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ELCPartially AllowedNot stated in the judgment (Notice of Motion dated 4th August 2025)

Chweya v Shah (Environment and Land Case E041 of 2023) [2025] KEELC 7904 (KLR)

Environment and Land Court (or High Court seat at Nakuru - court not stated on face of ruling)
13 November 2025
1,293 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A Nakuru court allowed a defendant's lawyer, who missed a hearing due to hospitalisation, a second chance to defend a land case after paying the plaintiff Kshs. 25,000 in costs.

What this practically means

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Executive summary

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This ruling by M. A. Odeny, Judge, at Nakuru determined the Defendant/Applicant's Notice of Motion dated 4th August 2025 seeking to set aside the ex parte proceedings of 28th July 2025, in which the Plaintiff's case was heard and the Defendant's case closed without evidence, and to obtain a fresh hearing date. The application was supported by an affidavit of the Defendant's counsel, Michael Mutea, who deponed that on the hearing date he was hospitalised at AAR Healthcare for management of chronic non-healing foot ulcers, and that the Plaintiff would suffer no prejudice not compensable by costs. The Plaintiff's counsel, Kisilah Daniel Gor, opposed, deponing that the hearing date was taken by consent of both counsel, that he had urged the Applicant's counsel to send counsel to hold his brief, and that the Plaintiff had travelled from the United Kingdom on the eve of the hearing to testify, making setting aside of her testimony oppressive. The Applicant relied on Order 12 Rule 7 of the Civil Procedure Rules, Article 50 of the Constitution and authorities including Shah v Mbogo and CMC Holdings Ltd v James Mumo Nzioki; the Respondent relied on Ivita v Kyumbu and others. The court framed a single issue: whether the proceedings of 28th July 2025 should be set aside and a fresh hearing fixed. It noted the hearing date was taken by consent and that counsel should have arranged representation, and that the Defendant also failed to attend. Applying Muthaiga Road Trust Company Ltd v Five Continents Stationers Ltd on the court's unfettered discretion to do justice, the court set aside the proceedings, granted the Applicant leave to defend, awarded the Plaintiff thrown away costs of Kshs. 25,000/-, and directed the Applicant to fix the suit for hearing within 14 days failing which the order lapses.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the court should set aside the ex parte proceedings of 28th July 2025 and fix a fresh hearing for both parties

Key legal issues

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01

Whether the ex parte proceedings of 28th July 2025 should be set aside and a fresh hearing fixed

Holding

Yes - in the interest of justice the proceedings were set aside and the Applicant granted leave to defend, on condition of thrown away costs and fixing the suit for hearing within 14 days

Reasoning

The court weighed the Applicant counsel's hospitalisation against the Plaintiff's prejudice from having travelled from the UK and having her testimony set aside. Relying on Muthaiga Road Trust Company Ltd v Five Continents Stationers Ltd, the court held that its overriding concern is to do justice and its discretion should not be fettered, and balanced this against the Applicant's failure to attend court, compensated by thrown away costs.

p. 3

Legal principles established

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  • In setting aside applications the court's main concern is to do justice to the parties and its wide discretion should not be fettered

Court orders

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  1. 1.Proceedings of 28th July 2025 set aside
  2. 2.Applicant granted leave to defend the case
  3. 3.Applicant to pay thrown away costs of Kshs. 25,000/- to the Plaintiff
  4. 4.Applicant to fix the case for hearing within 14 days failing which the order lapses

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Inherent jurisdiction of the court under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 12 Rule 7 of the Civil Procedure Rules

Relief refused

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Costs of the application in the cause

Court instead awarded thrown away costs of Kshs. 25,000/- to the Plaintiff

p. 3

Costs

Applicant to pay thrown away costs to the Plaintiff of Kshs. 25,000/-; application otherwise granted

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the interest of justice, I therefore grant the Applicant leave to defend the case and set aside the proceedings of 28th July 2025. The Applicant to pay thrown away costs to the Plaintifi of Kshs.25,000/ as the Applicant did not attend court to defend the case. The Applicant to fix the case for hearing within 14 days failure to which the order lapses.
p. 3Final orders - setting aside ex parte proceedings with conditions
In an application for setting aside, the main concern of the court is to do justice to the parties and the court will not impose conditions on itself to fetter the wide discretion given to it by the rules
p. 3Discretion to set aside ex parte proceedings (Muthaiga Road Trust principle)

Issues in the judgment

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minor

Court and suit/case number are not stated on the face of the ruling; the identity of the Defendant is also not given

minor

The court cites Johana Kipkemei Too v Hellen Tum, a passage favouring the Plaintiff's position on prejudice, yet allows the application; the court does not expressly reconcile this tension

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, "Chweya v Shah (Environment and Land Case E041 of 2023) [2025] KEELC 7904 (KLR)", Case Analysis (2025). Not stated in the judgment (Notice of Motion dated 4th August 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7904/eng@2025-11-13

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