rules which govern prosecution of suits. Of particular interest to this Application, are Rules 3 and 4 thereof, which provide as follows: **“3. Procedure if parties fail to appear on day fixed [Order 17, rule 3.] Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order 12, or make such other order as it thinks fit. 4. Court may proceed notwithstanding either party fails to produce evidence [Order 17, rule 4.] Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the suit forthwith.”** 3. On the other hand, Order 12 of the CPR makes provision for hearing and the consequence of non-attendance. Of relevancy to this Application is Rules 2(a) thereof, which provides as follows: **“2. When only Plaintiff attends [Order 12, rule 2.] If on the day fixed for hearing, after the suit has been called on for hearing outside the Court, only the Plaintiff attends, if the Court is satisfied — (a) that notice of hearing was duly served, it may proceed *ex parte*; (b) that notice of hearing was not duly served, it shall direct a second notice to be served; or (c) that notice was not served in sufficient time for the Defendant to attend or that for other sufficient cause the Defendant was unable to attend, it shall postpone the hearing.”** {Emphasis supplied} 4. And so, in entering the impugned *Ex Parte* Judgment, my learned sister invoked, properly so, Order 17 Rules 3 and 4 of the CPR, read with Order 12 Rule 2(a) of the CPR. 5. Order 12 Rule 7 of the CPR provides for the procedure to be adopted in the event a party is aggrieved by the decision of the Court of dismissing or entering *Ex Parte* Judgment and it provides as follows: **“7. Setting aside judgment or dismissal [Order 12, rule 7.] Where under this Order judgment has been entered or the suit has been dismissed, the Court, on Application, may set aside or vary the judgment or order upon such terms as may be just.”** 6. On the third hand, Order 10 of the CPR makes provision the consequences of non-appearance after being served with a Memorandum of Appearance; default of Defence after being served with a Memorandum of Appearance and failure to serve a Memorandum of Appearance and Plaint, leading to a **Judgment in Default of Appearance or Defence** **or an Order dismissing the suit on account of failure to serve a Memorandum of Appearance and Plaint.** Order 10 Rule 11 of the CPR, consequently, makes provision for the procedure to be adopted in the event a party is aggrieved by the decision of the Court of entering a **Judgment in Default of Appearance or Defence** **or an Order dismissing the suit on account of failure to serve a Memorandum of Appearance and Plaint** – which provisions are *para materia* similar to Order 12 Rule 7 of the CPR - the distinguishing point being that whereas Order 12 Rule 7 provides for setting aside an ***Ex Parte* Judgment or an Order dismissing a suit on account of want of prosecution,** Order 10 Rule 11 provides for setting aside a **Judgment in Default of Appearance or Defence or an Order dismissing the suit on account of failure to serve a Memorandum of Appearance and Plaint.** Order 10 Rule 11 provides as follows: **“11. Setting aside judgment [Order 10, rule 11.] 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.”** 7. It is instructive to further elaborate that there are two clusters of **Judgments in Default of Appearance or Defence** contemplated Order 10 of the CPR namely a **Final Judgment or an Interlocutory Judgment.** A **Judgment in Default of Appearance or Defence** contemplated Order 10 of the CPR – entered as a consequence of non-appearance or default of Defence - can either be **Final Judgment, as per Order 10 Rule 4 of the CPR,** if the claim is purely liquidated which does not require further assessment unlike general damages; or **Interlocutory Judgment as per Order 10 Rule 6 of the CPR,** if claim seeks pecuniary damages only or for detention of goods with or without a claim for pecuniary/general damages and there is thus need to set down the suit for assessment of damages or the value of the goods and damages as the case may be. 8. Looking at the provisions invoked in the said Notice of Motion, it is discernible that this Court was approached under the wrong provisions of law, the Applicant having cited Order 10 Rule 11 of the CPR (which should only be invoked in the event an Applicant seeks an order of the Court to set aside a **Judgment in Default of Appearance or Defence or an Order dismissing the suit on account of failure to serve a Memorandum of Appearance and Plaint),** instead of Order 12 Rule 7 of the CPR(which is the proper provision to invoke in the event of a party aggrieved with an ***Ex Parte* Judgment,** like was the case here). 9. Be it as it may, it’s now a settled principle that rules are handmaids of justice and that the overriding objective (otherwise popularly known as the oxygen principle) of the CPA; CPR; The Environment and Land Court Act (hereinafter “ELC Act”); and The Practice Directions on Standardization of Practice and Procedures in the Environment and Land Court, 2025 (hereinafter “PDELC”), is to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the said Acts. See section 1A (1) of the CPA; section 3(1) of the ELC Act; and Practice Direction 4 of the PDELC. The framework for giving effect to the oxygen principle resides in the double-edged and symmetrical obligations reposed in both the Court and parties. On one hand, parties and their advocates, if any, are obligated to assist the Court to further the said oxygen principle by *inter alia,* participating in the processes of the Court and complying with the directions and orders of the Court. See sections 1A (3) of the CPA and 3(3) of the ELC Act. On the other hand, in striking a delicate balance towards attainment of the said oxygen principle, the Court is obligated to progress all matters committed to it for resolution for the purpose of attaining the just determination; efficient disposal; efficient use of the available judicial and administrative resources; the timely disposal thereof to keep in check inter alia the cost element of suits; leveraging suitable technology; and serving the ends of justice in this regard. See section 1B of the CPA; and Practice Direction 23(m) of the PDELC. Accordingly, whenever a Court is construing any of the provisions of the CPA; ELC Act and Rules under both Acts, the Court is enjoined to always train its eye on giving effect to the said oxygen principle. See section 1A (2) of the CPA; section 3(2) of the ELC Act; and Practice Directions 4 & 23(m) of the PDELC. In this context, this Applicant’s procedural blooper finds a saving grace in Article 159(2)(d) of the Constitution, which obligates this Court to administer justice without undue regard to procedural technicalities. 10. What then are these guiding principles which govern Applications seeking an order of the Court to set aside *ex parte* proceedings (which entail either an ***Ex Parte* Judgment or Order dismissing a suit on account of want of prosecution** contemplated by Order 12 of the CPR; or a **Judgment in Default of Appearance or Defence (whether in form of a Final Judgment or an Interlocutory Judgment) or an Order dismissing the suit on account of failure to serve a Memorandum of Appearance and Plaint, contemplated by** Order 10 of the CPR)? 11. Broadly speaking, *ex parte* proceedings which were taken **irregularly** are inevitably amenable to an order setting them aside, *ex debito justitiae* or as **Ringera J (as he was then)** put it in **Mwalia vs. Kenya Bureau of Standards [2001] 1 EA 151,** that such should be set aside ***“bila maneno.”*** Put differently, *ex parte* proceedingsmust be set aside as a matter of right or of course. In such circumstances, a Court is stripped of discretionary power (to elect whether or not they should be set aside). In this connection, having reached a conclusion that the proceedings and consequential orders were taken irregularly in circumstances where there was no proper service and in setting the *ex parte* proceedings aside in **Mwalia vs. Kenya Bureau of Standards [2001] 1 EA 151, Ringera, J.** (as he then was), in his usual elegant language remarked as follows: **“All in all, I think this is a case where the interests of justice demand that the default judgment be set aside so that both parties can approach the judgment seat with the merits of their respective cases. The only issue is on what terms. In having come to the unequivocal view that the judgment herein was irregular, I am of the opinion that it should be set aside *ex debito justitiae* and *bila maneno.* And for the speedy progression of the action, I will direct that both an appearance and defence be filed and served expeditiously on the Plaintiff. The upshot of this matter is that I order the default judgment entered herein on 9 August 2000 and all consequential orders set aside with costs to the Plaintiff. I also order that the Defendant do file and serve on the Plaintiff a memorandum of appearance and a defence within ten days from today.”** 12. In contrast, if the *ex parte* proceedingswere taken **regularly**, in circumstances where proper service had been effected, the Court is reposed with unfettered discretionary power in determining whether to grant or decline the Application to set them aside. It’s instructive to point out that the said unfettered discretionary power is gesticulated by the carefully selected words under Order 10 Rule 11 of the CPR and Order 12 Rule 7 of the CPR that **“the Court may set aside or vary such judgment and any consequential decree or order upon such terms as are just.”** 13. What then is test of a regular or irregular *ex parte* proceedings? **The simple determinative test is whether the Applicant had notice of the hearing or proceedings.** The crux of impeaching *ex parte* proceedings is typically the absence of proper notice of the proceedings on the part of the Applicant, which absence then renders the *ex parte* proceedings irregular for grossly offending the doctrine of *audi alteram partem* which is now entrenched as part of the right to fair hearing guaranteed by Article 50(1) of the Constitution. In **Fidelity Commercial Bank Limited vs. Owen Amos Ndungu and Another, H.C.C. Number 241 of 1998**, the Court drew the following parallels between a regular and irregular judgment: “...**Where summons to enter appearance has been served, and there is default in entry of appearance, the *ex parte* judgment in default is regular. But where the *ex parte* judgment sought to be set aside is obtained either because there was no proper service or any service at all of the summons to enter appearance, such judgment is irregular, and the affected Defendant is entitled to have it set aside as of right.”** 14. It was in **James Kanyiita Nderitu & another vs. Marios Philotas Ghikas & another [2016] KECA 470 (KLR)** (hereinafter ***“the Kanyiita case”***),where the Court of Appeal reiterated the settled principle that unlike *ex parte* proceedings over which the Court lacks discretion except to set them aside (even *suo moto*), if the impugned *ex parte* proceedings are regular, the Court reserves unfettered discretionary power to determine whether they can be set aside or not, of course turning on the fulcrum of a host of determinative factors including but not limited to the following: 1. **whether there is a sufficient cause which prevented the Applicant from attending the hearing or entering appearance or filing a defence, as the case may be;** 2. **the length of time that has elapsed since the *Ex Parte* or default judgment was entered and whether a plausible explanation has been offered in respect to the period of delay;** 3. **the balance of prejudice and in particular, whether the Respondent will be prejudiced by the setting aside the *Ex Parte* or default Judgment and if yes, if the prejudice can be compensated by award of costs;** 4. **whether on the whole, it is in the interest of justice to set aside the *Ex Parte* or default Judgment, using guiding rays including but not limited to the nature of the action; whether the Applicant’s Draft Defence or Defence or Counter-Claim (if any) raises triable issues,** *et alia.* 15. See also **Shah vs. Mbogo & another [1967] 1 EA 116;** **Mbogo and another vs. Shah [1968] 1 EA 93; Mwalia vs. Kenya Bureau of Standards [2001] 1 EA 151; Francis Kipkemoi Ruto vs. Jeremiah Langat, Simon Kipngetich Kitur, Kipkemoi Tele & Charles Tele [2004] eKLR; Pithon Waweru Maina vs. Thuku Mugiria [1983] KLR 78; Kenya Ports Authority vs. Kustron (K) Ltd C. A. Civil Appeal Number 142 of 1995** **(unreported); Jesse Kimani vs. McConnel [1966] E.A. 547; Sebei District Administration vs. Gasyali [1968] EA 300;** and **Jamnadan Sodha vs. Gordhandas Hemraj [1952] 7 ULR;** the persuasive decision of **Muriungi vs. Nkuene (Civil Appeal E1261 of 2024) [2025] KEHC 16909 (KLR),** *et alia.* 16. **First,** **whether since the time service was effected, whether there is delay in making the Application to set aside.** If the Applicant was duly served but delayed to exercise his right, apart from offending Article 159(2)(b) of the Constitution that justice shall not be delayed and apart from further offending the obligation reposed on parties and their advocates under section 1B of the CPA to assist the Court to further the said oxygen principle, it has been held consistently that **delay has a conceivable effect in relation to availability of witnesses or resulting in faded memories of witnesses which then contribute to decision on whether the justice of the case requires that the case be re-opened so as to try it on its merits.** The two factors clearly came out in the now timeless *cause celebre* and *locus classicus* precedent in matters discretion namely **Mbogo and another vs. Shah [1968] 1 EA 93,** where **Sir Charles Newbold P,** while adverting to the test enunciated by **Harris, J. in Kimani vs. McConnell ([1966] E.A. 547),** said that **“This is a very broad statement of the matters to be considered by a Judge on such an Application and I agree with it. Here, as the Vice-President has already said, there were factors on each side. On the one side, it seems to me the most relevant factor is that the insurance company had always made it clear that on the story it had received of the accident there was no negligence on the part of its insured, and thus no liability on the part of the insurance company to the injured person. On the other side the most material factor, it seems to me, was the fact that inasmuch as the insurance company had a contractual right to take over the conduct of any suit and obviously would do so for its own protection, yet having been offered an opportunity to accept service in a letter dated August 5, 1965, from the Advocates for the Plaintiff, it in effect refused that offer by a letter from its Advocates dated September 1, 1965. …The Judge also referred to other factors. Delay and its possible effect in relation to witnesses are, of course, factors to be borne in mind in determining whether, looked at as a whole, the justice to the case requires that the case be re-opened so as to try it on its merits. But I think, by and large, the main factor which decided the Judge not to re-open the case was this act of the insurance company in refusing to accept service of the proceedings, which act was the direct reason why this case came to Judgment ex parte and not after consideration of contested facts. One must not forget that justice looks both ways and very often a Judge has to draw a line between two rather conflicting cases, each of which has some justice on its side. Now that is what the Judge did in this case.”** Also, in the Judgment of **Law JA,** in the same **Mbogo and another case,** His Lordship rendered himself thus: **“It was in my view clearly relevant that the insurance company refused to accept service of the summons on behalf of the Defendants, and that only a month before the plaint was filed a notice was served on the company informing them that a suit was being instituted. These are all matters which the Judge was entitled to take into consideration, as he did, in deciding whether the interests of justice required him to allow the company to re-open the case by setting aside the ex parte Judgment obtained by the Respondent. The Courts’ power to set aside a Judgment under O. 9, r. 10, is an unconditional discretionary power, and this Court will not interfere with the exercise of such a discretion unless clearly satisfied that the Judge was wrong. I can only say that I am not so satisfied and I would accordingly dismiss this appeal.”** In the Judgment of **Sir Clement De Lestang V-P,** His Lordship also agreed that service having been effected the high Court **“…refused it, however, on the ground, as I understand his Judgment, that while the Court would exercise its discretion to avoid injustice or hardship resulting from inadvertence or excusable mistake or error it would not assist a person who has deliberately sought to obstruct or delay the course of justice which, in his view, the company had done in the present case…The principal matters against his decision are first, the fact that the company was not notified of the actual filing of the suit against the appellants. It was merely notified about a month previously of the intention to file the suit and second the fact that from the very beginning the company let the Respondent know that it wanted to defend the action, disclosed its defence and gave all the information which the Respondent sought and did not delay the filing of its Application to set aside the Judgment. The principal matters supporting the decision are the fact that a notice of intention to sue was served on the company and its refusal to accept service on behalf of the appellants, and its failure to give any explanation for so doing in its Application to have the Judgment set aside. In the normal course of things the company would have had to defend the action if it really wanted to avoid liability and it is difficult to understand, without any explanation, why it adopted that attitude. Obviously this latter factor greatly influenced the learned Judge and led him to conclude, when taken together with the conduct of the company as a whole, that it was trying, as he put it, to obstruct or delay the course of justice.”** 17. **Second, the nature of the action should be considered, the Defence if any should also be considered; and so, should the question as to whether the Plaintiff can reasonably be compensated by costs** for any delay bearing in mind that to deny a litigant a hearing should be the last resort of a Court. See **Sebei District Administration vs. Gasyali and others [1968] 1 EA 300.** And in **Pharmaceutical Products Ltd vs. Development Bank of** **Kenya & 2 others**, **HCC No. 572 of 2003, Waweru, J.** held that the Court must also remember that to shut a litigant out of the Court should be the Court’s last resort. 18. **Third,** **the reason for failure to attend should be considered,** to test whether there was any sufficient cause to justify the failure. See **Esther Wamaitha Njihia & 2 Others vs. Safaricom Ltd (2014) eKLR; Wachari Karani vs. Bildad Wachira [2016] eKLR,** *et alia.* 19. **Fourth,** **where for instance, an Applicant was accorded an ample opportunity to defend himself but failed to do so for no sufficient cause until he was threatened with attachment, the Defendant cannot later be allowed to inflict undue hardship to the claimant who has been diligently pursuing his case.** Due diligence of the Applicant in pursuing his/her matter is a factor. The doctrine of *audi alteram partem* read together with the Constitution of Kenya requires that every person is given an opportunity to be heard or defend himself but it does not require the Court should bend backwards to accommodate a party who after being accorded the opportunity, deliberately fails to do so, since in counter-balancing rights, the successful party too has a right to enjoy the fruits of his/her Judgment. See **Kennedy Makasembo vs. Kenya Union of Post Primary Education Teachers [2017] eKLR; Ndong’iora v Munyi (Land Case Appeal E031 of 2025) [2026] KEELC 2867 (KLR) (14 May 2026) (Judgment);** [**Habo Agencies Limited vs. Wilfred Odhiambo Musingo [2016] KECA 477 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2016/477/eng%402016-06-24)**;** **Muriithi vs. Njogu & 6 Others (Civil Appeal E069 of 2021) [2025] KECA 1426 (KLR),***et alia.* 20. I find it instructive to underscore that although the four principal factors enunciated in ***the Kanyiita case*** are largely settled, barring the broad-based predominant factor which is whether on the whole, it is in the interest of justice to set aside the *ex parte* proceedingswhich usually is construed disjunctively and thus stands on its own feet, what remains unsettled is whether the other three factors should be construed conjunctively or disjunctively, and if construed disjunctively, which of the other three factors takes precedence over the other. On the conjunctive or disjunctive plane, if for instance the Court reaches a conclusion that the Applicant has demonstrated sufficient cause which prevented him from attending the hearing or entering appearance or filing a defence, as the case may be, which route must the Court take where the length of time which has elapsed since the *ex parte* decision was entered and the date the Court has been approached, lacks a plausible explanation? In the same scenario where sufficient cause has been demonstrated by the Applicant, what route must the Court take if the balance of prejudice favours the Respondent? This is a discussion for another day, as and when an opportunity presents itself. 21. Foremost, regular *ex parte* proceedingscan only be aside if ‘sufficient cause’ is demonstrated by the Applicant why he/she failed to attend Court on the appointed date. What then constitutes ‘sufficient cause’? In **Wachira Karanni vs. Bildad Wachira [2016] KEHC 6334 KLR,** which this Court finds persuasive, the High Court adopted the meaning thereof in the decision of the Supreme Court of India in the case of [**Parimal vs. Veena alias Bhart**](https://indiankanoon.org/doc/602824/)**i (2011) 3 SCC 545** (hereinafter ***“the Parimal case”***), which discussed in-depth the principles of setting aside an *Ex Parte* Divorce Decree under Order 9 Rule 13 of the Indian Civil Procedure Code, which is *para materia* same to our Order 10 Rule 11 of the CPR, and further discussed the purport of ‘sufficient cause’ and rendered itself as follows in paragraph 9: **“Sufficient Cause" is an expression which has been used in large number of Statutes. The meaning of the word "sufficient" is "adequate" or "enough", in as much as may be necessary to answer the purpose intended. Therefore, word "sufficient" embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the view point of a reasonable standard of a cautious man. In this context, "sufficient cause" means that party had not acted in a negligent manner or there was a want of *bona fide* on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been "not acting diligently" or "remaining inactive". However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the Court exercises discretion, it has to be exercised judiciously…”** A similar judicial view was expressed in the Ugandan case of **Captain Philip Ongom vs. Catherine Nyero Owota (Civil Appeal No. 14 of 2001) [2003] UGSC 16,** **Odoki C.J., Oder, Tsekooko, Mulenga, and Kanyeihamba JJ.S.C.** reasoned as follows: **“It is evident from this provision, that for an Application under this rule to succeed, the Court must be satisfied about one of two things, namely: - either that the Defendant was not properly served with the summons, or that the Defendant failed to appear in Court at the hearing, due to sufficient cause. It is also evident from the same provision, that once the Defendant satisfies the Court on either, then the Court is under duty to grant the Application and make the order setting aside the ex parte Decree, subject to any conditions the Court may deem fit. The modes of effecting service of summons are clearly set out in the rules of procedure, so that a Defendant who is not served in accordance with one of the modes, will be entitled to an order under the rule. However, what constitutes "sufficient cause", to prevent a Defendant from appearing in Court, and what would be "fit conditions" for the Court to impose when granting such an order, necessarily depend on the circumstances of each case. In the instant case, the appellant (Defendant) did not dispute service of summons. In his Application, he sought to satisfy the Court that for "sufficient cause" he did not file a defence and was prevented from attending Court on the hearing day. It follows that the primary concern of the Court in considering that Application was to determine whether the “cause” put forward by the appellant, was “sufficient cause”. The appellant presented his former Advocate's defaults as the cause that prevented him from filing defence, and from appearing in Court on the hearing day. In a nutshell, what the appellant averred in the Affidavit in support of his Application, was to the effect that he instructed one Walter Okidi Ladwar, an Advocate, to defend him in the suit, but that despite assurances by the said Advocate to the contrary, the Advocate did not file the defence, and though the Advocate was served with a hearing notice, he did not tell him of the hearing date. These averments were not disputed, and both Courts below believed them, hence their common view that the appellant could obtain relief from the former Advocate for professional negligence. For the purposes of Order 9 Rule 24, the cause that prevented the appellant from appearing at the hearing was that he was not aware of the hearing date, because his former Advocate who was served with the hearing notice did not disclose the date to him. Although in law service of the notice on the Advocate constituted valid service on the appellant, I would not consider the Advocate's failure, in the instant case, to comply with the notice, as failure by the appellant who did not know the contents of the notice. It is an elementary principle of our legal system, that a litigant who is represented by an Advocate, is bound by the acts and omissions of the Advocate in the course of the representation. However, in applying that principle, the Court must exercise care to avoid abuse of the system and/or unjust or ridiculous results. To my mind, a proper guide in applying the principle is its premise, namely that the Advocate's conduct is in pursuit of and within the scope of what the Advocate was engaged to do. In light of that, in my view, a litigant ought not to bear the consequences of the Advocate's default, unless the litigant is privy to the default, or the default results from failure, on the part of the litigant, to give to the Advocate due instructions. There is no reason to suggest that the appellant in the instant case was privy or otherwise responsible for his former Advocate's default. On the contrary, throughout, the Advocate misled him that he was defended when he was not, and ultimately failed to inform him when the suit was due for hearing. Obviously, he could not appear in Court (in person or by Advocate) when he did not know the hearing date, and his Advocate neglected to appear for him. He was therefore prevented from appearing by "sufficient cause". In my view, that "cause" cannot be any less sufficient by reason of the fact that it also resulted from the Advocate's gross professional negligence, as appears to be implicit in the Judgment of the Court of Appeal and in Mr. Walubiri's Submissions in this appeal. Whether or not the appellant has a cause of action against his former Advocate, is immaterial and irrelevant to the issue whether he was prevented by "sufficient cause" from appearing in Court.”** Similarly, the tenor of ‘sufficient cause’ was elucidated in the decision of Court of Appeal of Tanzania in **The Registered Trustees of the Archdiocese of Dar es Salaam vs. The Chairman Bunju Village Government & Others (Civil Appeal No. 482 of 2017) [2019] TZCA 298**, the Court had this to say: **“It is difficult to attempt to define the meaning of the words ‘sufficient cause’. It is generally accepted however, that the words should receive a liberal construction in order to advance substantial justice, when no negligence, or inaction or want of *bona fides*, is imputed to the appellant.”** Likewise, the Court of Appeal in the case of **Daphne Parry vs. Murray Alexander Carson [1963] EA 546** had the following words to say about what constitutes sufficient cause: **“Though the Court should no ‘doubt’ give a liberal interpretation to the words ‘sufficient cause,’ its interpretation must be in accordance with judicial principles. If the appellant has a good case on the merits but is out of time and has no valid excuse for the delay, the Court must guard itself against the danger of being led away by sympathy...”** It is discernible from ***the Parimal case***, that unlike other Courts which have proceeded with circumspection, the Supreme Court of India came closest to certitude about the meaning of ‘sufficient cause’. And so, in **Daphne Parry vs. Murray Alexander Carson [1963] EA 546,** it was held that though the provision for extension of time requiring “sufficient reason” should receive a liberal construction, so as to advance substantial justice, when no negligence, nor inaction, nor want of *bona fides,* is imputed to the appellant, its interpretation must be in accordance with judicial principles. If the appellant had a good case on the merits but is out of time and has no valid excuse for the delay, the Court must guard itself against the danger of being led away by sympathy, and the appeal should be dismissed as time-barred, even at the risk of injustice and hardship to the appellant. 22. In applying the stand-alone and broad-based predominant factor of interest of justice, the Court should inquire whether in all the facts and circumstances both prior and subsequent to the said decision, it would be just and reasonable to set aside or vary the order. In **Kimani vs. McConnell [1966] E.A. 547,** **Harris, J.** (as he then was) dealing with the question as to the circumstances to be borne in mind by a Court in Application of this nature said at page 555 that **“…in the light of all the facts and circumstances both prior and subsequent and of the respective merits of the parties, it would be just and reasonable to set aside or vary the Judgment, if necessary, upon terms to be imposed.”** 23. It goes without saying that the main concern of the Court is to do justice to the parties, in accordance with the command enacted in Order 10 Rule 11 of the CPR or Order 12 Rule 7 of the CPR, whichever is applicable. See **Patel vs. East Africa Cargo Handling Service [1974] EA 75**, per **Duffus, V.P.** Similarly, in **Branco Arabe Espanol vs. Bank of Uganda [1999] 2 EA 22**, it was held that **“The administration of justice should normally require that the substance of all disputes should be investigated and decided on their merits, and that errors, lapses should not necessarily debar a litigant from the pursuit of his rights and unless a lack of adherence to rules renders the appeal process difficult and inoperative, it would seem that the main purpose of litigation, namely the hearing and determination of disputes, should be fostered rather than hindered.”** 24. It is now important to discuss principles which govern Judges in exercise of discretionary power. 25. **First,** the orders sought by the Applicant are discretionary, which has been described as a science, not to act arbitrarily according to men’s will and private affection but according to rules of law and equity. See **Rooke’s case, 5 Rep. 99b (1598),** cited in approval by **Mativo, J. in Republic vs. Public Procurement Administrative Review Board & 2 others (2018) eKLR,** where the Court attempted to elaborate the tenor of discretion as follows: **“Discretion is a science, not to act arbitrarily according to men’s will and private affection: so the discretion which is exercised here, is to be governed by rules of law and equity, which are to oppose, but each, in its turn, to be subservient to the other. This discretion, in some cases follows the law implicitly, in others or allays the rigour of it, but in no case does it contradict or overturn the grounds or principles thereof, as has been sometimes ignorantly imputed to this Court. That is a discretionary power, which neither this nor any other Court, not even the highest, acting in a judicial capacity is by the Constitution entrusted with.”** It is in this context that the Court of Appeal stated in **Christopher Kiprotich vs. Daniel Gathua & 5 others (1976) eKLR,** that **“Although the Court’s discretion in these matters is unfettered, it must nevertheless be exercised judicially. I would not say that this was the case here. In the circumstances of this case I would approve of the principle in Jamnadas V Soda v Gordhandas Hemraj, 7 ULR 7 that: Where a Defendant though in default appears before the Court and indicates that he has a Defence and shows the Court what that Defence is, then if the Defence discloses some merits, and the Plaintiff can reasonably be compensated by costs for the delay, it is proper for the Court to take steps to try the case upon the merits, both sides being given a hearing. And if I may borrow the expression used before in these Courts, procedural rules are intended to serve as the handmaidens of justice, not to defeat it.”** Per **Wambuzi, P.,** (as he then was). Further, it was held in **Pithon Waweru Maina vs. Thuka Mugiria (1983) eKLR,** that **“7. A discretionary power should be exercised judicially and in a selective and discriminatory manner, not arbitrarily and idiosyncratically. (Smith v Middleton [1972] SC 30) 8. The Respondent could have been compensated by costs for the delay occasioned by his Advocate’s dilatoriness and the Appellant should not have been denied a hearing because of his Advocate’s mistake even if it amounted to negligence, in the circumstances of this case…The Court has a very wide discretion under the order and rule and there are limits and restrictions on the discretion of the Judge except that if the Judgment is varied it must be done on terms that are just: Patel v EA Cargo Handling Services Ltd [1974] EA 75, 76 BC. This discretion is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist a person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice: Shah v Mbogo [1969] EA 116,123 BC Harris J.”** Per **Potter and Kneller, JJA,** (as they then were) and **Chesoni, Ag. JA,** (as he then was). 26. **Second,** although discretion is unfettered so as to facilitate justice. See **Patel vs. E.A. Cargo Handling Services Ltd (1974) EA 75,** where **Duffus, V.P.** (as he then was) reasoned that **“The main concern of the Court is to do justice to the parties and the Court will not impose conditions on itself to fetter the wide discretion given to it by the rules.”** See also the Court of Appeal decisions in **Baraka Apparel EPZ (K) Ltd** **vs.** **Rose Mbula Ojwang** **T/A Faida** **2002 Caterers (2007) eKLR; Esther Wamaitha Njihia & 2 others vs. Safaricom Ltd (2014) eKLR; Branco Arabe Espanol vs. Bank of Uganda (1999) 2 EA 22;** and **Joseph Njuguna Thairu vs. City Council of Nairobi (2015) eKLR.** Speaking of discretion, **Lord Halsbury L.C.,** in the case of **Sharp vs. Wakefield (1891) 64 L.T Rep. 180 Ap. Ca.173** held that **“When it is said that something is to be done within the discretion of the authorities, that thing is to be done according to the rules of reason and justice, not according to private opinion, according to law and not humour. It is not to be arbitrary, vague and fanciful but legal and regular. It must be exercised within the limit to which an honest man, competent to the discharge of his office, ought to confine himself.”** In addition, in **Kenya Commercial Bank Ltd vs. Nyantange & Another (1990) KLR 443, Bosire J**. (as he then was) held that **“1. Order IXA rule 10 of the Civil Procedure Rules donates a discretionary power to the Court to set aside or vary an ex-parte Judgment entered in default of appearance or Defence and any consequential Decree or order upon such terms as are just. 2. The discretion is a free one and is intended to be exercised to avoid injustice or hardship but not to assist a person guilty of deliberate conduct intended to obstruct or delay the course of justice.”** Also, in **Richard Ncharpi Leiyangu vs. Independent Electoral Boundaries Commission & 2 Others (2013) eKLR** and **CMC Holdings Ltd vs. James Mumo Nzioka (2014) eKLR,** the Court of Appeal holds a view that a party should not punished, and discretion should be applied to ensure that a litigant does not suffer injustice or hardship as a result of an excusable mistake, inadvertence, accident or error. See also the Court of Appeal decision in **Baraka Apparel EPZ (K) Ltd** **vs.** **Rose Mbula Ojwang** **T/A Faida** **2002 Caterers (2007) eKLR.** 27. **Third,** when confronted with such Applications, it should always be borne in mind that discretionary power should always be flexed leaning in the direction of avoiding injustice which would otherwise result if the Application is either allowed or disallowed or hardship resulting from accident, inadvertence or excusable mistake or error but is not designed to assist a person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the cause of justice**.** See the *locus classicus* in setting aside an interlocutory Judgment and granting the Defendant leave to Defence namely the High Court decision in **Shah vs. Mbogo & another [1967] 1 EA 116** and its Court of Appeal rendition in **Mbogo and another vs. Shah (1968) 1 EA 93.** In the Court of Appeal timeless, *cause celebre* and *now locus classicus* precedent in matters exercise of discretion in **Mbogo and another vs. Shah (1968) 1 EA 93,** which was heard and determined by **Sir Charles Newbold P, Sir Clement de Lestang V-P and Law JA,** (as they then were) **Sir Clement De Lestang V-P, (**as he then was) rendered himself as follows: **“…while the Court would exercise its discretion to avoid injustice or hardship resulting from inadvertence or excusable mistake or error it would not assist a person who has deliberately sought to obstruct or delay the course of justice which, in his view, the company had done in the present case….Obviously this latter factor greatly influenced the learned Judge and led him to conclude, when taken together with the conduct of the company as a whole, that it was trying, as he put it, to obstruct or delay the course of justice.”** 28. My exposition of the law on setting aside *ex parte* or interlocutory Judgments is that **first,** I have no doubt in my mind that this Court is reposed with discretionary power to set aside the impugned *ex parte* Judgment plus the consequential Decree and/or Order. **Second,** in my mind, I entertain no doubt that although this Court is reposed with the unfettered discretionary power which should be deployed in the direction of avoiding injustice or hardship resulting from an accident, inadvertence or excusable mistake or error but not in the direction of aiding a litigant who deliberately sought to obstruct or delay the course of justice. The fundamental precept laid in the Constitution, under Article 50(1) read with Article 159(2)(d) thereof, that Courts are enjoined to serve substantive justice to all the parties. However, it should be borne in mind, that the said precepts and the said oxygen principle apply to all litigants both as a shield and sword. **Third,** whereas hearing of a suit on merit is the norm, hearing the suit *ex parte* is the exception. Administration of justice requires that the substance of all disputes be heard and decided on merit and this reverence, inadvertence, accidents, errors, mistakes, and lapses are excusable and cannot be permitted to oust this avowed principle. In this light, to deny a litigant a hearing should be the last resort of any Court driven by necessity. In this regard, if the *ex parte* or interlocutory Judgment was entered irregularly, then the Applicant is entitled to an order of setting aside the said Judgment *ex debito justititiae*, in which event the Court is stripped of discretion to consider otherwise. However, in the event the*ex parte* or interlocutory Judgment was entered regularly, the Court reserves the discretion to consider whether or not to set it aside if for example the non-attendance was occasioned by inadvertence or accident or error or mistake or lapse which is excusable. **Fourth,** a Court of law should elevate substantive justice over undue technicalities. **Fifth,** even where an Application is brought under provisions which may not support the Application and where there are no express provisions applicable to the situation at hand, the ends of justice demands that a Court makes such orders in exercise of its inherent powers to meet the ends of justice. **Sixth,** the main concern of this discretionary power is to do justice which includes but not limited to considering the magnitude of delay occasioned and its possible effect in relation to witnesses and whether the justice to the case requires that the case be re-opened and heard on merits. In this sense, while the Court should exercise it discretion to avoid injustice or hardship resulting from inadvertence or excusable mistake or error, the discretion should not be deployed if it would amount to assisting a person who has deliberately sought to obstruct or delay the course of justice. **Seventh,** if the only prejudice is that which can be compensated by costs, that should be the justice of the case. **Eighth,** the reason for failure to attend should be considered too. If found to be excusable mistake, error, inadvertence, or lapse, it should so be excused. **Ninth,** but where an Applicant was accorded an ample opportunity to defend himself but failed to do so deliberately, the justice of the case requires that the case not to be re-opened. **Tenth,** the foregoing sixth, seventh, eighth and ninth factors notwithstanding, there is an overriding stand-alone and broad-based predominant factorthat if on the whole, it is in the interest of justice to set aside the *ex parte* decision or *ex parte* proceedings using guiding rays including but not limited to the nature of the action; and whether the Applicant’s Draft Defence or Defence raises *bona fide* triable issues, then the Court can still grant the order to set aside the *ex parte* decision or *ex parte* proceedings. 29. Do circumstances in this case entitle the Applicant to an order setting aside the *Ex Parte* Judgment dated 10th October 2017? 30. **Step 1, in considering this question, the entry point is to consider whether the impugned *Ex Parte* Judgment is regular or irregular.** 31. **Step 2,** if this Court finds it irregular, then the Applicant is entitled to an order of this Court setting it aside *ex debito justitiae.* But if it finds it regular, it will proceed to step 3. 32. **Step 3,** if this Court finds the impugned *Ex Parte* Judgment regular, then it will be subjected to the determinative factors in ***the Kanyiita*** case discussed above, to determine whether the Applicant deserves an exercise of discretionary power reposed in this Court in his favour. 33. The Applicant averred and deposed in his Supporting and Further affidavits, that he was not served with the hearing notice in relation to the hearing which was slotted on 12th July 2017. Therefore, in order to effectually answer the question whether the impugned *Ex Parte* Judgment is regular or irregular, I will of course seek to establish whether the Applicant was on notice of the hearing which was slotted on 12th July 2017, which then resulted in the impugned *Ex Parte* Judgment. In this regard, the burden rests on the party which affirms, the Respondent in this case. 34. The Respondent exhibited a return of service, KR-2, sworn by a process server named Silas K. Kandie, to the effect that on 31st May 2017, he served the Applicant personally with the Hearing Notice at his home located in Kiplombe and that although the Applicant acknowledged receipt thereof, he declined to sign on the duplicate copy. 35. When confronted with an Affidavit of Service, in favour of the party asserting service, there is rebuttable presumption of service as deposed in the Affidavit. In this connection, the burden to demonstrate that there was no service at all shifts to the party asserting as much. Locally, there are tools provided to the Applicant to effectuate this through by making an Application under Order 19 Rule 2 of the CPR, to cross-examine the deponent. See Court of Appeal rendition in [**Shadrack Arap Baiywo vs. Bodi Bach [1987] KECA 69 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/1987/69/eng%401987-11-24)**;** and **MB Automobiles vs. Kampala Bus Service [1966] 1 EA 480.** 36. It follows that the mere assertion by the Applicant that the depositions in the Affidavit of Service sworn by Silas K. Kandie dated 11th July 2017, that he was duly served with a hearing Notice, are false and untrue, **lacks a proper foundation and thus remained a mere assertion.** And so is the assertion that the said Silas K. Kandie having failed to attach his Practicing Certificate to the said Affidavit of Service failed to prove that he is a licenced Court Process Server. Affidavit evidence is not displaced by mere assertions, but by causing the summoning of the deponent for cross-examination, in which event the party challenging the depositions exposes the untruths and falsities hence establishing a firm foundation upon which a Court of law can enter findings and draw conclusions that the depositions are false and untrue. In this regard, the Applicant failed to discharge his burden of challenging affidavit evidence in line with Order 19 Rule 2 of the CPR which provides the proper/legal procedure of challenging affidavit evidence. The Applicant failed to lodge an Application under Order 19 Rule 2 that the said deponent be compelled to attend Court for cross-examination. Beyond the mere assertions that he was not served, the Applicant failed to take a substantive step including but not limited to demanding to cross-examine the process server to fortify his assertions. Since the mere assertions cannot pass the standard of proof - on a balance of probabilities - the Affidavit evidence on service thus stands insufficiently challenged. This Court thus concludes that the Applicant was on notice of the hearing, having been duly served with the said hearing notice. 37. The foregoing finding yields the inevitable conclusion that the *Ex Parte* Judgment dated 10th October 2017, is regular. It follows that the Applicant is not entitled to the Order of setting aside the said Judgment, *ex debito justitiae.* 38. This finding propels the analysis to step 3, where this Court will subject the *Ex Parte* Judgment to the determinative factors which were laid down in ***the Kanyiita case*** discussed above, to determine whether the Applicant deserves the exercise of discretionary power in his favour. In this regard, this Court will seek answers to the questions: 1. whether there is a sufficient cause which prevented the Applicant from attending the hearing; 2. the length of time that has elapsed since the *Ex Parte* Judgment was entered and whether a plausible explanation has been offered in respect to the period of delay; 3. the balance of prejudice and in particular, whether the Respondent will be prejudiced by the setting aside the *Ex Parte* Judgment and if yes, if the prejudice can be compensated by award of costs; and 4. whether on the whole it is in the interest of justice to set aside the *Ex Parte* Judgment, using guiding rays including but not limited to the nature of the action; whether the Applicant’s Draft Defence or Defence raises triable issues; whether the Applicant was accorded an opportunity but squandered; whether the Applicant is guilty of inordinate delay, *et alia.* 1. Regarding the first question whether there is a sufficient cause which prevented the Applicant from attending the hearing, the Applicant contradicted his principal position that he was not served by advancing that he thought the matter had been withdrawn by the Respondent following a family meeting convened to resolve the dispute. It was not immediately clear why the Applicant elected to venture into guesswork or conjecture for a whopping 9 years in the context where he was aware of the suit and in circumstances where the Court records were available to correct his conjecture. This Court experienced difficulties to believe this allegation since the record shows that on 19th February 2014, the Plaintiff and Defendant were present in Court and on the said date, a Report of unsuccessful negotiation was tabled. On the same date and in compliance with the directions of the Court, the Defendant was supplied with the Plaintiff’s documents; and the status of the suit property was registered and subsequent thereto, the Court directed maintenance of *status quo.* On the same date and in the presence of the Plaintiff and Defendant, a mention was fixed on 28th July 2014 for Case Management Conference. I am unable to find any sufficient cause which prevented the Applicant from attending the hearing. In circumstances where an Applicant was accorded an ample opportunity to defend himself but failed to do so for no sufficient cause until he was threatened with execution, the Defendant cannot later be allowed to inflict undue hardship on the claimant who has been diligently pursuing his case. The doctrine of *audi alteram partem,* now firmly ingrained in Article 50(1) of the Constitution obligates the Court to grant a party an opportunity to be heard. The said doctrine and by extension, the Constitution do not however require the Court to bend backwards to accommodate a Defendant who after being granted an opportunity, deliberately failed to do so, as was the case here. Where a party was granted such an opportunity but squandered, it would be unfair for the same party to invoke this doctrine. See **Ndong’iora v Munyi (Land Case Appeal E031 of 2025) [2026] KEELC 2867 (KLR) (14 May 2026) (Judgment)**. In such cases, the Claimant has a right to enjoy the fruits of his Judgment. See **Kennedy Makasembo vs. Kenya Union of Post Primary Education Teachers [2017] eKLR,** per **M. Onyango, J.** Courts have consistently frowned on parties who lack diligence in pursuing their matters with the result of inflicting undue hardship on their opponents. See for instance the Court of Appeal decisions in [**Habo Agencies Limited vs. Wilfred Odhiambo Musingo [2016] KECA 477 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2016/477/eng%402016-06-24)**;** and **Muriithi vs. Njogu & 6 Others (Civil Appeal E069 of 2021) [2025] KECA 1426 (KLR),**where in both cases, it upheld the decision declining to set aside the *ex parte* decisions on account of lacking in diligence on the part of the Applicant. 2. Turning to the second factor in relation to the length of time which has elapsed since the *Ex Parte* Judgment was entered and the time the Application was filed, and whether a plausible explanation has been offered in respect to the period of delay, it is now incontestable that the said Judgment was entered on 10th October 2017 and this Court was approached on 9th April 2026, approximately 9 years later. Beyond the explanation that he thought that the suit had been withdrawn by the Respondent following a family meeting convened to resolve the dispute, which this Court found unsupported since the since the record shows that on 19th February 2014, the Plaintiff and Defendant were present in Court and on the said date, a Report of unsuccessful negotiation was tabled, no other plausible explanation was presented before this Court for consideration. Apart from offending Article 159(2)(b) of the Constitution that justice shall not be delayed and apart from further offending the obligation reposed on parties and their advocates under section 1B of the CPA to assist the Court to further the said oxygen principle, it has been held consistently that **delay has a conceivable effect in relation to availability of witnesses or resulting in faded memories of witnesses which then contribute to decision on whether the justice of the case requires that the case be re-opened so as to try it on its merits.** See **Mbogo and another vs. Shah [1968] 1 EA 93,** where **Lestang V-P** (as he then was) held agreed with the High Court that service having been effected **“… while the Court would exercise its discretion to avoid injustice or hardship resulting from inadvertence or excusable mistake or error it would not assist a person who has deliberately sought to obstruct or delay the course of justice which, in his view, the company had done in the present case…”** 3. Turning to the third factor namely the balance of prejudice, it has been consistently held by the Court of Appeal that even where the Court finds that service was valid, the *Ex Parte* Judgment will be set aside if the defence raises even a single *bona fide* triable issue. See **Tree Shade Motors Ltd vs. DT Dobie & Another [1995-1998] 1 EA 324**, where the Court of Appeal (**Kwach, Tunoi & Bosire, JJA,** as they then were) held that **“Even if service of summons in valid, the judgment will be set aside if defence raises triable issues. Where a draft defence was tendered together with an Application to set aside a default judgment, the Court hearing the Application was obliged to consider if it raised a reasonable defence to the Plaintiff’s claim. Where the Defendant showed a reasonable defence on the merits, the Court could set the ex-parte judgment aside.”** For the same judicial position, see also **Patel vs. EA Cargo Handling Services Ltd [1974] EA 75; Philip Chemwolo & Another vs. Augustine Kebende [1982-88] KAR 1036;** [**Jomo Kenyatta University of Agriculture & Technology vs. Mussa Ezekiel Oebah [2014] KECA 143 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2014/143/eng%402014-12-18)**; Sebei District Administration vs. Gasyali and others [1968] EA 300;** [**Job Kilach vs. Nation Media Group Ltd, Salaba Agencies Ltd & Michael Rono [2015] KECA 846 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2015/846/eng%402015-03-20)**; Gupta vs. Continental Builders Ltd [1976-80] 1 KLR 809,** *et alia.* What this judicial principle implies, is that on the balance of prejudice, if the defence raises *bona fide* triable issues but the Court declines the Application to set aside, then the Applicant will suffer irreparable prejudice. This Application presents a conundrum. While it's obvious the Applicant offered no sufficient cause compounded by inordinate delay, on the other hand, this is a unique land matter where the Applicant has demonstrated triable issues. In this case, the defence has pleaded a customary trust, which needless to accentuate, is a weighty triable issue. It follows that if this Court declines the Application to set aside the impugned *Ex Parte* Judgment, then the Applicant will suffer irreparable prejudice. On the other hand, having subjected the Respondent’s situation to the scales of balance of prejudice, although it goes without saying that he will equally suffer prejudice for re-opening a matter 9 years later, this Court is satisfied that the nature of prejudice the Respondent will suffer is reparable by costs. 4. In Gupta v Continental Builders Ltd [1976-80] 1 KLR 809, the Court, dealing with an appeal from an 5. In Gupta v Continental Builders Ltd [1976-80] 1 KLR 809, the Court, dealing with an appeal fr 6. Finally, turning to the fourth overriding and broad-based predominant factor, whether on the whole it is in the interest of justice to set aside the *Ex Parte* Judgment, one of the key fulcrums upon which this factor can turn is **first,** the **nature of the action** and **second, whether the defence raises even a single *bona fide* triable issue** as discussed above, both of which the Court is thus under duty to consider. See **Sebei District Administration vs. Gasyali and others (1968) 1 E.A. 300.** What are some of the specific subject matters which can tilt exercise of the discretionary power in cases where the *ex parte* Judgment is found regular? **The notable actions which attract invocation of this factor are those involving weighty matters including but not limited to land and fraud.** It was [**In Re Solomon M’irura Mathiu [2012] KEHC 2201 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2012/2201/eng%402012-09-27)**,** which I find highly persuasive,where **J.A. Makau, J.** rendered himself as follows: **“I have taken into consideration that the subject matter of the suit is land which is very sensitive and in most cases the only source of livelihood for most of the people especially in rural areas. The rural lands is what most of the people call home and go to after all hope is lost and have nowhere else to go. Our Constitution is very clear that, in so far as possible, that justice be administered without undue regard to procedural technicalities (See Article 159(2) (d) of the Constitution of Kenya,2010. The Constitution is against depriving any party his/her property or any interest in or right over any property arbitrarily. Everyone has a right to have any dispute resolved by Application of law in a fair trial. I have noted the Applicant’s intended suit is predicated on allegation of fraud. The delay since discovery of fraud in 2000 is not inordinate and the reason for delay have been explained. I do not find that it would be in the interest of justice to shut the Applicant out of the corridors of justice especially in a claim for recovery of land. It is imperative that the Applicant be allowed to ventilate his case by establishing or otherwise the allegation of fraud against the intended Respondent by allowing the matter to be heard and determined on merits.”** Similarly, in **Philip Kimutai Langat P/A Kiplangat Maina vs. Job Kibet Maina** [**[2007] KEHC 449 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2007/449/eng%402007-01-19)**,** which I also find highly persuasive, the same precautionary principle was invoked and **L. Kimaru, J.** reasoned as follows: **“However, I have taken into consideration that the subject matter of the suit is land. The Court of Appeal has directed Courts to hear and determine matters dealing with disputes involving land, in so far as possible, on its merits and not on technicalities. In the present case, the fact that the Plaintiff did not plead the time which he discovered the fraud is not fatal to his case. He can plead such a time after amending his pleadings. As earlier stated in this ruling, the Plaintiff’s suit is predicated on allegations of fraud. It is imperative that the Plaintiff be allowed to ventilate his case by establishing or otherwise the allegations of fraud against the Defendant. In the circumstances of this case therefore, I hold that the preliminary objection lacks merit and is hereby dismissed with costs. Although the Plaintiff’s suit is for the recovery of land, the substance of the suit is the allegations of fraud raised by the Plaintiff. Those allegations should be heard and determined on merits.”** This Court has addressed its mind to the principal guiding rays including but not limited to: **(i) first,** the nature of this action being a land action which is immoveable, inelastic and by all standards emotive in accord with the principles in **Sebei District Administration vs. Gasyali and others [1968] EA 300;** [**In Re Solomon M’irura Mathiu [2012] KEHC 2201 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2012/2201/eng%402012-09-27)**;** and **Philip Kimutai Langat P/A Kiplangat Maina vs. Job Kibet Maina** [**[2007] KEHC 449 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2007/449/eng%402007-01-19); **(ii) second,** the foregoing finding of this Court that the Applicant’s Defence raises *bona fide* triable issues; **(iii) third,** beyond merely being a land action, it is an extra-ordinary land dispute which involves land alleged to have been handed down generations coupled with the fact that the Plaintiff and Defendant are biological brothers and if this dispute is not resolved effectively on merit, being land alleged to be the rural homes of the contestants and coupled further by the fact that rural homes are deemed by most Kenyans as the ultimate and last resort home, it will not only leave a chronic wound which will never heal and hover over the heads of the Plaintiff and Defendant and even follow their generations; **(iv) fourth,** taking into account the personal security considerations which impelled the Applicant to revive this old matter from the archives namely the alleged incident where the Plaintiff’s son allegedly threatened to harm the Applicant if he failed to vacate the suit property; and **(v) fifth,** notwithstanding the finding of this Court that the Applicant was accorded a golden opportunity - in accordance with the doctrine of *audi alteram partem* now firmly ingrained in Article 50(1) of the Constitution - but squandered it; and **(v) sixth,** despite the further finding of this Court that the Applicant is guilty of inordinate delay, this Court reaches a conclusion that on the whole, tilted heavily by the overriding and broad-based predominant factors namely the **nature of this action** and fact that **the defence raises *bona fide* triable issues**, this Court is of the persuasion that it is and will be in the interest of justice to set aside the impugned *Ex Parte* Judgment and hear the Defendant before finally rendering itself. **(ii) Which party should shoulder the costs of this Application?** 1. The law on costs as I discern it is that **first,** an award of costs and interest is discretionary. **Second,** save where costs and interest are compromised, the Court retains the discretion thereon. See **Morgan Air Cargo Ltd vs. Everest Enterprises Ltd (2014) eKLR, Gikonyo, J**. **Third,** even where a suit has been compromised without including costs and interest in the compromise, the discretion of the Court aforesaid remains unscathed. See **Rose Kaume & Another vs. Stephen Gitonga Mbaabu & Another [2016] eKLR, per C. Kariuki, J.** How then is this discretion exercised? Discretion is not the same thing as *carte blanche.* Beacons demarcating how discretion is exercised are as follows. 2. In this Application, although the parties are biological brothers, this Court having found that the Applicant failed to present a sufficient cause which prevented the him from attending the hearing; and having further found that in this context, he squandered a golden opportunity to defend the suit at the time it was fixed for hearing and consequently inflicting undue hardship on the Plaintiff who diligently pursued his case; and having further found that the Applicant compounded this bad situation by approaching this Court after inordinate delay of approximately 9 years, this Court has found no good cause to depart from the general principle that costs follow the cause and the cause in this case is the Applicant herein. Proceeding on the same footing, this Court has however found a good cause to depart from the established practice in such cases – involving close family members - each party should bear his/her own costs. It is for the foregoing reasons that this Court concludes that the Applicant shall thus foot the costs thrown away by the Respondent. **PART VI: DISPOSITION** 1. Consequently, this Court allows this Application only on basis of the interest of justice. However, the Defendant/Applicant having failed to offer sufficient cause to explain why he failed to attend the hearing of 12th July 2020 and having further approached this Court after inordinate delay and the foregoing notwithstanding, this Court grants the Application conditionally on the following terms: 1. **The *Ex Parte* Judgment dated 10th October 2017 plus any consequential Order(s) and/or Decree, is hereby set aside.** 2. **This suit shall be heard *de novo*.** 3. **The Defendant/Applicant is directed to pay the Plaintiff/Respondent costs thrown away assessed at Kshs. 50,000, which shall be paid before the date set for hearing *de novo* which is this case is within 59 days - that is to say not later than the 29th day of September 2026 - failing which Order (i) above (setting aside the impugned *Ex Parte* Judgment) shall stand vacated automatically with the attendant result that the *status quo ante* (prevailing before the Application) shall automatically revert without further recourse or Motion to this Court by any of the parties, and ultimately, this file shall be marked as closed upon lapse of the said cut-off date without compliance by the Defendant/Applicant. For avoidance of doubt, the Defendant/Applicant is hereby notified that this grace period - of 59 days - is inextensible.** 2. **Finally, in the best interest of justice, this matter will be heard *de novo* on priority-basis and a hearing date shall be fixed not later than 60 days from the date of this Ruling (that is to say not later than the 30th day of September 2026).** 3. **Hearing on 30th September 2026, at 9.00 am.** 4. **Parties are directed to file their respective physical Trial Bundles not later than 11th September 2026.** **Virtually Delivered, Signed and Dated in ELC Eldoret this 30th day of July 2026** **…………….…………** **C.N. Ondieki** **Judge** **In the presence of:** **Advocate for the Plaintiff/Respondent: Mr. Tarigo** **Advocate for the Defendant/Applicant: Mr. Maiyo** **Court Assistants: Ms. Chepkoech & Ms. Juma**