Riechi & 2 others v Tiema & 6 others (Environment & Land Case E003 of 2022) [2025] KEELC 1395 (KLR)
The bottom line
#The High Court of Kenya set aside a judgment entered after the plaintiffs missed a hearing they were never told about, but ordered them to pay Kshs.100,000 within 30 days.
What this practically means
#Executive summary
#Key legal issues
#Whether the application offended Order 9 Rules 9 and 10 of the Civil Procedure Rules on change of advocates post-judgment
The application did not offend the rules because a consent for change of advocates was duly filed by the former and current advocates
The 7th Defendant argued that the firm of Modi & Co Advocates came on record post-judgment without the required consent, citing authority. The court examined the record and found that a consent in accordance with Order 9 Rules 9 and 10 had been filed, regularising the position. Accordingly the firm was properly on record and could prosecute the application.
Whether the judgment delivered on 11th April 2024 should be set aside
Yes - the Plaintiffs gave plausible reasons for their non-attendance, having been neither notified by their advocate nor personally informed of the hearing date, and it would be a miscarriage of justice to condemn them unheard
The hearing date was fixed in the absence of the Plaintiffs' counsel, though service on counsel was evidenced. No evidence showed the advocate communicated the date to the Plaintiffs. Applying the principle that a litigant should not suffer for counsel's mistake, the court's wide discretionary power under Order 12 Rule 7 and Section 3A, and Article 50 fair-hearing guarantees, the court found the reasons for non-attendance plausible and set aside the judgment on terms (thrown away costs).
Legal principles established
#- The power to set aside a judgment under Order 12 Rule 7 is discretionary and must be exercised judiciously
- A litigant should not suffer for the mistake or oversight of counsel
- The court's discretion to set aside judgment is bounded only by the requirement that terms be just and that justice be done
- The audi alteram partem rule is a fundamental principle of justice and it is a miscarriage of justice to deny a party a hearing
Court orders
#- 1.The judgment delivered on 11th April 2024 is set aside
- 2.The Plaintiffs shall pay to the Respondents thrown away costs of Kshs.100,000/= within 30 days from the date of the ruling
- 3.In default of payment of the thrown away costs, the judgment shall lapse and the Respondents shall be at liberty to execute the judgment
- Jurisdiction invoked
- Order 12 Rule 7 of the Civil Procedure Rules; Sections 1A, 1B and 3A of the Civil Procedure Act; Article 50 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Riechi & 2 others v Tiema & 6 others (Environment & Land Case E003 of 2022) [2025] KEELC 1395 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1395/eng@2025-03-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.