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ELCAllowedNot stated in the judgment· [2025] KEELC 4214 (KLR)

Tande (Suing as the Legal Representative to the Estate of Manasseh Lemaiyan Tande (Deceased) who was Suing as the Legal Representative to the Estate of Geoffrey Kayaku Tande - Deceased) v Kamau & another (Environment & Land Case E005 of 2020) [2025] KEELC 4214 (KLR)

Environment and Land Court
29 May 2025
MMM.D. Mwangi
759 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court set aside ex parte proceedings caused by a lawyer's missed hearing date, giving the defendants a fresh full hearing on condition they pay costs.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kajiado (M.D. Mwangi, J) determines a notice of motion dated 16th April 2025 by the Defendants seeking to set aside the proceedings of 3rd April 2025 and to have the case heard de novo. The suit had proceeded ex parte on 3rd April 2025 after the court confirmed service on the Defendants; the Plaintiff testified and closed her case, and judgment was scheduled for 5th June 2025 (later 12th June 2025). The Defendants' advocate, Wincate Muthoni Mwangi, swore that she was duly served but inadvertently failed to diarize the hearing date, conceded her error and asked that it not be visited on her clients. The Plaintiff opposed through a fifty-six paragraph affidavit of Isaac O. Miencha. The court framed a sole issue: whether the application merited the exercise of its discretion. Relying on Bouchard International (Services) Limited v M'Mwereria, Philip Chemweno v Augustine Kubende and Bellinda Murai & 9 others v Amos Wainaina, the court held that its discretion to set aside ex parte proceedings is unfettered, that blunders should not deny a party a hearing on the merits, and that the application was made without inordinate delay. The court allowed the application, set aside the proceedings of 3rd April 2025, directed that the case start de novo, awarded the Plaintiff thrown away costs of Kshs. 30,000/- payable within 14 days, and vacated the judgment date of 12th June 2025.

Key legal issues

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Whether ex parte proceedings held in the absence of the Defendants should be set aside where the failure to attend was due to counsel's failure to diarize the hearing date

Holding

Yes. The court's discretion is unfettered; the application was made without inordinate delay and justice favoured setting aside the proceedings and starting the case de novo, subject to thrown away costs.

Reasoning

The court acknowledged human fallibility and the philosophy behind setting aside ex parte proceedings. Counsel conceded her error and the court held the mistake should not be visited on the clients. The application was lodged thirteen days after the hearing, which was not inordinate delay. Considering the circumstances, the nature of the dispute and the respective merits, the court exercised its discretion in favour of a hearing on the merits, conditioned on payment of thrown away costs.

p. 2

Legal principles established

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  • The court has an unfettered discretion to set aside ex parte orders or proceedings in the interest of justice.
  • A mistake by counsel should not of itself deny a party a hearing on the merits.

Court orders

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  1. 1.Proceedings of 3rd April 2025 set aside
  2. 2.Case to start de novo
  3. 3.Defendants to pay thrown away costs of Kshs. 30,000/- to the Plaintiff within 14 days
  4. 4.Judgment date of 12th June 2025 vacated
Jurisdiction invoked
Inherent discretion to set aside ex parte proceedings/orders under the court's procedural 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, "Tande (Suing as the Legal Representative to the Estate of Manasseh Lemaiyan Tande (Deceased) who was Suing as the Legal Representative to the Estate of Geoffrey Kayaku Tande - Deceased) v Kamau & another (Environment & Land Case E005 of 2020) [2025] KEELC 4214 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4214/eng@2025-05-29

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