Shajanand Holdings Ltd v Eshikhoni Auctioneers (Civil Appeal E058 of 2024) [2026] KEHC 10331 (KLR) (11 June 2026) (Ruling)

Shajanand Holdings Ltd v Eshikhoni Auctioneers (Civil Appeal E058 of 2024) [2026] KEHC 10331 (KLR) (11 June 2026) (Ruling) Neutral citation: [2026] KEHC 10331 (KLR) Republic of Kenya In the High Court at Bungoma Civil Appeal E058 of 2024 RK Ondieki, J June 11, 2026 Between Shajanand Holdings Limited Applicant and Eshikhoni Auctioneers Respondent (Being an Appeal against the Ruling by Hon. Tom Mark Olando (PM) in Chief Magistrate’s Court at Bungoma Case No. 198 of 2020, Delivered on 7th June, 2023) Ruling 1.It is now cast in stone and founded in many jurisprudential passages so often repeated and yet bear repetition. In The Supreme Court of India forcefully underlined the importance of the right to be heard as follows in Sangram Singh Vs Election Tribunal, Koteh, AIR 1955 SC 664, at 711 the court said that there must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. 2.In the trial court, a Notice of Motion dated 17th April, 2023 was filed in which the substantive prayer was stay of execution of the certificate of costs dated 06.04.2023 pending hearing and determination of the application inter-parties 3.It is argued that the court stayed the taxation of the bill of costs till 11th April, 2023 when the Appellant were served with notice threatening to execute against the appellant within ten days. Upon hearing both parties, the ruling was delivered dismissing the said application which order is the subject of this appeal. 4.Dissatisfied with the Ruling, the Appellant have filed this Appeal on the following grounds;a.The Learned Trial Magistrate erred in law and fact in dismissing the application dated 17th April 2020 seeking to set aside ex-parte proceedings and rulings of Hon Olando PM.b.The Learned Trial Magistrate erred in law and fact in dismissing the application dated 17th April 2020 seeking to set aside ex-parte proceedings and rulings of Hon. Olando PM when there was no evidence of notice to appear for directions on taxation.c.The Learned Trial Magistrate grossly misdirected himself in treating the evidence superficiary and consequently coming to a wrong decision.d.The Learned Trial Magistrate misdirected himself in ignoring the principles applicable and relevant submissions presented and filed by the Appellant. 5.The Appellant and the Respondent have filed written submissions which have gauged and if there is anything I left or did not specifically refer to, it is not that they are insignificant and or irrelevant to this matter. Far from it. Analysis and Determination: 6.In view of the grounds of appeal, I collapse them into one issue for determination and that is; whether or not, the Appellant was accorded a chance to be heard before taxation. 7.Ouko, JA (as he then was) observed in Nicholas Salat v IEBC & 6 Others, CA (Application) No 228 of 2013) that the general trend, following the introduction of the overriding objective in various statutes as well as Article 159 of the Constitution, is that the courts strive to sustain rather than strike out pleadings on purely technical grounds. The learned judge explained ddeviations from and lapses in form and procedures which do not go to the jurisdiction of the Court, or to the root of the dispute or which do not at all occasion prejudice or miscarriage of justice to the opposite party, ought not be elevated to the level of a criminal offence attracting such heavy punishment of the offending party, who may in many cases be innocent since the rules of procedure are complex and technical. Instead, in such instances the Court should rise to its highest calling to do justice by sparing the parties the draconian approach of striking out pleadings. It is globally established that where a procedural infraction causes no injustice by way of injurious prejudice to a person, such infraction should not have an invalidating effect. Justice must not be sacrificed on the altar of strict adherence to provisions of procedural law which at times create hardship and unfairness. 8.In Ali Bin Khamis Vs Salim Bin Khamis Kirobe & Others, [1956] 1 EA 195 expressed the view that where an order is made without service upon a person who is affected by it, procedural cockups will not deter the court, ex debito justitiae, from setting aside such an order. Briggs, JA., with whom Worley P. and Sinclair, VP. concurred, stated that on the appeal before us Mr. Khanna relied on Craig Vs Kanseen [1943] 1 All ER 108 as showing that where an order is improperly made without serving a person known to be affected by it and having a statutory right to be served before its can be made, the order is a nullity in the sense that it must be set aside ex debito justitiae, and that in cases of nullity procedure is unimportant, since the Court has inherent jurisdiction to set aside its own order. I accept these principles, as laid down by Lord Greene, MR. 9.Lord Cairns in Roger Vs Comptoir D' Escompts De Paris stated that one of the first and highest duties of all, Courts is to take care that the act of the court does no injury to any of the suitors and when the expression 'Act of the court' is used it does not mean merely the act of the primary court, or of any intermediate court of appeal, but the act of the court as a whole from the lowest court which entertains jurisdiction over the matters up to the highest court which finally disposes of the case. 10.Having stated the law, it is clear that no notice was served on the appellant to attend the taxation of the bill of cost. This is so fundamental a process, that cannot be ignored. In any event, even where a party is to blame, the current method of approach is to always give a party a chance, unless the other party will suffer prejudice which cannot be compensated by way of damages. However, in our case, what is core is a lamentation on violation of a right to be heard under Article 50(2) of the Constitution. 11.Having made the finding that under paragraph 8, I allow the Appeal. For avoidance of doubt, issue the following orders;a.The ruling of the Learned Magistrate on the application dated 17th April, 2023 in Civil Suit No. 198/2020 delivered on 7th March 2023 is set aside.b.That the ex parte proceedings and ruling and certificate of costs dated 6th April 2023 is set aside for being irregular.c.That costs of appeal to be awarded to the Appellant on the principle, that cost follow the event. DELIVERED VIRTUALLY THIS 11TH JUNE, 2026 IN THE PRESENCE OF PARTIES AND BRIAN COURT ASSISTANT.HON. R.K. ONDIEKI,JUDGE.Citations:Sangram Singh Vs Election Tribunal, Koteh, AIR 1955 SC 664, at 711Nicholas Salat v IEBC & 6 Others, CA (Application) No 228 of 2013)Ali Bin Khamis Vs Salim Bin Khamis Kirobe & Others, [1956] 1 EA 195Craig Vs Kanseen [1943] 1 All ER 108Roger Vs Comptoir D' Escompts De Paris