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ELCPartially Allowed· [2026] KEELC 1389 (KLR)

Ethics and Anti-Corruption Commission v Sang & 3 others (Environment and Land Case 81 of 2018) [2026] KEELC 1389 (KLR)

Environment and Land Court
5 March 2026
LOL. A. Omollo
3,110 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court refused to restart a land trial but let a absent defendant return and cross-examine witnesses within 60 days, at his own cost.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kericho (L. A. Omollo, J) determined a Notice of Motion dated 14th July, 2025 by the 4th Defendant, Wilson Gachanja, former Commissioner of Lands (1989-1999), in a land suit filed by the Plaintiff on 11th December, 2018 concerning Land Parcel LR No. 631/1833, Kericho County, where the Plaintiff seeks declarations of fraudulent allocation, rectification of the register and permanent injunction. The hearing of the Plaintiff's and 1st-3rd Defendants' cases had closed without the 4th Defendant's participation, with the Plaintiff calling seven witnesses and the Co-Defendants five. The 4th Defendant sought setting aside of the proceedings or, in the alternative, recall of the witnesses for cross-examination, contending a communication breakdown with his former advocates and the burden of numerous personal suits. The Plaintiff opposed, invoking Articles 159(2)(b) and Sections 1A and 1B of the Civil Procedure Act, relying on Hunker Trading v Elf Oil and Shah v Mbogo, and arguing the Applicant was indolent, had been properly served through his advocates, and that setting aside would cause great prejudice. The court framed a single issue: whether the application had merit. Relying on Githui v Thiongo, which applied Shah v Mbogo, the court noted affidavits of service on the Applicant's former advocates, whose awareness of the proceedings was undisputed. Declining to set aside the proceedings as this would set back the trial, the court instead allowed the alternative prayer, granting leave to recall the Plaintiff's and Co-Defendants' witnesses for cross-examination only, within 60 days on two consecutive days, at the Applicant's cost, failing agreement to be taxed by the Deputy Registrar. The application was thus partially allowed.

Key legal issues

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Whether the 4th Defendant demonstrated sufficient cause for the setting aside of proceedings held in his absence, or alternatively for the recall of witnesses for cross-examination

Holding

The court declined to set aside the proceedings but granted the alternative prayer allowing the 4th Defendant to cross-examine witnesses who had testified, on strict conditions

Reasoning

The court noted that the 4th Defendant's former advocates had entered appearance and filed a defence, and that hearing notices were served on that firm on numerous dates evidenced by affidavits of service. The Applicant did not dispute that his counsel was aware of the suit's progress. Nonetheless, the court weighed its duty under Sections 1A, 1B and 3A of the Civil Procedure Act and Article 159(2) of the Constitution to ensure expeditious and fair disposal, and found that setting aside the entire proceedings would set back the trial. It therefore opted for the less prejudicial remedy of cross-examination, with the Applicant bearing the recall costs and a 60-day timeframe imposed.

p. 7

Legal principles established

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  • The discretion to set aside ex parte proceedings is intended to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake, but not to assist a person who has deliberately obstructed or delayed the course of justice

Court orders

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  1. 1.Leave is hereby granted to the 4th Defendant/Applicant to recall the Plaintiff's and his Co-Defendants' witnesses for purposes of cross-examination only
  2. 2.The 4th Defendant/Applicant shall meet the cost of recall of the said witnesses which cost shall be agreed by counsel appearing in this matter
  3. 3.In the event of failure to agree as set out in (b) above, the costs shall be determined by the Deputy Registrar of this court
  4. 4.The cross-examination of the witnesses shall be done within 60 days of the date hereof and on two consecutive days as shall be directed by this Court

Authorities

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Legislation

  • Constitution of KenyaArticle 50
  • Constitution of KenyaArticle 50(1)
  • Constitution of KenyaArticle 159
  • Constitution of KenyaArticle 159(2)(b)
  • Constitution of KenyaArticle 159(2)(d)
  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1A(3)
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 3A
  • Evidence ActSection 146

Cases cited (3)

  • Hunker Trading Company Limited vs Elf Oil Kenya Limited
    [2010] eKLR
  • Shah vs Mbogo
    [1967] EA 116
  • Githui v Thiongo & 2 others
    [2025] KEELC 574 (KLR)
Jurisdiction invoked
Section 3A of the Civil Procedure Act and Articles 50 & 159 of the Constitution of Kenya

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 and Anti-Corruption Commission v Sang & 3 others (Environment and Land Case 81 of 2018) [2026] KEELC 1389 (KLR)", Case Analysis (2026). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1389/eng@2026-03-05

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