https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3638

Eboso v Azelwa (Enviromental and Land Originating Summons 11 of 2022) [2026] KEELC 3638 (KLR) (3 June 2026) (Ruling) Neutral citation: [2026] KEELC 3638 (KLR) Republic of Kenya In the Environment and Land Court at Kakamega Enviromental and Land Originating Summons 11 of 2022 A Nyukuri, J June 3, 2026 Between Salome Mideva Eboso Applicant and Aggrey Taikosh Azelwa Respondent Ruling Introduction 1.Before court is a notice of motion dated 9th April 2025 filed by the respondent seeking the following orders;a.Spentb.That this honourable court be pleased to arrest the judgment to be delivered as directed on 3rd April 2025c.That the costs of this application be in the cause. 2.The application is predicated on the supporting affidavit sworn by the respondent on 9th April 2025. His case is that this matter had previously been filed in Eldoret and upon being transferred to Kakamega, his counsel was not duly notified. That although the respondent has a triable defence to the applicant’s claim, the suit proceeded ex parte. That on two occasions, the counsel for the applicant had difficulties in logging into court and it was only on 3rd April 2025, when he was served with submissions. Further that the application herein was filed promptly. 3.The application was opposed. Sammy Amwayi Keiza the applicant’s guardian ad litem, filed a replying affidavit dated 11th July 2025, opposing the application. He stated that the application was an abuse of the court process. That the respondent was served with mention and hearing notices but failed to attend court thus obstructing and delaying justice, hence undeserving of the court’s discretion. That there is no evidence the respondents counsel tried to attend court. That equity aids the diligent and not indolent. That the respondent has not shown the steps he took to defend the suit. That the suit has been pending for six years. That if there was professional negligence, the respondent should seek relief elsewhere. Analysis and determination 4.The court has carefully considered the instant application and the response thereto. The single issue that arise for determination is whether the applicant deserves orders sought. 5.The applicant sought to arrest judgment in this matter. This court has inherent jurisdiction to make orders for the ends of justice as provided for in sections 3 and 63 ( e ) of the Civil Procedure Act. 6.In the instant matter, the matter was heard whereof the applicant’s witnesses testified on 3rd February 2025. The respondent having been absent despite service, his case was closed on the same date. The matter was then fixed for mention to confirm filing of submissions, when the respondent filed the instant application. Therefore, this matter has not been fixed for judgment, to warrant a prayer for arresting a judgment. Thus, there is no impending judgment capable of being arrested. 7.The reasons given for the prayer sought are that the matter was filed in Eldoret and that upon transfer to Kakamega the respondent lost track because there was no proper communication between him and his advocate. Further that several efforts to have the respondent and his advocate join the court link were frustrated by network challenges. 8.I have gone through the proceedings. It is correct that this matter was filed in Eldoret. Thereafter, the file was transferred to Kakamega in 2022. On 17th May 2023, counsel for the applicant and the respondent appeared before court, took directions and a hearing date of 29th September 2023. On the said hearing date, there was no appearance by the respondent and his counsel. The case proceeded to hearing and the applicant presented his witnesses and closed his case. The matter was then fixed for defence hearing on 30th November 2023. On the said date, both advocates were present and recorded a consent with the effect of consolidating this matter with ELC Case Nos. 9/2023; 10/2022; 11/2022; 13/2022 and 15/2022 with directions that ELC Case No. 11 shall be the lead file. The hearing which proceeded in ELC Case No. 11/2022 was also set aside. In addition, on that date, a hearing date of 20th March 2024 was fixed. Still, come 20th March 2024, no appearance was made by the respondent and his counsel. 9.Subsequently, counsel for the respondent was served with a hearing notice for hearing on 16th October 2024 but never attended court. The matter was given a fresh date as the trial court was on transfer. Again, the respondent’s counsel was served for hearing for 3rd February 2025. On that date there was no appearance by the respondent and his counsel and the matter proceeded where the plaintiff’s witnesses testified and closed their cases. The defence case was also closed. Subsequently, the respondent filed the instant application. 10.As stated by the applicant, the respondent’s counsel has been served severally with the hearing and mention notices but did not attend court. The explanation that the transfer of the matter from Eldoret to Kakamega was without communication, is therefore not plausible as counsel for the respondent last attended court in Kakamega in 2023, and for two years there was no attendance on his part or the respondent. 11.The case herein belongs to the respondent. He has not told the court why, for two years he never took any steps in regard to his case. He has not sought to reopen his case, or to be allowed to defend the suit. This case has no judgment date, hence no impending judgment to warrant arrest of the same and no reasons have been given to warrant the court not to determine this matter. The respondent did not file any witness statement and therefore it is clear to me that he was not keen on testifying in this case. 12.For the reasons above, I am convinced that there is no merit in the application dated 9th April 2025, which I hereby dismiss with costs. 13.It is so ordered. DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 3RD DAY OF JUNE 2026A. NYUKURIJUDGEIn the presence of;Mr. Wainaina holding brief for Mr. Momanyi for the applicantMr. Omboto for the respondentCourt Assistant- Delphine