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ELCAllowedELC Appeal (Mombasa) - arising from ELC MISC. NO. E045 OF 2023· [2026] KEELC 4247 (KLR)

Gacanja v Njuguna Kahari & Kiai & Co.Advocates (Environment and Land Appeal E006 of 2025) [2026] KEELC 4247 (KLR)

Environment and Land Court
1 July 2026
AOAntony O. Ombwayo
2,642 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court cannot ignore a judgment debtor's late-filed affidavit or issue arrest warrants without hearing them first.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Mombasa, by Wilson Gacanja, against the ruling and orders of Hon. C. Yalwala [SPM] delivered on 29th January 2025 in ELC Misc. No. E045 of 2023. The underlying dispute concerned an advocate/client bill of costs of Kshs. 2,279,740 assessed against the appellant in favour of the respondent advocates. After judgment was entered on 18th September 2024, the respondent issued a Notice to Show Cause why the appellant should not be committed to civil jail. The appellant, though aware of the hearing, did not attend, but filed an affidavit out of time on 10th December 2024. The magistrate directed that the NTSC proceed as if no affidavit had been filed, and issued warrants of arrest to bring the appellant before court for inquiry into committal. On appeal, the appellant argued that the magistrate disregarded a duly filed affidavit, condemning him unheard contrary to Article 50 of the Constitution. The respondent maintained that the order was not one of committal and complied with Order 22 rule 34(2). The ELC allowed the appeal, holding that since the affidavit was on record when the decision was made, the magistrate erred in failing to consider it; the right to be heard, especially where a jail term is in prospect, is a cardinal rule of natural justice grounded in Article 50(1). The ruling of 29th January 2025 was set aside and the NTSC remitted to the Chief Magistrate's Court Mombasa for hearing by a magistrate other than Hon. Yalwala on a priority basis, with costs of the appeal to the appellant.

Key legal issues

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01

Whether the magistrate erred in disregarding the appellant's affidavit filed out of time

Holding

Yes - the affidavit was on record when the decision was made and ought to have been considered; the appellant should have been granted an extension of time to have it deemed properly on record.

Reasoning

Order 22 rule 34(2) requires the court to be satisfied of specified grounds before committing a judgment debtor. The debtor may respond by affidavit or in person. The appellant chose to file an affidavit; though late, it was on record when the court ruled. Proceeding as if no affidavit existed and issuing warrants of arrest denied the appellant a hearing. The affidavit was the answer to the NTSC, and no material prejudice to the decree-holder was demonstrated.

p. 7
02

Whether the appellant's right to a fair hearing under Article 50(1) was contravened

Holding

Yes - the right to be heard, especially when one faces a jail term, should not be wished away.

Reasoning

Article 50(1) guarantees every person a fair and public hearing before a court. The right to be heard is a cardinal rule of natural justice. Facing committal to civil jail engages this right in its most serious form, so procedural inflexibility over a late affidavit could not justify issuing warrants without considering the debtor's answer. Article 47 and the Fair Administrative Action Act, 2015 reinforce the requirement of procedural fairness.

p. 7

Legal principles established

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  • In a Notice to Show Cause, the judgment debtor may show cause either through an affidavit or by attending court in person; an affidavit on record must be considered even if filed out of time, where its filing has not materially prejudiced the other party.
  • The right to be heard is a cardinal rule of natural justice and cannot be taken away without good reasons.

Court orders

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  1. 1.Appeal allowed
  2. 2.Ruling dated 29th January 2025 set aside
  3. 3.Matter remitted back to the Chief Magistrates Court Mombasa for hearing of the notice to show cause by a Magistrate other than Hon Yalwala Chief Magistrate
  4. 4.The notice to show cause to be heard on a priority basis
  5. 5.Costs of the appeal to the appellant
On appeal from
Chief Magistrate's Court (ELC), Mombasa
ELC MISC. NO. E045 OF 2023
Jurisdiction invoked
First appeal from the ruling and orders of the Senior Principal Magistrate in ELC MISC. NO. E045 OF 2023

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, "Gacanja v Njuguna Kahari & Kiai & Co.Advocates (Environment and Land Appeal E006 of 2025) [2026] KEELC 4247 (KLR)", Case Analysis (2026). ELC Appeal (Mombasa) - arising from ELC MISC. NO. E045 OF 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4247/eng@2026-07-01

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