Moseti v Chacha (Sued as Legal Representative of the Estate of the late Sigismundis Sarara Marwa (Deceased) & another (Enviromental and Land Originating Summons E018 of 2021) [2025] KEELC 6860 (KLR)

suit land. The Applicant further avers that he only became aware of the ex parte proceedings and the judgment on being served with copies on 22nd May 2023 and that execution has been initiated. 3. The Respondents oppose the application. The 2nd Respondent filed a replying afidavit dated 27th June 2023 and written submissions dated 25th July 2023 asserting that the Applicant and his counsel were repeatedly notified of mention and hearing dates by email and physically, that the Applicant has been dilatory in prosecuting the suit since its institution in May 2021, and that the excuse of inadvertence is neither convincing nor suficient. 4. The Respondents contend that they would be prejudiced by setting aside a lawfully obtained judgment and invite the Court to dismiss the application with costs. 5. Both parties filed written submissions. The Applicant relies heavily on the equitable principle that a party should not be condemned unheard and on Shah v Mbogo; the Respondents rely on authority that equity aids the vigilant and not the indolent and stress that a litigant cannot hide behind an advocate’s omissions [see inter alia Savings & Loan Ltd v Susan Wanjiru Muiru Nairobi [milimani] HCCC No.397 of 2002 and decisions cited in their submissions]. 6. Having considered the afidavits, the record and the submissions, I find the following issues necessary for determination: a. Whether the Applicant has shown suficient cause to justify setting aside the ex parte proceedings of 19th January 2023 and the judgment dated 10th May 2023. b. If suficient cause is shown, what orders should the Court make. Brief Background 6. The suit was instituted by Originating Summons filed on 3rd May 2021. The Respondents entered appearance and filed replying afidavits. Between 2021 and 2022 several mention and hearing dates were communicated by the court and by the Respondents’ advocates by email and, in some instances, physically. On 2nd November 2022 the matter was fixed for hearing on 19th January 2023. The Applicant and his counsel did not attend on that date and the matter proceeded ex parte. Judgment in favor of the Respondents was delivered on 10th May 2023. The Applicant received the decree and judgment on 22nd May 2023 and filed the instant application on 26th May 2023. Law and Analysis 7. Order 12 Rule 7 of the Civil Procedure Rules that provides that: “ Where under this Order judgment has been entered or the suit has been dismissed, the court, on application, may set aside or vary the judgment or order upon such terms as may be just.” 8. The leading principle is succinctly stated in Shah v Mbogo [1967] EA 166 where the court described the object of the discretion as being: “ to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error but it is not designed to assist the person who has deliberately sought whether by evasion or otherwise to obstruct or delay the course of justice. However, the discretion of the court must always be exercised judiciously with the sole intention of dispensing justice to both or all of the parties. Each case must therefore be evaluated on its own unique facts https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6860/eng@2025-07-21 2

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and circumstances. Among the factors to be considered is whether the Applicant will sufier any prejudice if denied an opportunity to be heard on merit....” 9. The Court must therefore weigh the Applicant’s explanation for non-appearance and the surrounding circumstances against any prejudice that may be sufiered by the Respondents if the judgment is set aside. Considerations include: whether the Applicant’s non-attendance was inadvertent or deliberate, whether the Applicant has an arguable case on the merits, whether there has been inordinate delay or negligence amounting to indolence on the part of the Applicant, and whether the Respondents will be prejudiced by allowing the application. 10. On the Applicant’s side, the afidavit evidence is that service of the judgment and decree on 22nd May 2023 was the first occasion on which the Applicant and his counsel appreciated that the matter had proceeded and that the hearing notice sent by email on 11th November 2022 [and earlier mention notices] had not been read in time. The Applicant avers that counsel inadvertently failed to open/read the email and that the failure was caused by his counsel’s admitted dificulties with I.T. and computers. The Applicant further swears that he has invested in and occupies the suit land since 1999 and will sufier irreparable loss if he is not heard. 11. On the Respondents’ side, there is material to show that multiple mention and hearing notices were issued over a protracted period [including mention notices in 2021 and 2022] and that emails and physical service were efiected. The Respondents say delivery receipts and afidavits of service are on record. They further highlight that the Applicant has not prosecuted the matter diligently since 2021 and that, in any event, the Applicant’s assertion that only one email was missed is insuficient when numerous notices had been issued. 12. The Court accepts that an advocate’s omission may, in some circumstances, be visited on the client, for it is the litigant’s duty to keep in touch with the progress of his case and to ensure that the suit is prosecuted. As was observed in Savings & Loan Ltd v Susan Wanjiru Muiru Nairobi [milimani] HCCC No.397 of 2002 and as reiterated in subsequent decisions], “a case belongs to a litigant and not to her advocate. A litigant has a duty to pursue the prosecution of his or her case.” The same principle appears in other authorities relied upon by the Respondents and in judicial dicta that equity aids the vigilant and not the indolent. 13. Nevertheless, the principle in Shah v Mbogo [1967] EA 166 requires the Court to guard against injustice where there has been an excusable mistake or inadvertence. The Applicant’s afidavit explains the omission as inadvertent and not deliberate. The Applicant also asserts that he has an arguable case and will sufier grave loss if denied an opportunity to be heard. 14. The Respondents contend that the Applicant’s conduct since 2021 demonstrates indolence and reliance on a single missed email should not disentitle them to the judgment they obtained. The Court accepts that there are indicia of delay; the Applicant did not proactively attend court or follow up the progress of the matter after 2021 as diligently as might be expected. However, delay alone is not an absolute bar to relief where cogent and credible explanation is provided and where the balance of justice favours permitting a hearing on the merits. 15. I have regard also to the fact that the Respondents have not shown that they have commenced irreversible execution steps that would render the setting aside of the judgment futile, nor have they demonstrated irremediable prejudice that cannot be addressed by appropriate terms [for example, costs]. The Respondents’ ofier to accept throw-away costs is a relevant concession. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6860/eng@2025-07-21 3

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16. The Court has considered authorities on the exercise of judicial discretion in similar circumstances. In Et Monks & Company Ltd v Evans [1985] KLR.where Kneller, J [as he then was] stated as follows:“ Whether or not the application should be allowed is a matter for the discretion of the judge who must exercise it, of course, judicially. Each turns on its own facts and circumstances...If an action is dismissed for want of prosecution the plaintifi has certain options if it is not his fault. It may sue its advocate for negligence unless it has caused or consented to the delay which has resulted in the action being dismissed for want of prosecution. Advocates for the most part insure against the risk of liability for professional negligence. The plaintifi then has a remedy not against the defendants but against its own advocates...It is the duty of a plaintifi to bring his suit to early trial, and he cannot absolve himself of this duty by saying that the defendant consented to the position…" 17. In Philip Chemwolo & Another v Augustine Kubende [1982-88] KAR 103, the Court of Appeal held that: “ Blunders will continue to be made from time to time, and it does not follow that because a mistake has been made that a party should sufier the penalty of not having his case heard on merits. The broad equity approach is that unless there is fraud or intention to overreach, there is no error or default that cannot be put right by payment of costs. The Court exists for the purpose of deciding the rights of the parties, and not for the purpose of imposing discipline.” 18. This authority is particularly apt to the present application where the Applicant’s failure to attend court was explained as inadvertent, and the Respondents’ prejudice can be compensated by costs. 19. On the facts of the present case the Applicant’s explanation rests on 20. [a] actual receipt of the hearing notices by email but [b] inadvertent failure by counsel to open/read the email; and [c] the Applicant’s pleaded interest and investment in the land. The Respondents have shown that notices were issued on several occasions; but they have not demonstrated that irreparable prejudice will result if the judgment is set aside and the suit is heard on the merits. Having balanced the factors: the Applicant’s explanation, the enquiries for expedition, the Respondents’ conduct and the absence of irremediable prejudice. I find that discretion should be exercised in favour of allowing the application but that the discretion should be exercised on terms that protect the Respondents from abuse and delay. Orders 21. Accordingly, having considered the Notice of Motion dated 26th May 2023, the supporting afidavit of the Applicant, the replying afidavit and submissions filed in opposition, and the authorities cited, I find that the Notice of Motion dated 26th May 2023 is merited and I will allow the same in the interest of justice to enable the Applicant to ventilate the issues and assist the Court in arriving at a just and fair determination. 22. It is hereby ordered as follows: Following the order: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6860/eng@2025-07-21 4

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a. I proceed to vacate and set aside the ex parte proceedings of 19th January 2023 and the Judgment dated 10th May 2023. b. The Plaintifi/Applicant shall set down the suit herein for hearing within 45 days from the date of this judgment. c. The Plaintifi/Applicant shall pay the Defendant / Respondent a sum of KShs. 50,000 [Fifty Thousand Kenya Shillings] as throw-away costs. It is so ordered! DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON 21ST DAY OF JULY, 2025. MOHAMMED N. KULLOW JUDGE Ruling delivered in the presence of: N/A for the Plaintifi. Defendant present in court. Philomena W. Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6860/eng@2025-07-21 5

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