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ELCDismissedNot stated in judgment· [2025] KEELC 3903 (KLR)

Ethics & Anti-Corruption Commission v Kivisi & 2 others (Environment and Land Appeal 596 of 2014) [2025] KEELC 3903 (KLR)

Environment and Land Court (or High Court) at Kakamega - court not named in judgment
7 April 2025
ANA. Nyukuri
1,334 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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A Kakamega court refused to reopen a case the defendants missed, ruling that poor diary management by their lawyer was not a good enough excuse.

What this practically means

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Executive summary

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This is a first-instance ruling on a Notice of Motion dated 19th December 2024 by the 1st and 3rd defendants seeking review, variation and setting aside of orders made on 2nd October 2024 closing both the plaintiffs' and defence cases, and the re-opening of both cases with recall of the plaintiffs' witness. The applicants' case was that their counsel was unaware of the hearing date of 2nd October 2024 because an advocate holding his brief and a pupil in his office failed to diarize it. The plaintiffs opposed, deposing that the applicants had repeatedly sought adjournments, that the hearing notice was served on their office on 28th May 2024, that substituted witness documents were served in September 2024, and that the date was on the court's CTS platform. The plaintiffs presented three witnesses and closed their case in the applicants' absence. Framing the sole issue as whether there was good cause to reopen the cases, the court applied Order 51 Rule 15 of the Civil Procedure Rules and the Shah v Mbogo principle that the discretion to set aside ex parte proceedings is meant to relieve against accident, inadvertence or excusable mistake, not to assist those obstructing the course of justice. The court found counsel had multiple avenues of notice and gave no plausible explanation for non-attendance, noting the matter had been pending since 2009. The application was dismissed with costs to the plaintiff.

Key legal issues

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01

Whether good cause exists to set aside ex parte proceedings and reopen the case

Holding

Application dismissed; no plausible reason for non-attendance demonstrated

Reasoning

Counsel's office was served with a hearing notice on 28th May 2024 for hearing on 2nd October 2024; the date was on the CTS platform; substituted witness statements were served in September 2024. Counsel gave no evidence of non-diarization and did not explain failing to check the CTS for over four months. The suit, pending since 2009, would be further delayed. Discretion under Order 51 Rule 15 must be exercised judiciously, and the ends of justice did not demand setting aside.

p. 3

Legal principles established

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  • The power to set aside ex parte orders is discretionary and must be exercised judiciously; an applicant must demonstrate reasons for failure to attend court and that the ends of justice demand setting aside

Court orders

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  1. 1.Notice of Motion dated 19th December 2024 dismissed
  2. 2.Costs to the plaintiff
Jurisdiction invoked
Order 51 Rule 15 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ethics & Anti-Corruption Commission v Kivisi & 2 others (Environment and Land Appeal 596 of 2014) [2025] KEELC 3903 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3903/eng@2025-04-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.