Chweya v Shah (Environment and Land Case E041 of 2023) [2025] KEELC 7904 (KLR)

4. The Respondent’s counsel deponed that the Plaintifi had travelled from the United Kingdom (London) on the eve of the hearing for the specific purpose of testifying in the matter and to set aside her testimony will be oppressive. Counsel asked the court to dismiss the application with costs. Applicant’s Submissions 5. Counsel for the Applicant filed submissions dated 26th September, 2025 and identified the following issues for determination: a. Whether the Defendant/Applicant has established cause for setting aside of the ex parte proceedings of 28th July, 2025? b. Whether the Defendant/Applicant is entitled to be heard on merit in accordance with the right to a fair hearing under Article 50 of the Constitution of Kenya, 2010? c. Whether the Plaintifi will sufier any prejudice that cannot be compensated by costs if the orders sought are granted? d. Whether it is in the interest of justice that the proceedings be set aside and the matter heard afresh? 6. On the first issue, counsel submitted that the Applicant has demonstrated that her counsel’s absence was occasioned by circumstances beyond her control and has acted promptly in bringing this application. Counsel relied on Order 12 Rule 7 of the Civil Procedure Rules and the cases of Shah v Mbogo & Another 1967 EA 116 and Philip Keipto Chemwolo & Another v Augustine Kubende [1986] KECA 87 (KLR). 7. On the second issue, counsel relied on Article 50 (1) of the Constitution of Kenya and submitted that the Applicant was denied the opportunity to present her case and adduce evidence due to circumstances beyond her control. Counsel relied on the cases of David Oloo Onyango v Attorney General [1987] KECA 56 (KLR) and James Kanyiita Nderitu & another v Marios Philotas Ghikas & another [2016] KECA 470 (KLR). 8. On the third issue, counsel submitted that the Plaintifi will not sufier any prejudice that cannot be compensated by an award of costs if the proceedings are set aside and the matter is heard afresh. Counsel relied on the case of Tree Shade Motors Limited v D.T Dobie and Company (K) Limited & Another [1998] KECA 40 (KLR). 9. On the fourth issue, counsel submitted that the applicant has demonstrated a genuine desire to be heard and has not acted in bad faith and relied on Sections 1A, 1B and 3A of the Civil Procedure Act and the case of CMC Holdings Ltd v James Mumo Nzioki [2004] KECA 143 (KLR). Respondent’s Submissions 10. 11. Counsel for the Respondent filed submissions dated 2nd October 2025 and identified the following issues for determination: a. Whether the Defendant/Applicant’s application dated 4th August, 2025 is merited? b. Whether it is in the interest of justice that the proceedings of 28th July 2025 be set aside and the matter be heard afresh? On the first issue, counsel submitted that the Defendant/Applicant has not shown any intention of having this matter proceed to a conclusion. Counsel submitted that no mention is made why the https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7904/eng@2025-11-13 2

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Defendant/Applicant did not attend Court to show her commitment to the proceedings and urged the court to take note of the Applicant’s conduct during the proceedings. Counsel relied on the cases of Shah v Mbogo & Another [1967] EA, Tana & Athi Rivers Development Authority v Jeremiah Kimigho Mwakio & 3 others [2015] eKLR, Philip Keipto Chemwolo & another v Augustine Kubende (1986) KECA and Habo Agencies Limited v Wilfred Odhiambo Musingo [2015] eKLR. 12. On the second issue, counsel submitted that setting aside the proceedings of 28th July, 2025 will be prejudicial to the Plaintifi/Respondent and submitted that the Defendant’s counsel was negligent when he failed to discharge his professional duty. Counsel relied on the case of Ivita v Kyumbu [1984] KLR 441, and urged the court to dismiss the application with costs. Analysis And Determination 13. The issue for determination is whether the court should set aside the proceedings of 28th July, 2025, and fix a fresh hearing for both parties. Counsel for the Applicant deponed that when this matter came up for hearing, he was admitted at AAR Healthcare, George William House Nairobi under the care of Dr. Ochieng Dan for management of chronic non-healing foot ulcers. 14. Counsel for the Respondent submitted that the Plaintifi had travelled from the United Kingdom (London) on the eve of the hearing of this suit and setting aside her testimony would be oppressive and prejudicial to her. 15. The hearing date was taken by consent of counsel for both parties and if counsel was unwell he should have asked an advocate to hold his brief to relay the information about his indisposition. The Defendant should also have appeared in court for the hearing of the suit. This did not happen. In the case of Johana Kipkemei Too v Hellen Tum [2014] eKLR, the court stated as follows: “ the Plaintifis will be greatly prejudiced if I am to allow this application by the Defendant. The Plaintifis have already closed their case and will not have an opportunity to rebut the new evidence. It will be unfair to the Plaintifis, if I am to allow the Defendant, at this late stage of the proceedings, to fundamentally alter the character of her case, to one that the Plaintifis never contemplated when tabling their evidence. In essence, the trial will end up being unfair to the Plaintifis and will violate the provisions of Article 50(1) of the Constitution.” 16. However, in the case of Muthaiga Road Trust Company Ltd v Five Continents Stationers Ltd & 25 Others (2003) KLR 714, the Court of Appeal had held that: “ In an application for setting aside, the main concern of the court is to do justice to the parties and the court will not impose conditions on itself to fetter the wide discretion given to it by the rules”. 17. In the interest of justice, I therefore grant the Applicant leave to defend the case and set aside the proceedings of 28th July 2025. The Applicant to pay thrown away costs to the Plaintifi of Kshs.25,000/ as the Applicant did not attend court to defend the case. The Applicant to fix the case for hearing within 14 days failure to which the order lapses. DATED, SIGNED AND DELIVERED AT NAKURU THIS 13TH DAY OF NOVEMBER 2025. M. A. ODENY JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7904/eng@2025-11-13 3

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