Rick v Chebet & another (Environment & Land Case E232 of 2023) [2025] KEELC 16 (KLR)
The bottom line
#A Kenyan court dismissed a litigant's attempt to redo a hearing he missed, confirming that procedure rules apply to everyone, including parties acting without lawyers.
What this practically means
#Executive summary
#Key legal issues
#Competence of the application under Order 9 Rule 8 CPR
The application was premature, irregular and incompetent because it was filed while the Defendants were still represented by M/s Peter Kibet & Co Advocates and without a notice of intention to act in person
The erstwhile advocates remained on record until discharged on 21st November 2024, hence were the Defendants' recognized agents under Order 9 Rules 1 and 13. Order 9 Rule 8 requires a party intending to act in person to file and serve a notice to that effect, which was never done alongside the 13th November 2024 application. Non-compliance with procedure cannot be cured by Article 159(2)(d); rules of procedure bind all parties and touch on the right to fair hearing.
Nature of the 5th November 2024 proceedings and functus officio
The proceedings were inter-partes, not ex-parte, as Defendants' counsel was present (even if he walked out); and the court became functus officio regarding the final orders made that day
Counsel Mr. Kandie appeared holding brief for Mr. Peter Kibet, sought an adjournment which was dismissed after a ruling, and walked out before PW1 was sworn. Presence of a recognized agent means proceedings were taken in the parties' presence. The adjournment orders were final; aggrieved parties should have appealed. Re-opening them would amount to the court sitting on appeal over its own decision, which is antithetical to the rule of law.
Sufficient cause for setting aside
The Applicant failed to prove sufficient cause; the affidavit gave no plausible reason for non-attendance, and the record showed a pattern of delaying tactics
The suit belongs to the parties, not their advocates, so the Applicant was obliged to attend court. The supporting affidavit offered no cogent explanation for absence on 5th November 2024. Sufficient cause must be bona fide, rational and leave no gaps. Discretion must be exercised judiciously and never to reward a scheme calculated to obstruct or delay justice, citing Shah v Mbogo and related authorities.
Legal principles established
#- A party who has sued or defended through an advocate must file and serve a notice to act in person before filing processes in person; failure renders such processes irregular and incompetent
- Proceedings taken in the presence of a party's advocate or recognized agent are inter-partes and not amenable to setting aside as ex-parte proceedings under Order 12
- Final orders, including a dismissed adjournment application, cannot be revisited or set aside by the same court; the remedy is appeal, and the court becomes functus officio
- Sufficient cause for exercise of equitable discretion must be rational, plausible, convincing and truthful, and discretion will not be exercised to assist a party obstructing the course of justice
Court orders
#- 1.The Application dated the November 13, 2024 be and is hereby dismissed
- 2.Costs of the Application be and are hereby awarded to the Plaintiff/Respondent
- 3.The matter shall be placed before the incoming Judge for further directions and proceedings including crafting of the pending Judgment where apposite
- 4.The matter to be mentioned before the incoming Judge within 14 days from delivery of the Ruling or such other time as the parties may agree
- Jurisdiction invoked
- Inherent jurisdiction under Sections 1A and 3A of the Civil Procedure Act and Order 18 Rule 10, Order 40 Rule 7, Order 51 Rules 1, 2 & 3 of the Civil Procedure Rules; Article 47(1), Article 50(1) & (2)(g) of the Constitution 2010 (as invoked by the Applicant)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rick v Chebet & another (Environment & Land Case E232 of 2023) [2025] KEELC 16 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/16/eng@2025-01-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.