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ELCDismissedEnvironment and Land Case Civil Suit E102 of 2021· [2026] KEELC 5505 (KLR)

Longspur Development Ltd v Syokimau Farms Ltd & 2 others

Environment and Land Court
22 September 2026
AKA. Y. Koross
1,727 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Machakos court refused to re-open a land case because the defendants' lawyers missed the hearing and a different, unregistered law firm tried to explain why.

What this practically means

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Executive summary

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The defendants applied by notice of motion dated 15 November 2025, under Order 51 Rule 1 of the Civil Procedure Rules, 2010 and Sections 1A, 1B and 3A of the Civil Procedure Act, to set aside the proceedings of 30 September 2025, at which the plaintiff's case was heard and closed while the defendants' case closed unheard, and to re-open the hearing and recall the plaintiff's witnesses for cross-examination. Counsel Mr. Alex Masake deposed that the defendants' counsel suffered a medical emergency attending a critically ill mother, that holding-brief counsel Ms. Nakhanu could not reach Machakos in time due to a network breakdown, and that the plaintiff's counsel nonetheless proceeded ex parte. The plaintiff, through counsel Karen Muthee, opposed, contending the defendants had repeatedly sought adjournments, that the excuses did not explain why the matter could not proceed, and that the application filed nearly two months later was a calculated delay tactic. The court framed a single issue: whether it should exercise its discretion to set aside the proceedings, re-open the hearing and recall witnesses. Relying on Patriotic Guards Ltd v Sambu and Shah v Mbogo, the court held the discretion must be exercised judiciously to avoid injustice from accident, inadvertence or excusable mistake, not to assist deliberate delay. Critically, the court found that the counsel advancing reasons for non-attendance were from Wangusi I.N. Advocates, a firm not on record, the firm on record being Shabaan Associates LLP, with no notice of change of advocates filed; neither that firm nor the defendants explained their absence. Noting the defendants' history of absences and non-compliance, the court dismissed the motion with costs in the cause.

Key legal issues

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Whether the court should exercise discretion to set aside the ex parte proceedings and re-open the hearing

Holding

The application fails; the reasons for non-attendance were advanced by counsel from a firm not on record, and neither the defendants nor their counsel on record explained the absence

Reasoning

The court accepted the Shah v Mbogo principles that discretion to set aside ex parte decisions exists to avoid injustice from accident, inadvertence or excusable mistake, but not to assist deliberate delay. Here the supporting affidavit was deposed by counsel from Wangusi I.N. Advocates while the firm on record was Shabaan Associates LLP, with no notice of change filed. The defendants' litigation conduct showed repeated absences and non-compliance, so the discretion was declined.

Legal principles established

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  • Discretionary powers to set aside ex parte proceedings must be exercised judiciously, to avoid injustice from accident, inadvertence or excusable mistake, not to assist deliberate obstruction or delay
  • A law firm not on record cannot advance reasons for non-attendance in a matter it is a stranger to

Court orders

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  1. 1.The defendants' application dated 15 November 2025 seeking to set aside the proceedings of 30 September 2025 and to re-open the hearing is dismissed
  2. 2.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 51 Rule 1
  • Civil Procedure Rules, 2010Order 12 Rule 7
  • Civil Procedure Rules, 2010Order 18 Rule 10
  • Civil Procedure ActSections 1A, 1B and 3A
  • Evidence ActSection 146(4)

Cases cited (3)

  • Patriotic Guards Ltd v James Kipchirchir Sambu
    Nairobi CA No. 20 of 2016, (2018)eKLR

    Discretion must be exercised judiciously and not on caprice, upon legal principles and to do real and substantial justice

  • Shah v Mbogo and Another
    [1967] EA 116

    Discretion to set aside ex parte decisions is to avoid injustice, not to assist deliberate obstruction or delay

  • John Waweru Njenga & 5 others v Motor Botique

    Approved the Shah v Mbogo principles on setting aside ex parte decisions

Jurisdiction invoked
Order 12 Rule 7 and Order 51 Rule 1 of the Civil Procedure Rules, 2010; Sections 1A, 1B and 3A of the Civil Procedure Act; Section 146(4) of the Evidence Act

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, "Longspur Development Ltd v Syokimau Farms Ltd & 2 others", Case Analysis (2026). Environment and Land Case Civil Suit E102 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5505/eng@2026-09-22

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