Republic v Attorney General & 6 others; Wilson (Ex parte Applicant) (Suing on behalf of the residents of Chepchoina Phase 111 in Trans Nzoia County) (Environment and Land Judicial Review Case E005 of 2024) [2025] KEELC 6068 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicants deserve a stay of execution, setting aside, variation or review of the judgment dated 18/6/2025 delivered without their replying affidavit on record
- 2.Whether the failure to file the replying affidavit was an excusable mistake that should not be visited on the applicant
- 3.Whether the exparte applicant's non-disclosure of the replying affidavit and further affidavit disentitles it from the discretion being exercised in its favour
- 4.Whether public interest justifies declining to set aside the judgment
Key legal issues
#Right to be heard (audi alteram partem)
The applicant was entitled to be heard; the judgment was delivered without the participation of the respondents because their replying affidavit was never filed, warranting setting aside
The court applied Joseph Mbalu Mutava v Attorney General and Githiga v Kiru Tea Factory, holding that Article 50(2) imposes a duty to guarantee procedural justice by giving parties a reasonable opportunity to present their cases. The respondents stood to be condemned unheard despite raising arguable grounds in the replying affidavit, including prior determinations and offer letters.
Non-disclosure by the exparte applicant
The exparte applicant knew of the replying affidavit from 8/1/2025 yet did not disclose it or seek leave to file a further affidavit, conduct the court weighed against it but which did not defeat the application
The court found the written submissions of 24/3/2025 specifically addressed the contents of the replying affidavit, and an unfiled further affidavit attached to the submissions confirmed knowledge from 8/1/2025. The court held two wrongs do not make a right, but substantial loss from being condemned unheard outweighed the respondents' prejudice.
Public interest as a consideration
Public interest is not a main consideration in whether to set aside or review a judgment; the discretion is unfettered
The respondents argued the judgment addressed illegalities affecting over 700 households, but the court held that public interest does not govern the review/set-aside discretion. Substantial loss likely to be suffered by the applicant by being condemned unheard outweighed any loss to the respondents if the judgment were set aside.
Legal principles established
#- The right to be heard is a cardinal principle of the rule of law, and a defence disclosing triable issues cannot be shut out
- An unfiled but served replying affidavit amounting to new and important information warrants setting aside a judgment delivered without it
- A party aware of a matter must disclose it to the court; non-disclosure and approbate-and-reprobate conduct weigh against a party
Court orders
#- 1.The judgment delivered on 18/6/2025 is set aside
- 2.The replying affidavit is to be filed and served within 14 days from the date of the ruling
- 3.The further affidavit by the exparte applicant is to be filed and served within 21 days upon service with the replying affidavit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Inherent discretion under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules (review of judgment)
Relief refused
#Stay of execution of the judgment dated 18/6/2025
No evidence of execution of the judgment was presented; the judgment was set aside making a stay moot
Costs
No order as to costs is recorded in the judgment
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The upshot is that I set aside the judgment delivered on 18/6/2025. The replying afidavit is directed to be filed and served within 14 days from the date hereof. Equally, the further afidavit by the exparte applicant is directed to be filed and served within 21 days upon service with the replying.
One of the cardinal principles of the rule of law is the right to be heard and to be allowed to ofier a defence.
A party cannot blow both hot and cold at the same time. Approbate and reprobate at the same time. The sword of justice cuts both ways.
Where there is a defence that discloses triable issues, a court cannot shut out such a defence.
Public interest is not one of the main considerations on whether or not to set aside, vary, or review a judgment. The discretion to do so is unfettered.
Issues in the judgment
#Internal date contradictions: the application is dated 1/7/2025 and the judgment set aside dated 18/6/2025, but the supporting affidavit is described as 'sworn on 1/7/2025' yet deposes to a judgment 'dated 18/8/2025' and a replying affidavit 'dated 6/12/2025' that was 'filed and served on 11/12/2024'
The replying affidavit responding to the application is sworn on 2/7/2025, while the respondents' replying affidavit under challenge is dated 6/12/2024/6/12/2025, creating internal inconsistency in dates
Hearing date inconsistency: the court record is described as fixing 'the hearing was listed for 10/12/2023' in a sequence of 2024-2025 events, and directions on 12/2/2025 fix 'the hearing date on 1/4/2024'
The Land Registration Act is cited as 'Land Registration Act 2017' though the prevailing Act is of 2012 (as printed in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Attorney General & 6 others; Wilson (Ex parte Applicant) (Suing on behalf of the residents of Chepchoina Phase 111 in Trans Nzoia County) (Environment and Land Judicial Review Case E005 of 2024) [2025] KEELC 6068 (KLR)", Case Analysis (2025). Not stated in the judgment (judicial review proceedings arising from notice of motion dated 3/10/2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6068/eng@2025-09-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.