Kalandini Holdings Limited v Kiberu & another

replying adavit, based on the grounds that they relate to facts and not instructions received from the client. 6. Learned counsel, Miss Kethi Kilonzo for the plaintis, argued the application, which Mr Makori for the defendant responded to, that under Order 19 Rule 2 of the Civil Procedure Rules it is a discretionary power of the court, based on exceptional circumstances, to allow such cross-examination. 7. By a ruling dated 7.12.2023, the court held that there were no special circumstances to warrant the order to cross-examine Mr Makori, Advocate. The court held that the issue raised for the crossexamination should be dealt with at the hearing of the main suit. 8. It appears when the matter came up on 6.3.2024, the interested party was granted 14 days to enter appearance. The application dated 19.12.2024 was compromised on the condition that the suit property shall not be alienated dispensed o during the pendency of the suit. The parties were ordered to comply with Order 11 of the Civil Procedure Rules. On 19.6.2024, the parties were ordered to put in a paginated trial bundle. A hearing date for 4th and 11th November 2024 was taken by consent. 9. The matter could not proceed on 4.11.2024 as the parties had not updated their trial bundles. 10. When the matter came up on 11.11.2024, there was an objection due to a late ling of documents by the interested party without leave of court. The matter was then adjourned. Parties also expressed interest in inspecting original documents by the interested party, while the defendant sought to have the original maker(s) of some of the plainti’s documents cross-examined. A hearing date was set for 1.4.2025 and 7.4.2025. 11. The suit could not proceed on 1.4.2025 since the interested party was reported as sick. The court gave an adjournment, though no medical report was availed, nor was notice to that eect given to the other parties. Costs were awarded to the plainti. Witness summons were issued for an attendant from Mayu Properties to come to court on the next hearing date after 7.4.2025. The application dated 19.3.2025 was xed for 7.4.2025. It could not proceed on account of the sickness of Miss Kethi Kilonzo and was xed for 3.11.2025. 12. On 3.11.2025, the plaintis were ready with two witnesses. The witness from Mae Properties did not show up, as he was said to be bereaved, according to Mr Makori, Advocate. 13. Miss Maina, for the interested party, was also not ready, as she had a newborn child. The case was then adjourned at the behest of the interested party for hearing on 27.4.2026. The matter was then allocated new dates by the deputy registrar on 20.4.2026, 16.6.2026, and 9.7.2026, in the presence of Mr Kethi Kilonzo for the plainti and Mr Makori and Mr Odhiambo for the defendant and the interested party, respectively. Witness summonses were also extended to the attendee from Mae Properties Ltd. 14. On 16.6.2026, the defendant and the interested party did not show up. The hearing date of 9.7.2026 was then conrmed. 15. When the matter came up on 9.7.2026, the plainti told the court it had ve witnesses. 16. Mr Makori said that his witness was bereaved and that there was a pending application, though he was ready to proceed with the plainti’s case. 17. Mr Maina told the court that he was not ready to proceed and that his application to cease acting had been directed to and was served upon his client as per a return of service before court. 18. The application was allowed by consent, though it had been led three days before the hearing date. Learned counsel Mr Maina informed the court that his client was aware of both the application and https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5588/eng@2026-09-16 2

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the hearing date. The matter was then listed for hearing at noon. When the matter came up at noon, Mr Makori told the court that the presence of the interested party was critical and that his client had instructed him to apply for an adjournment in order to serve the interested party with a hearing notice in person. Learned counsel gave a cellphone number of the interested party, namely 0721219289, which the court assistant used to call the interested party, who conrmed that he was aware of the hearing date and the lawyer’s withdrawal from acting for him. 19. At that juncture, the court directed that the matter proceed for hearing. 20. On behalf of the plainti, PW 1 took the witness stand, conrming that he had prepared the conveyance documents used to transfer the suit property, including an adavit he swore before court on 111.2023. 21. Learned counsel for the plainti sought to have her witness declared a hostile witness, for he had taken the stand in an earlier replying adavit contrary to her client as regards due diligence and the root of title. 22. Learned counsel submitted that the issue had been raised in the earlier ruling of the court dated 7.11.2023 and was directed to be raised at the hearing. 23. Learned counsel submitted that the application was grounded on the Evidence Act to allow the plainti to ask leading questions. 24. Learned counsel Mr Makori submitted that the application was lacking merits since, as an ocer of the court, there was no basis that would give contrary evidence to what is before the court already. 25. Learned counsel submitted that the application to have him declared a hostile witness was aimed at prejudicing him and his character, for his earlier adavit mainly explained what had transpired before the sale and transfer of the land to the defendant by the interested party. 26. The court, in a ruling, held that it was in the interest of justice to allow for the witness to be crossexamined. Learned counsel sought leave to appeal and to be stood down as a witness pending the appeal, which the plainti opposed since the witness had already testied and produced exhibits on behalf of the plainti. Learned counsel said that there was no basis to stay the proceedings, for there was no pending appeal. 27. Learned counsel in a rejoinder told the court that though he came ready to testify, he had to safeguard his right and therefore, the other witness in the meantime could testify. 28. The court declined to stay the matter or stand down the witness, guided by the case law of Re-Global Tours and Travel. 29. The matter then proceeded with the cross-examination of PW 1. Equally, the matter proceeded with PW 2, whom the defendant cross-examined. The suit was then adjourned by consent for 17.7.2026, when the instant application dated 15.7.2026 was brought to the attention of the court. 30. In the said application, the court is asked by the interested party to: i. Stay further hearing of the suit. ii. Set aside the proceedings of 9.7.2026 in the absence of the interested party and his lawyer. iii. In the alternative, the evidence received on 9.7.2026 shall not be acted upon, referred to or relied upon as against the interested party unless and until the witnesses who gave evidence are recalled or tendered for cross-examination by the interested party. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5588/eng@2026-09-16 3

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iv. PW 1 and PW 2 be recalled under section 146 (4) of the Evidence Act for cross-examination by the interested party and further examination as the court may direct. v. Leave be granted to the interested party to amend the statement of defence as per the annexed draft, and leave be extended to the other parties to serve consequential pleadings or responses. vi. Fresh directions be taken for further conduct of the matter, including reasonable time be availed for the interested party through his newly appointed advocates to peruse the record and prepare. 31. The grounds are set out on the face of the application and in a supporting adavit of John M. Monyongo sworn on 15/9/2026. 32. The interested party says that he is at the centre of the dispute over the land after acquiring it from Mae Properties Ltd; he sold and transferred it to the defendant for valuable consideration, yet the plainti says that it was fraudulently obtained, sold and transferred. 33. The interested party says that he had led a defence and list of documents and was always ready to participate in the matter to test the plainti's case until his lawyer applied to cease acting, which application was to come up for hearing on 23/9/2026 as per annexure JOM (1). 34. The interested party states he reasonably and honestly believed that the question of legal representative was to be dealt with on 23/9/2026 and the matter would not proceed against him until the issue was sorted out and he made arrangements for new lawyers to represent him. 35. The interested party states that, though he did not attend court on 9.7.2026, in the middle of the hearing he received a call, during which he conrmed being aware of the matter but was not asked if he consented to have the matter proceed in his absence and thereafter he had no opportunity to follow, participate in a test the proceedings then underway. 36. The interested party states that the application to cease acting was dealt with in his absence, prejudicing him; a request for an adjournment to have him notied or seek legal representation was declined; the hearing proceeded with two witnesses, yet that of PW 2 bears directly on him and he was not accorded an opportunity to cross-examine them, condemning him unheard. 37. The applicant states that he was only able to secure new advocates to represent him on 13.7.2026 as per annexure marked JOM (2), who has made the application to cure the prejudice and also seek to amend his defence to plead suciently on the lawfulness of his dealings and the invalidity of the plainti's alleged title; hence the intended amendment as per annexure marked JOM (3). 38. The applicant states that the trial is at an early stage; recall of the witnesses will not be an inconvenience, as opposed to the prejudice to him if the reliefs sought are declined. 39. The applicant states that the application is made in good faith and not to delay the matter, so long as he is given adequate time, and was willing to expedite the hearing. 40. The application is opposed through a replying adavit of Caroline Mutinda sworn on 16.7.2026. It is deposed that the interested party is not a substantive party to the suit, with any claim or indemnity sought against him by the defendant to have larger rights than any of the principal parties. 41. The plainti deposes through its director that the parties are bound by their pleadings and, by joining the suit in that capacity, the interested party cannot claim larger or expanded rights; otherwise, he now seeks to continue delaying the hearing of the matter. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5588/eng@2026-09-16 4

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42. The plainti deposes that the application to cease acting was led on the eve of the hearing on 15.6.2026 for lack of instructions despite several reminders. 43. The plainti deposes that since the matter was not listed for 16.7.2026 but on 9.7.2026, the interested party had close to 3 weeks to seek alternative legal representation; otherwise, he was aware of the hearing date of 9.7.2026, when his advocates were granted leave to cease acting. 44. The plainti deposes that the court also gave a time allocation for the hearing, in open court, and when the interested party was called, he conrmed his knowledge of the scheduled hearing date, and from the time of the call at 1 o’clock until 5 pm, he never made attempts to attend or send an advocate to come to represent him. 45. The plainti deposes that the interested party was also in breach of the consent order given on 11.11.2024 for discovery, going by item no. 4 in the bundle of documents by the plainti, and the several letters sent to his former lawyers seeking compliance. 46. The plainti deposes that the interested party has applied for and been granted adjournment of the hearing three times on 4.11.2024, 1.4.2025 and 3.11.2025; otherwise, the application for an amendment is another guise to cause the delay of the proceedings. 47. The plainti deposes that, being not a substantive party, the interested party cannot hold a defence and cannot le any pleadings that rightly belong to the principal parties, making the draft defence alien to civil proceedings. 48. The defendant supports the application through an adavit sworn by Naftali Kibera on 20.7.2026. 49. It is deposed that the interested party is not a peripheral observer in the suit but a former owner of the land which he sold and transferred to the defendant for valuable consideration; hence, key in the claim of title, the maker or custodian of the material transactional documents best placed to explain his acquisition, possession, sale and transfer of the property, the root of title is attacked by the plainti. 50. The defendant deposes that it will be a grave and manifest injustice for the court to determine the validity of the title that the interested party conveyed and make any nding on allegations directed at him without the interested party being allowed to place his full case before court, testify and test the evidence adduced against him. 51. The defendant deposes that the interested party made an application dated 15.3.2023 under Order 1 Rule 10 (2) Civil Procedure Rules, seeking to le a response to the suit not as a passive or peripheral participant, which he also supported by an adavit sworn on 6.4.2023 as per annexures marked NK (1) and (2), which the court, by consent of the parties, allowed on 6/3/2024, allowing the interested party to regularise his participation. 52. The defendant states that the plainti was a party to the consent and cannot now approbate and reprobate to say that the interested party cannot place a substantive response, primary documents, and an amended defence. 53. The defendant deposes that the labelling of the interested party as an interested party cannot defeat the substance of the joinder sought and consented to, nor make him a peripheral participant in the matter, yet his presence, evidence and transaction in issue place him at the centre of the dispute. 54. The defendant deposes that the interested party’s former advocate's application, as per the online record, shows it was to come up for hearing on 23/9/2026, as per annexure marked NK (3); hence he had a reasonable basis to understand that the questions of legal representation would be dealt with https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5588/eng@2026-09-16 5

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on that date. The defendant terms its hearing and determination on 9/7/2026 in his absence, and the commencement of the hearing immediately left him without legal representation to participate in the hearing on 9/7/2026 by cross-examining PW 1 and PW 2, yet the evidence touched on him directly. 55. The defendant deposes and supports the setting aside of the proceedings of 9/7/2026 since a fresh hearing will not prejudice the plainti; the two witnesses are available, the court can impose expedited timelines, and costs can compensate the plaintis, unlike the prejudice to be occasioned to the interested party, which is incurable. 56. The defendant deposes that the proposed amended defence is not an attempt to introduce a foreign disputant or transform the interested party into a new party, but aims to plead with precision the matter already in contest over the root of title, more so given the course taken during the evidence on 9/7/2026, so that the court can fully determine the question in controversy among all persons directly aected or involved in the transactions. 57. The defendant deposes that the plainti will have an occasion to le a consequential response and also cross-examine the interested party and his witnesses, which matter cannot outweigh the imperative of a fair determination of the suit on the merits. 58. The defendant deposes that for the plainti to hold an opposite view, the eect would be to prevent the court from receiving a case of a person who sold the land to him while permitting serious allegations concerning his title and conduct to remain before the court. 59. The defendant states that there was consent to join the interested party and that he had also said that he would take out third party notice had he not sought to join, hence the issue of indemnity does not arise. 60. On delay and discovery diculties, the defendant deposes that the same do not justify receiving substantive evidence of the interested party and that the issue of discovery can be cured by court direction instead of converting it into a denial of the right to be heard. 61. The defendant deposes that the application was led timeously after the new law rm was instructed by the interested party. 62. The defendant deposes that, notwithstanding separate objection and appellate rights relating to the manner in which PW 1 was declared a hostile witness and his evidence received advocate-client privilege, admissibility and compellability, he still supports the prayer for recall and leave to amend and to complete pre-trial compliance with fresh, strict and expedited directions at the hearing. 63. The interested party relies on written submissions dated 22/7/2026 raising four issues for the court's determination on whether the interested party is a substantive party to the suit. It is submitted that it is on record that he sought and was joined under Order 1 Rule 10 of the Civil Procedure Rules through a consent order and then directed to, and did, le a defence witness statement and documents in compliance with Order 11 of the Civil Procedure Rules. Reliance is placed on Trusted Society of Human Rights Alliance vs Mumo Matemu and others (2014) KESC 32 (KLR) and on Francis Kariuki Muruateru and another v Republic (2016) eKLR. 64. The interested party submits that the allegations of fraud against him place the matter beyond argument. Reliance is placed on Vijay Morjaria vs NM Darbar and Another (2000) eKLR and R.G. Patel v Lalji Makanji (1957) E. A 314, that the court cannot lawfully make ndings on fraud against the interested party without his participation in the suit and make substantive prayers to annul the root of his title. 65. The interested party submits that the plainti, having consented to the joinder, is barred by the doctrine of approbation and reprobation as held in Bia Tosha Distributors Ltd vs Kenya Breweries Ltd https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5588/eng@2026-09-16 6

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& others (2023) KESC 14 (KLR) and in Flora N. Wasike vs Destimo Wamboko (1988) eKLR on the eect of a consent order of 6/3/2024. 66. It is submitted that the interested party does not claim any expanded rights than pleaded, but the right to a fair hearing, just like the plainti on 9/7/2026 under Articles 27 and 50 of the Constitution. 67. The interested party submits that the extent of the participation of the interested party was long settled by the court on its own direction when he was granted leave to le pleadings and comply with Order 11 of the Civil Procedure Rules, and therefore what remains is honouring his participation at the hearing and not whether we participate. 68. The interested party submits that the proceedings of 9.7.2026 oended his rights under Article 50 (1) of the Constitution. Reliance is placed on Richard N. Leiyagu vs IEBC & others vs Macharia and others (2013) eKLR, Mbaki & others vs Macharia & another (2005) 2 E.A 206, Onyango Oloo vs AG (1986 – 1989) E.A Q 56. 69. The interested party submits that any attempt to trade his right to a hearing against expedition is against Article 24 of the Constitution, which is a non-derogable right, and in this case his procedural sins are not law; otherwise, delay, case management and discovery disputes are managed through directions and cannot be grounds for forfeiture of the hearing itself. 70. The interested party submits that measures against the constitutional standard, the events of 9.7.2026 constitute denial of the right to be heard; the application was denied on a date other than 23/9/2026, contrary to the court's own directions; he was stopped from legal representation with immediate eect; a short adjournment requested was denied; the main hearing proceeded for four hours without his participation, and each step compounded the last with no eective notice, no presentation, no participation or cross-examination. 71. The interested party submits that the telephone call aggravated rather than cured the breach, and the awareness that a matter is in court did not and was not, a notice of a hearing to be conducted against oneself or amount to an eective fair hearing. 72. The interested party submits that he did not act in deance of the court; he held an honest, reasonable, and his absence was attributable to the court record itself; the mistake is excusable in the fullest sense, and the court's discretion exists for such accidents but not to punish him. 73. The interested party submits that the irregularity has a further consequence to make the court ex debito justicia without inquiry, set aside the proceedings. 74. The interested party submits that receiving four hours of evidence against a party on a day when the question of legal representation stood xed for a future date was an irregularity, and instead the witnesses can be recalled for cross-examination. Reliance is placed on Shah vs Mbogo (1968) E. A 93, Patel vs East Africa Cargo Handling Services Ltd (1974) E.A 75. 75. The interested party submits that every factor herein favours the interested party, given the promptness of the ling of the application, the stage of the hearing, availability of the witnesses, prejudice and good faith. 76. The interested party submits that, should the court prefer a narrower course, section 146 (4) of the Evidence Act allows for the recall of PW 1 and PW 2 to cure the breach. 77. The interested party submits that he is not out to delay the hearing and the outstanding discovery; an adverse inference of costs cannot be a licence to receive evidence against an absent unrepresented party; https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5588/eng@2026-09-16 7

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otherwise, justice should be administered without undue regard to procedural technicalities, as held in Salat vs IEB and Others (2014) eKLR. 78. The interested party submits that what the replying adavit in truth defends is a procedural windfall and that a court of justice, receiving unchallenged evidence in the absence of a party implicated by it, should not lend its process to the preservation of such an advantage. 79. As to leave to amend, the interested party submits that under Order 8, rules 3 and 5 of the Civil Procedure Rules, amendment ought to be freely allowed at any stage where they facilitate the determination of the real question in controversy and occasions no injustice incapable of a remedy. In this case, it is submitted that the amended defence introduces no foreign controversy; it plead with particularly the invalidity of the root of the plainti's alleged title. Reliance is placed on Eastern Bakery vs Castelino (1958) E. A 461, Joseph Ochieng and others vs First National Bank of Chicago (1995) eKLR and Central Kenya Ltd vs Trust Bank Ltd (2000) 2 E.A 365. 80. The interested party submits that the court had xed the issue of legal representation more than two months later and therefore the breach admits only two remedies: setting aside the proceedings or, at the very least, recalling the witnesses and that the right to be heard is not a reward for procedural virtue but a condition for any judgment worth the name. 81. The plainti relies on written submissions and supplementary submissions dated 21.7.2026 and 29.7.2026, isolating three issues for the court's determination. It is submitted that there are no allegations against the interested party in the plaint dated 19.12.2022, by either name or implication, given that the plaint pleads or seeks no fraud or relief against him concerning the challenge to the title that he sold to the defendant. 82. On the contrary, the plainti submits that it is the defendant who has mentioned the interested party in his defence. 83. The plainti submits that parties are bound by the manner in which they wish to conduct their proceedings and, in this case, the application dated 15.3.2025, even if consented to, did not change the principal place, the pedestal and the capacity of the interested party who thereafter led a third party defence dated 11/12/2024. 84. The plainti submits that parties cannot litigate outside the law; otherwise, its interpretation of the role and the impact of an interested party has been subject to litigation in Mbaazi Avenue Residents Association and Another v Matricone Home (2026) KESC 30 and in Samuel Kamau Macharia versus DPP (2022) KESC 61 (KLR). 85. The plainti submits that the interested party has failed to address the specic issues on his conduct as raised in the supporting adavit of his former lawyers on record sworn on 12.7.2026 regarding the knowledge of the hearing on 15/6/2026 and on 97/2026, to which he failed to contact his lawyers then on record, who then were directed to serve the application by 15/6/2026, which date the matter was not listed. 86. The plainti submits that the adavit of service by the former lawyers does not indicate that the application was to come up for hearing on 23/9/2026, and the interested party was aware otherwise; he had been served three weeks before the hearing on 9/7/2026. 87. The plainti submits that the reopening of the suit will prejudice it. Reliance is placed on Civicon Ltd vs Kivuwatt Ltd (2014) eKLR. 88. The plainti submits that the interested party should not be allowed to reopen closed pleadings when he only led a third-party defence, with no third-party proceedings, contribution or indemnity sought https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5588/eng@2026-09-16 8

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or direction or relief or claim of any questions to be settled between the defendant and the interested party. 89. The plainti submits that the interested party cannot metamorphose into a third party when none of the principal parties has sought contribution, indemnity or relief against him. 90. The plainti submits that the interested party should not be allowed to reopen the pleadings through an amendment a sit is against the principles applicable in view of the notice dated 13/5/2024, witness statement and bundle of documents, further witness statements and a supplementary bundle dated 8/11/2024 and a consent for inspection of the originals following closure of pleadings. 91. The plainti submits that the unexplained delay of 19 months is inordinate; he is not a principal party facing adverse orders or relief or claim; the draft seeking to introduce new causes of action on adverse possession and time limitation is a back-way manner, and more so when no judgment on any legal right or liability is sought against him, making him bear any burden of proof under Section 107 of the Evidence Act. 92. The plainti submits that the interested party has not demonstrated sucient grounds to set aside the proceedings of 9/7/2026, which discretion belongs to the court based on sound principles, as held in Frances Arecho Odero vs Amolo & Kibanya Advocates (20206) KEHC 9956 (KLR). 93. The defendant relies on written submissions dated 22/7/2026 raising four issues for the court's determination. It is submitted that, from the electronic record, the application to cease acting comes for hearing on 23/9/2026, but was allowed on 9/7/2026 in the absence of the interested party, leaving him without legal representation during the testimony of PW 1 and PW 2, contrary to the rules of fair trial. 94. The defendant submits that the right to be heard is not satised by physical or electronic awareness that a matter is in court but requires a meaningful opportunity to know the case being advanced, prepare a response, instruct counsel, challenge admissibility and test evidence. 95. The defendant submits that the making of a telephone call only conrmed that the interested party was absent and unrepresented while evidence aecting him was taken. Reliance is placed on NBK Ltd vs AG and another (2024) KEHC (KLR); S.M vs H.E, Civil Appeal No. 125 of 2018; Junk vs MWM and another (2015) KECA 524 (KLR); Onyango Oloo vs AG (1986 – 1989) E. A 456, and Mbaki & another vs Macharia & another (2005) 2 E.A (206). 96. The defendant distinguishes the authorities relied upon by the plainti on delay and prior discovery dispute, stating that such inactions, if any, cannot be a substitute for the right to a fair hearing and legal representation. 97. On recall of witnesses, the defendant submits that the fresh hearing will restore equality without fragmenting the record, as is allowed under section 146 (4) of the Evidence Act; otherwise, it will not prejudice the plainti in any manner. 98. On leave to amend, the defendant submits that the proposed amendment is necessary and not prejudicial, but will clarify the issues before the court. Reliance is placed on Central Kenya Ltd vs Trust Bank Ltd and others (2000) KECA (367) (KLR), Makindu Motors Ltd vs Subati Group Ltd and another (2023) KELLC 2150 5 (KLR), Rose Kandie and another vs Esther J. Kiplangat (2016) KECA 602 (KLR), Eastern Bakery vs Castellino (1958) E.A 461. 99. On joinder of an interested party, it is submitted that the interested party is not a mere peripheral party in the suit, after consent to come on board and the court’s direction to le responses and to comply with Order 11 of the Civil Procedure Rules. Reliance is placed on Departed Asians Property Custodian https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5588/eng@2026-09-16 9

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Board vs Jafer Brothers Ltd (1999) 1 E. A SS as applied in Haji & another vs Kazungu & 49 others Koi and 172 others (2023) KEELC 18883 (KLR), Civicon Ltd vs Kivuwatt & others (2015) KECA 588 (KLR). 100. The defendant submits that the balance of justice favours a fresh and expedited hearing without the court overlooking case management, given the promptness, availability of the two witnesses, curability of the defect or breach and the comparative prejudice and the need to place all the real issues in controversy before the court for determination. 101. The defendant submits that a fair judgment requires a fair record and the need not to delay or permit a litigant to restart proceedings at whim, but to protect the legitimacy of its eventual judgment by allowing the participation of the aected interested party to state his case proportionately and modestly, through allowing a fresh hearing. 102. The defendant submits that justice is not measured only by the speed with which a record is completed, but by whether the record deserves to sustain a judgment. 103. The court has carefully gone through the court le, the application by the interested party, the replying adavits and the written submissions. 104. Before delving into the issues, when the matter came up before the Deputy Registrar on 20.4.2026, it was indicated that the then presiding judge was on transfer, so fresh hearing dates were allocated for 10/6/2026 by the Deputy Registrar. It appears that on 16/6/2026 the matter went before the Deputy Registrar, who conrmed a hearing for 9.7.2026 before this court. 105. The court record does not indicate any proceedings that took place on 16/6/2026 regarding an application to cease acting, or a caption that the le had a pending application with another hearing date allocated by Hon. Lady Justice T. Murigi. 106. Indeed, when the parties appeared before the court on 9.7.2026, it was not brought to the attention of the court that there was another date specically given for the hearing of the application or that the suit had been allocated to another presiding judge. There was therefore nothing on record staying the hearing of the matter in view of a pending application. Equally, the order dated 16.6.2026 was not brought to the attention of the court by either the defendant or the interested party, nor were they aware of the same. 107. The order was only brought to the attention of the court through the application dated 15/7/2026, which now shows that there were already directions for service, xing of response, and a hearing inter partes on 23/9/2026. 108. Be that as it may, the interested party, instead of blaming his former lawyers on record who opted to have the application dealt with before the court could proceed with the hearing, now terms this as a fundamental error on the part of the court, which denied him an opportunity to defend himself. The interested party is silent on the contents of the supporting adavit by his former lawyers regarding lack of instructions leading to the action for them to cease acting before the hearing could commence. The interested party does not deny service of the application and of the hearing date for the main suit. His counsel on record and the defendant are in unison that awareness through the court was inconsequential, late or irrelevant. 109. The interested party wants the court to nd that he was greatly prejudiced and that the court should exdebito justicaes vacate all the proceedings of 17th July 2026, including reinstating the application to cease acting by his former lawyers. In other words, the court is asked to overlook everything and unwind the clock even after there is evidence that his former lawyers were entitled to and justied in ceasing https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5588/eng@2026-09-16 10

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to cease acting due to the conduct of the interested party, which he does not dispute. This begs the question whether a law rm which has voluntarily, with the knowledge and notice to a party, ceased acting can be ordered to remain on record post withdrawal from acting for a party. It is on record that the interested party was notied of the intention to cease acting but did not dispute it earlier or on the hearing date. It is not on record that after the interested party was called, he admitted knowledge of the application at the hearing date. The interested party did not seek another date to instruct a new counsel. 110. In the supporting adavit, the interested party does not state what stopped him from doing so or attending the court in person to seek more time on that day. 111. From the court record, this is not the rst time that the interested party is seeking a stay of the proceedings. In the application dated 15/3/2023, the interested party had sought a stay until his application to join the suit was determined. The court notes that the basis of the joinder was to respond to the defence by the defence dated 24/5/2023, which is the one that had specically made allegations against the interested party. The court has looked carefully at the primary pleading by the plainti. The plaint dated 19/12/2022 does not raise any claim or seek any relief against the interested party at all. Instead, it is the defendant who has, in the defence, roped in the interested party to the claim. 112. The court record shows that the application for joinder which the interested party unilaterally led was allowed on 6/3/2024 alongside the application dated 19/12/2022, in the presence of Mr Okiko, advocate for the defendant, Kethi Kilonzo for the plainti and Miss Masenfe for the interested party. 113. The interested party was then given 15 days to le an appearance and comply with Order 11 of the Civil Procedure Rules. It is in that context that on 19/6/2024, the parties were ordered to le paginated bundles of trial before the hearing dates xed by consent for 4th and 11th November 2024 in open court. 114. After non -compliance or late compliance, the suit was adjourned on 4/11/2024 and 11/11/2024, including to allow for inspection of documents supplied by the interested party, who had led and served them late at the eve of the hearing. 115. The adjournment led to two hearing dates for 1/4/2025 and 7/4/2025. When the matter came up on 1/4/2025, the interested party's advocate sought an adjournment for the interested party being unwell and for lack of communication for two weeks. 116. A similar adjournment was also given on 3/11/2025 at the request of the defendant, who was said to be bereaved and the advocate for the non-availability of the interested party's counsel, leading to the hearing dates of 27/4/2026 and 20/4/2026, when the matter could not proceed due to the transfer of the then presiding judge. 117. It is the interested party who, despite seeking to join the suit as an interested party, who chose to le a third-party defence dated 13/5/2025, despite leave being granted on 6/3/2024 to comply within 15 days. No leave was sought or obtained to le the document late and in another capacity of a third party, as was the case in the application for joinder. In that context, therefore, the capacity in which the interested party is now seeking to amend the said pleading is a critical aspect, as submitted by the plainti. 118. The intended change in the description of the party, obvious from the record, is curious: for close to two years, the interested party cannot now purport to say that he, having sought to join as an interested party, forgot to describe himself as such; after the leave became spent, he led a pleading describing himself otherwise but now wants to revert to the initial capacity in which he had sought the leave to join the suit. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5588/eng@2026-09-16 11

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119. The causal glance of the intended amendment is that the interested party is strangely silent on the defence which essentially is the one impleading him. In the said intended amendment, the interested party now pleads fraud, illegality and invalidity of the plainti’s title. 120. Amendments are readily allowed by the court. The principal object of permitting amendment of pleadings is to obtain a proper ventilation of the dispute between the parties, to determine the real issues between them so that justice may be done, going by the case law of Eastern Bakery vs Castellino (1958) E. A 461, Joseph Ochieng and others vs First National Bank of Chicago (1995) eKLR and in Central (K) Ltd vs Trust Bank Ltd (2000) 2 E.A 365. 121. Courts have the discretion not to allow an amendment if it is not made in good faith or if it is done with the sole purpose of prejudicing the opposite party, or in cases where obvious injustice to the opposite party would result if the amendment is allowed. 122. In Njiri and Another vs Wangui and others (civil Application No. E018 of 2026 (2026) KECA 789 (KLR) 22nd April 2026 (ruling), the court said that the decision whether to grant or refuse an application to amend a pleading rests in the discretion of the court, and the approach has always been to allow it unless made in mala des or it will prejudice the other party; otherwise, the realisation of justice between the parties is not to be obstructed by a too rigid consideration. 123. The court said that the object of pleading is to dene the issues, and parties will be kept strictly to their pleas where any departure would cause prejudice or would prevent full inquiry and that the court has the greatest latitude in granting amendments as its object is to do justice to the parties. 124. In Ochieng and Others v First National Bank of Chicago civil appeal 147 of 1991, the court set out the principles that an amendment should be timeously applied for the purpose is to determine the true substantive merits of the case; late amendment may be allowed if made in good faith and a party will not be allowed to reframe his case or his claim if, by an amendment, it would deprive the defendant of the right to rely on the Limitation of Actions Act, subject to the court’s discretion to allow it notwithstanding the limitation period. 125. In Njiri and Another v Wangui (supra), the court said that a litigant must be given leave to amend unless it is absolutely clear that the deciencies of the pleading cannot be cured by the amendment. 126. In exercising the discretion, the court in Kanawal Sarjit Singh Dhim vs Keshavj Jivraj Shah (2010) eKLR said that the discretion is not based on whim or caprice but on judicial reasons. 127. In Eastern Bakery vs Castellino (1958) E. A 46, the court said that amendments sought before hearing must be readily allowed if they will not occasion injustice to the opposite side that cannot be compensated by way of costs. 128. In Stephen Maina Githiga & others vs Kiru Tea Factory Co. Ltd (2019) eKLR, the court said that amendments sought to dene the real question in controversy could be allowed if the respondent will still have an opportunity to respond to the amendment, thereby addressing any potential prejudice that may be suered. 129. In Coee Board of Kenya vs Thika Coee Mills Ltd and others (2014) KECA 409 (KLR), the court cited Mulla, the Code of Civil Procedure, 18th Ed. Vol. 2 page 1751 – that the proposed amendment should not alter and be a substitute of the cause of action based on which the original list was raised it should not be allowed if will cause prejudice to the opposite party, amendment of claim or relied barred by time should not be allowed, since no party should suer an account of the technicalities of law, error or mistake which is not fraudulent should not be made the ground for rejecting an amendment and that https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5588/eng@2026-09-16 12

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inconsistent and contradictory allegations in negation to the admitted position of faith or mutually destructive allegations of facts would not be allowed to be incorporated by means of an amendment. 130. In Central Bank Ltd vs Trust Bank (2010) 2 EA 365, cited with approval in Andrew Ouko vs KCB and others (2014) eKLR, the overriding consideration is whether the amendments are necessary for the just determination of the controversy between the parties; delay is not a ground to refuse amendment unless it has occasioned prejudice to the opposite party beyond monetary compensation, or there is a new or inconsistent cause of action to delay a vested interest or right accrued to the respondents. 131. In James Ochieng Oduel t/a Ocheing Oduel and Co. Advocates vs Richard Kuloba (2008) eKLR, the court said an amendment resulting in the defeat of a defence of limitation of time would generally not be allowed unless in exceptional or peculiar circumstances. 132. In Mbuthi vs Karanja, Civil Application E347 of 2023, the court cited Kyalo vs Bayusuf Ltd, Civil Appeal No. 38 of 1983, that an application for amendment should only be allowed if led timeously, otherwise it will amount to abuse of court process and which cited Halsbury’s Laws of England 4th edition vol. 36 (1) paragraph 76 that an amendment must be made in good faith and will not be allowed at a late stage if it is intended to advance a new ground of defence or to repair an omission due to negligence or carelessness if it will cause an injustice the other side. 133. In Elijah K. Arap Bii vs KCB Ltd (2013) eKLR, the court said that it is rational for the judge to reject the leave to amend. 134. In Kassam v Bank of Baroda (K) Ltd (2003) eKLR, the court said that late applications for leave are liable to be rejected if there has been unexplained delay; courts can, as held in Joseph Ochieng and others vs First National Bank of Chicago (supra), allow an amendment seeking to introduce a new case or new grounds of defence so long as it will not change the action into one of a substantially dierent character which could more conveniently be made the subject of a fresh action. 135. In Family Bank Ltd v Step Up Holdings Ltd (Civil Appeal E004 of 2022 (2026) KECA 1235 KLR (3rd July 2026) Judgment, the trial court had allowed an amendment said to be prejudicial by invoking sympathy and pity instead of nding the claim statute-barred or altering the claim contrary to the law on amendments. 136. The court held that amendments can be allowed under Order 8 Rule 3 (2) & (3) of the Civil Procedure Rules even after the relevant period of limitation has lapsed; it is just to do so even where it would add or substitute a new cause of action so long as it arises from the same facts as the cause of action in which the relief has been sought. 137. Guided by the above binding principles and case law, the question to ask is whether the third party defence is capable of amendment and whether the interested party seeks to enforce substantially the same right or defence as it did in the original pleading or whether the proposed amendment arises on the same bundle of foundational facts, or whether he is shifting the legal nomenclature or clarifying the details. 138. The court has compared the plaint before it, the statement of defence, the third party defence and the proposed amended defence. The interested party does not admit that he led the so-called third party defence late, wrongly and without leave of court. The interested party does not explain why he sought leave to join as an interested party but led a third party defence. The interested party does not explain why he is seeking leave late. 139. The interested party has not addressed, by way of a further adavit, the concerns of the plainti on lateness, defectiveness, change of capacity to appear in this suit, the irreversible prejudice to be caused https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5588/eng@2026-09-16 13

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by the proposed change, mala des, inordinate delay of the matter and whether the amendment will fundamentally alter the original nature and character of the suit, especially where the plainti does not raise any specic claim or relief against the interested party. 140. The interested party has not raised any exceptional circumstances as to why he did not le appropriate pleadings, misdescribed himself in the 1st instance, seeking to raise a cause of action regarding the title held by the plainti past the limitation period. 141. Amendments must advance the ends of justice. They must not be allowed if there is mala des or it will prejudice the other party. As held in Family Bank Ltd vs Step Up Holdings (supra), a litigant must be given leave to amend his or her pleadings unless it is clear that the deciencies of the pleading cannot be cured by the amendment. 142. In David Sironga Ole Tunkai vs Francis Arap Muge and others (2014) eKLR, the court said that parties are the ones who set the agenda of trial through pleadings, and the purpose of the rules of pleadings is to ensure parties succinctly state the issues to avoid delay or expenses at the trial. In IEBC and Others v Mutinda Mule & Others (014) eKLR. The court said that parties are bound by their pleadings. It is the interested parties who led the third-party defence while fully aware of the capacity in which they joined the suit as per the leave sought. For unknown reasons, he chose to depart from the leave sought and the conditions set. 143. Parties have the freedom to formulate their cases subject to the basic rules of pleadings. In Raila Odinga & another vs IEBC & others (2017) eKLR, the court said that pleadings enshrine that each side is fully alive to the questions that are likely to be raised by the opposite party and respond to them. 144. Order 2 Rule 10 of the Civil Procedure Rules denes what must be specically pleaded in any claim, defence or other matter; travelling outside the pleadings is not permitted. 145. Looking at the proposed amendments, there is more to it than what the interested party has disclosed in his application and the supporting adavit. It aims to cure serious deciencies out of carelessness and negligence. It cannot be said to be made in good faith, or without prejudice or injustice to the plaintis' accrued legal rights, as was held in Kenya Hotels Ltd vs Oriental Commercial Bank Ltd (2018) eKLR and in John Gakuo and another vs County Government of Nairobi and another (2017) eKLR and in Patrol (K) Ltd vs Trust Bank Ltd and others (2000) eKLR. 146. To determine whether an application is made in good faith the court applies an objective test for honesty based on the standard of ordinary decent people as was held recently in Saxon Words Investments Ltd (2026) UK SC 21 change in description identity of the capacity of the interested party from a third party and new issues raised which do not ow from the plaint and failure to specically address the content of the defence what is the primary pleading relating to the role and participation of the interested party in the transaction put documents in the mind of the court on the bonades of the applicant, lack of candor and regard in court orders. 147. Sucient cause why the interested party led a third party defence and now seeks to cure it through belated leave for amendments must be rational, plausible, logical, convincing, reasonable and truthful. Leaving unexplained gaps in the sequence of events in the mind of the court as to bona des, as held in the Hon. AG vs LSK & another, Civil Application No. 133 of 2011, is what the interested party has done. 148. The interested party wants the court to overlook such inconsistencies in his explanation, contrary to sound principles for the exercise of discretion and fair hearing as held in Evans Odhiambo Kidero others vs F.N Waititu & others (2014) eKLR, which includes also procedural fairness, which entails being given an opportunity which is reasonable to be heard. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5588/eng@2026-09-16 14

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149. The applicant was allowed to le his response within 15 days. He chose to do so after almost a year. After almost another year, he now realises that he led a wrong or a decient pleading in departure from what he had been granted leave to le. 150. The law is not that a party must be heard in every litigation. As held in United Insurance Co. of (K) Ltd vs Ramzan Abdul Dhanji, Civil Application No. NRB 179 of 1998, once an opportunity is given and not utilized then the only point on which the parties not utilizing the opportunity can be heard is why he did not utilize the opportunity coming to whether or not the court made an error when it dealt with the application to cease acting on 9.7.2026 yet it had another date hence condemned the if unheard, an error or omission on the part of the court was described in NBK vs Ndunga Ajan (1997) eKLR As self-evident and should not require an elaborate argument to be established. 151. The narrow scope of review, as held in Benjoh Amalgamated Ltd & another vs KCB Ltd (2014) eKLR, is not to relitigate matters already determined. 152. In Nyamongo & Nyamongo Advocates vs Kago (2021) 1 E. A 173, the court said that an error on the face is to be determined judicially on the facts of each case. 153. In Republic vs Advocates Disciplinary Tribunal Ex parte Apollo Mboya (2019) eKLR, the court said that a mistake or an error apparent on the face of the record means one that is visible. 154. The court record indicates that this court became seized of the matter on 9.7.2026 following directions by the Deputy Registrar on 16.6.2026. 155. It is trite law that review is not an appeal in disguise and cannot be used to re-open matters on the merits simply because a party is dissatised with the outcome. Misconstruing a statute or reaching an erroneous conclusion of law is not a ground for review, as was held in NBK Ltd vs Ndungu Njau (1997) eKLR and in Mugodi vs I.C.D.C. and another (2006) 1 E.A 243. 156. In this matter, the interested party was duly served with both the hearing notice for the main suit and the application to withdraw from acting. When the former lawyer appeared before the court in the presence of the defendants and the plainti’s lawyer, none of them disclosed to the court that the application to withdraw from acting had a dierent date than 9.7.2026. 157. In Nyongo and others vs AG (Civil Appeal 250 of 2019 (2026) KECA 200 (KLR) (6th February 2026 (Judgment) the court observed that material non-disclosure could, in appropriate cases, fall within the residual category of any other sucient reason. The court said to determine the same, the factual premise of the non-disclosure has to be established and the alleged non-disclosure must be of such a character as to justify the re-opening of the court’s concluded determination. 158. The court went on to say that review jurisdiction cannot be properly exercised on the basis that something may be the case and the burden is on the applicant to demonstrate with cogent material that the statutory threshold had been met. 159. The court said that a party cannot withhold or fail to deploy facts within his knowledge in opposition to an application, suer an adverse ruling, and later rebrand those same facts as newly discovered to obtain a second bit of the cherry through review. 160. Learned counsel Mr Maina, Kilonzo and Mr Makori for the KP and the defendant did not disclose to the court that the application to cease acting had a dierent date other than 7.7.2026. 161. Instead, the defendant's counsel told the court that they were not opposed to the application to cease acting. Indeed, as a matter of fact, it is Mr Makori who supplied the cellphone number of the interested https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5588/eng@2026-09-16 15

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party, tried to call him, and he did not pick up his call, and thereafter supplied the number to the court assistant. 162. There was already on record an adavit of service showing that the application had been served upon the interested party by his former lawyers. Equally, the interested party's former lawyer had sworn on oath that he had notied his client of the hearing date for 16.6.2026 and 9.7.2026. 163. The applicant says that he was deprived of the right to legal representation by the court allowing the application to cease acting on the hearing date of the main suit instead of the date that had been allocated in the C.T.S. 164. The interested party terms the order allowing the application as fatal and amounting to denial of his constitutional rights to legal representation and the right to participate in the hearing of the matter. 165. The order alleged to have been in existence had not been placed on the court le. It was also not disclosed to the court. 166. In Paul Odhiambo Onyango and another vs Klau Works Ltd (2020) eKLR, the court held that failure to take into account submissions which were not on the court record was not an error apparent on the face of the record. 167. In Nathan Chesang Moson vs Grand Creek LLC & another ( Civil APPEAL No. 397 of 2018 ( 2020) KECA 204 (KLR), Judgment delivered on 6.11.2020, the court held that failure to refer to submissions by either party did not mean that the court did not consider them. 168. The phrase “on the face of the record” means that the document said to constitute the face of the record must actually be in the court record. 169. There is no evidence that a hearing notice was extracted on 16.6.2026 and served upon the plainti and the defendant by the interested party showing that the application would be heard on 22/9/2026 and a return of service led to that eect. 170. Indeed, it cannot be assumed that the interested party chose to give preference to the hearing date of his application and not the hearing of the main suit. The order of things is that the rst in time prevails. In a court of equity. 171. In Muyodi vs ICDC and another (supra), the court held that if a view adopted by the court in the original record is a possible one, it cannot be an error or wrong view to amount to a ground of review, though it may be one of appeal. 172. The question which the interested party has failed to answer is whether he had responded to the application to cease acting in the rst instance and, number two, knowing the implications of not attending the hearing date, previously given or taken by consent and brought to his attention, and the sucient cause why he would not at all attend the hearing and seek an adjournment to secure another law rm of his choice to continue representing him. 173. It is the interested parties’ lawyers who, while fully aware of the implication of the consequences who chose rightly or otherwise to have his application heard and determined before the hearing would proceed. It is not the business of the court to order lawyers to continue representing a litigant where the lawyer has no instructions. 174. Termination of that relationship may take the form of a notice to withdraw from acting. It has to be duly served upon the litigant by the outgoing lawyer or law rm. A litigant has a right to hire and https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5588/eng@2026-09-16 16

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re his client. The interested party was given an opportunity by his former law rm to respond to the application and to attend court at the main hearing. 175. The interested party cannot turn around and say that he was denied and was deprived of legal representation under Article 50 of the Constitution by the court, yet it is the former lawyer or law rm who moved the court and asked to be discharged from the matter on the hearing date. 176. All that the court was required to do was to conrm if the client had been served with the application and was aware of the hearing date of the main suit. A court can only remove a client's legal representation if there is a need to protect the administration of justice. In Murgo and Murgo vs Kenya Pipeline Co. Ltd (2021) eKLR and King Woollen Mills Ltd and another vs Kaplan and Statton Advocates (1990 – 1994) E. A 244 the court said that whereas a choice of counsel is an entitlement of a party, such counsel must always bear in mind that he or she becomes an ocer of the court and that, as such, owes an allegiance to the cause of justice and truth rather than serving the interest of the client. 177. Courts like nature must not sit in vain. A mootness arises where there is no longer an actual controversy between the parties to a court case or where any ruling by the court will have no practical impact, as was held in Political Parties Forum Coalition and others vs Registrar of Political Parties and others (2016) eKLR. 178. The interested party is asking the court to set aside the order allowing the application against him, which his former law rm had sought leave to cease acting before the main hearing on 9.7.2026. 179. A suit or an application is academic where it is merely theoretical and makes empty sound and has no practical utilitarian value to the party even if judgment is given in his favour. The interested party does not say that he had mended his relationship with the former law rm or had secured the services of another lawyer to represent him at the hearing. 180. Even if the interested party had led a response to the application, the court still could not have ordered the former law rm to continue representing him at the hearing. 181. Already the interested party has led a notice of appointment by advocates to replace the former law rm. Therefore, sustaining the application to be heard on 23.9.2026 would amount to an academic exercise, as the interested party would be entitled to no relief save to delay or derail the hearing of the matter. It is only the interested party who, if he had appeared in person, would have sought the postponement of the hearing of the case to secure another lawyer. 182. Instead, he chose not to attend or seek someone to make such an application. There is no evidence that the 1st defendant's counsel or record placed himself in such a position and was denied such an opportunity. The court, in the circumstances, nds no basis to vacate the order made on 9.7.2026 allowing the application to cease acting. 183. As to whether the proceedings of 9.7.2026 ought to be set aside and if the interested party was condemned unheard, from the record as illustrated hereinabove, the date for 9.7.2026 was taken on 20.4.2026 in the presence of the interested party's advocates then on record and later conrmed on 16.6.2026. 184. In the supporting adavit to the application to cease acting, Peter Maina, advocate, swears that the interested party had been made aware of the scheduled hearing dates of 16.6.2026 and 9.7.2026 and had failed to give sucient instructions, attend the hearing or communicate, making it untenable for the law rm to apply to cease acting for the interested party. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5588/eng@2026-09-16 17

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185. The interested party, in his adavit sworn on 15.7.2026, completely fails to explain why, despite such knowledge chose not to attend the hearing and assumed that there would be no consequences for nonattendance. 186. The court nds no basis for him to say that he had an honest and reasonable understanding that the matter would simply be adjourned. 187. The applicant does not say where, how or the sucient reason why he did not attend court despite the court going out of the way to conduct him. Written submissions cannot replace pleadings or amount to evidence. Learned counsel Dr Kinyanjui has extensively submitted on matters whose facts are not deposed by the deponent. 188. The sword of justice cuts both ways. A party cannot approbate and reprobate at the same time. He cannot choose what to call an irregularity but fail to say why he did not attend court. Orders 12 & 18 of the Civil Procedure Rules relate to non-appearance of parties; sucient cause for non-attendance must be rational, reasonable, plausible, logical and credible. 189. Unfortunately, the interested party has submitted that the court, by causing him to be called, aggravated rather than cured the breach or that awareness that a matter is in court, whose date he had taken through his counsel, was not adequate notice. 190. Section 1A and 3A of the Civil Procedure Act and Article 159 of the Constitution enjoin parties to assist a court in expeditious disposal of suits. The discretion to set aside ex parte proceedings or decision, as held in Shah vs Mbogo and Another (1967) E. A 116 is to be exercised to avoid injustice or hardship but not to assist a person who had deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice. 191. In Wachira Karani vs Bildad Wachira (2016) eKLR, the court said that sucient cause is the cause for which the defendant would not be blamed for his absence and that it is a question of fact what prevented him from attending court. 192. Mr Maina, advocate for the interested party, is on record in open court and in an adavit on oath that the interested party was aware of the hearing date. So the court nds no sucient cause shown why the interested party did not avail himself before court, whether physically or electronically, to now turn around and allege denial of constitutional rights in the circumstances obtaining. 193. Further, it has been submitted that the court declined a request for adjournment. It is apparent from the court record that the averments on oath by the interested party and the written submissions herein are not supported by any material. 194. The court says so given that, had the incoming lawyers for the interested party perused the court le on the history of this matter, they would perhaps have approached the instant application dierently in submitting that the court traded the hearing rights of the interested party against expeditious hearing of the matter to submit procedural and that sins are not law; case management and discovery disputes are to be managed through directions and cannot be ground for forfeiture of the hearing itself. 195. It is not the court that stripped the interested party of his right to be heard and participate in the hearing. He chose not to attend while aware the matter was due for hearing. The notice for the hearing had been communicated to him by his lawyers then on record before 16.6.2026. 196. In CMC Holdings Ltd vs James Mumo Nzioka (2004) KLR 173, the court said that in deciding whether or not to set aside an ex parte order, it is meant to ensure that a litigant does not suer injustice or hardship as a result of an excusable mistake or error unless there is fraud or an intention to overreach. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5588/eng@2026-09-16 18

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197. In this matter, the interested party had sought an adjournment previously. He did not show up on 16.6.2026. He was aware that his lawyers were intending to withdraw from acting for him as early as 16.6.2026. He did not make arrangements to attend court on 9.7.2026 either through an alternative law rm or attend court in person, to seek an adjournment. He instead left it to the court to proceed with the matter. 198. The interested party cannot be heard to say that he was denied an opportunity to be heard when, from 1 pm to 5 pm made no eorts to appear in court either physically or electronically, despite being told by his former lawyers and the court that the matter was slated for hearing, and took the interested party up to 15.7.2026 to move the court, which was almost the next hearing date. 199. Article 159 of the Constitution, as held in Salat vs IEBC & others (2014) eKLR, is not a panacea for all procedural technicalities. The court, in the circumstances, nds no basis to set aside the proceedings. 200. In the interest of justice, however allows for the recall of PW 1 and PW 2 for cross-examination purposes by the interested party once the application dated 12.6.2026 is heard and determined on 23.9.2026. 201. Throw away costs for the witnesses and the plainti, and dates for lawyers to be met by the interested parties. 202. Orders accordingly. 203. Further hearing on 16 . 12.2026. DATED, SIGNED AND DELIVERED THIS 16TH SEPTEMBER 2026 HON. JUSTICE C.K NZILI JUDGE In the presence of: Mr. Ndolo for the Respondent. Dr.Kinyua for the Interested Party. Mr. Agonga for Mr.Makori for the defendant . C/A: Julius https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5588/eng@2026-09-16 19

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