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ELCDismissedNot stated in the judgment (a related matter No. E058 is mentioned)· [2026] KEELC 2767 (KLR)

Waweru & another v Faith & Hope Properties Kenya Limited (Environment and Land Case E054 of 2022) [2026] KEELC 2767 (KLR)

Not expressly stated in the judgment; delivered at Machakos before Hon. A. Y. Koross, Judge
12 May 2026
AKA. Y. Koross
2,021 words in judgment
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The bottom line

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A Machakos court refused to reopen a defence case the defendant had repeatedly failed to prosecute, ruling that fair-hearing rights cannot excuse a party's own delay and misrepresentation.

What this practically means

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Executive summary

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This is a ruling on the defendant's notice of motion dated 23 July 2025, which sought to set aside and/or vacate the court's orders of 20 March 2025 and 10 June 2025 closing the defence case, and to have the suit reinstated for hearing on its merits. The application, brought under Articles 48 and 50 of the Constitution, Sections 1A and 3A of the Civil Procedure Act and Order 12 rule 7 of the Civil Procedure Rules, was supported by an affidavit of David Kabogo, who claimed the defendant lost track of the matter after directions of 21 November 2024 that it begin afresh before an incoming judge. The plaintiff's counsel, Mr. Omondi Samuel Ogutu, opposed, showing that the defendant's counsel and chairman attended the 11 April 2024 hearing, obtained adjournments, and were notified of the 20 March 2025 hearing but declined to join the online session. The court framed a single issue: whether it should set aside the orders closing the defence case. Applying Order 12 rule 7 and the principles in Shah v Mbogo (as approved in John Waweru Njenga v Motor Botique Limited) and Ivita v Kyumbu, the court reviewed the record and found the defendant had substantially misrepresented the facts: the matter was never directed to proceed de novo, the defendant was continuously represented by counsel (Ms. Anyang, then Mr. Kivuti/Mr. Mungai), hearing dates were taken by consent, and no notice of change of advocates was filed. The court held that Articles 50 and 159 cannot aid a party that failed to prosecute its case when given the opportunity, and that reopening would cause significant difficulty, injustice and prejudice to the plaintiffs. The Notice of Motion was dismissed with costs in the cause; a mention was set for a judgment date before Hon. Lady Justice A Nyukuri, with the defendant at liberty to file submissions within 21 days.

Key legal issues

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Whether the court should set aside the orders closing the defence case under Order 12 rule 7 of the Civil Procedure Rules

Holding

The application was dismissed; the defendant, having been continuously represented and having failed to prosecute its case repeatedly while making misrepresentations, was not entitled to the exercise of the court's discretion

Reasoning

Order 12 rule 7 permits the court to set aside a judgment or dismissal on such terms as are just. The court applied Shah v Mbogo and Ivita v Kyumbu, which require that the discretion serve to avoid injustice from accident or excusable mistake, and that prolonged delay be weighed against whether justice can still be done. The record showed counsel for the defendant attended throughout, hearing dates were taken by consent, adjournments were accommodated, and the defendant's account (that the matter was to start de novo and that it lost track of the suit) was a misrepresentation. Reopening would prejudice the plaintiff and delay conclusion of the trial.

p. 4

Legal principles established

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  • The discretion to set aside ex parte decisions is meant to avoid injustice from accident, inadvertence or excusable mistake, not to assist a party who deliberately obstructed or delayed justice
  • The test for excusing delay is whether the delay is prolonged and inexcusable and whether justice can still be done despite it
  • Constitutional fair-hearing guarantees do not avail a party who was given an opportunity to prosecute its case and failed to do so

Court orders

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  1. 1.The Notice of Motion dated 23 July 2025 is dismissed with costs in the cause
  2. 2.A mention date to be given before Hon. Lady Justice A Nyukuri for purposes of issuing a judgment date
  3. 3.Defendant at liberty to file its submissions within 21 days hereof

Authorities

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Legislation

  • Constitution of KenyaArticle 48
  • Constitution of KenyaArticle 50
  • Constitution of KenyaArticle 159
  • Civil Procedure ActSections 1A and 3A
  • Civil Procedure RulesOrder 12 rule 7

Cases cited (3)

  • Shah v Mbogo and Another
    [1967] EA 116
  • John Waweru Njenga & 5 others v Motor Botique Limited
    [2020]
  • Ivita v Kyumbu
    [1975] KEHC 4 (KLR)
Jurisdiction invoked
Articles 48 and 50 of the Constitution, Sections 1A and 3A of the Civil Procedure Act, Order 12 rule 7 of the Civil Procedure Rules (as invoked in the notice of motion)

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, "Waweru & another v Faith & Hope Properties Kenya Limited (Environment and Land Case E054 of 2022) [2026] KEELC 2767 (KLR)", Case Analysis (2026). Not stated in the judgment (a related matter No. E058 is mentioned). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2767/eng@2026-05-12

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