High Court 1442 of 2026

the hearing and determination of the marriage and matrimonial property dispute between the parties and the children’s matter be referred to children’s Court. 6. 2. That the cost of this application be provided for. It is supported by the grounds appearing on the face of the Application as well as the Supporting Affidavit sworn on 29/09/2025, by the Applicant. The Applicants’ case. 3. The Applicant has listed 29 grounds on the face of the Application and an Affidavit of 30 paragraphs. However, the gist of his case is that the trial Court issued exparte orders on a number of Applications in respect of which he had not been notified of the hearing ; that the orders were substantial and final. He complains therefore of being denied the right to be heard. 4. He further states that one of the interim orders directed him to pay maintenance for his children at the rate of Ksh. 30,000 monthly and Ksh. 47,000 on account of school fees. That was on 18 /9/ 2025. Then on 15/9/2025 the Hon. Kadhi issued another ex-parte order allowing for his eviction from his matrimonial home. The eviction order was enforced on 19/09/2025. He states that the said order was also issued ex-parte. 5. The Applicant further states that the Application dated 18/08/2025 , which sought for maintenance was filed without the original suit or of petition. He also stands the risk of being jailed for failure to comply with the eviction orders. 6. The Applicant argues that the conduct of the trial court has occasioned serious constitutional breaches and violations of the constitutional rights ,as substantive orders with finality, were issued against him without being accorded a right to fair hearing. Respondents’ case 7. In her Replying Affidavit dated 09/10/2025 ,the Respondent denies that the Applicant is under any risk of being jailed as the matrimonial Cause, being E015/2015 is yet to be concluded. On the eviction orders, it is stated that the Applicant left the Matrimonial home on his volition, even before the eviction order was enforced. 8. The Respondent further argues that if the Applicant was dissatisfied with the orders, he ought to have sought to set them aside at the trial court or appeal to this court. Determination 9. The Applicant has premised his Application on Article 50 and 165 (6) and 7 of the constitution, Section 1 A, 1B ,3, and 3 A of the Civil Procedure Act and Order 45 of the Civil Procedure Rules. Article 50. 10. Article 165 (6) of the constitution bestows upon the high court the jurisdiction to supervise the Subordinate courts and 165 (7) empowers the High Court to call for records of such Subordinate Courts for purposes of making such orders as may be appropriate, so as to ensure fair Administration of Justice. 11. Order 45 of the Civil procedure Rules(CPR) sets out the procedure on review; Sections 1A of the civil procedure Act (CPA) sets out the objects of the civil procedure Act , which include expeditious disposal of suits; section 1B of CPA is on the role of the court; section 3 is the fall back section where there is no express provision in the rules for approaching the court, and 3A gives the court inherent jurisdiction to make such orders as may be necessary to serve the ends of justice. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1442/eng@2026-02-12 2

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12. The gist of the Applicants’ complaint is that final orders were issued exparte. He was therefore denied the chance to be heard. The first order required him to meet the cost of maintenance of his children and the second one was an order of his eviction from the matrimonial home. The orders have caused him a lot of grief, he states. In the circumstances he seeks to set aside the said orders. 13. I have anxiously considered this Application. In seeking to set aside the orders of the trial court, the Applicant decided to file a miscellaneous Application, and the prayers sought if granted will effectively set aside the orders of the trial court. 14. The pertinent question is whether this court has been moved appropriately? What recourse does a party have when aggrieved by exparte orders of a trial court? 15. Order 51 Rule 15 of CPR gives a right to the party aggrieved by an exparte order to move to the same court and seek to have the exparte order set aside; Under order 43 of the rules the Applicant also had the right of Appeal to the high court; There was also the option of applying for a review under 0rder45 of the same Rules, before the same court. In this regard I have observed that the Applicant has based the present Application on interalia, order 45 of the Rules. However, review Application must be taken back to the court which made the impugned order or decree (see Order 45 rule 1). 16. Further I have also noted that the Applicant has invoked Article 50 of the constitution, and faults the trial court for infringement of his constitutional rights. If that was what he considered to be the case then, the Applicant ought to have approached this court by way of judicial review ,pursuant to Article 23(3) of the constitution. 17. Finally, I have observed that the Applicant has relied on Article 165(6) and (7) of the constitution. The above Article of the constitution confer supervisory jurisdiction of the lower courts to the high court. However, I take the view that, that is merely what it is -: conferment of jurisdiction. The procedure of moving the court is in the various statutes or rules. 18. A miscellaneous Application, in the circumstances that gave rise to this Application was ill- advised. That was not the correct way to move the court. This is a substantial defect in procedure that cannot be ignored. 19. In this regard, Am persuaded by the court’s decision in the case of Chelashaw vs A.G & Ano [2015] 1 EA 133 where it was held that without rules of procedure and practice the enforcement of the law and administration of justice would be chaotic and their non-adherence would lead to uncertainty of the law and total confusion since laws serve a purpose and enhance the rule of law. 20. Also in the case of Onjula Enterprises Ltd vs Samania [1986] KLR 651; the Court of Appeal had this to say on the importance of procedural law: “ The rules of the court must be adhered to strictly and if hardship of inconveniences is thereby caused, it would be easier to seek an amendment to the particular rule. It would be wrong to regard the rules of the constitution as of no substance. A rule of practice, however technical it may appear, is almost always based on a legal principle, and its neglect may lead to disregard of the principle involved. (See London Association for the protection of Trades & Anor vs Greenland’s Ltd [1916] 2 AC 15 at 38]” . 21. The above decisions were made prior to the enactment of the 2010 constitution. Therefore the court can ignore this misadventure and let Article 159 (c) (2) of the constitution come to the rescue of the Applicant . However, some procedural missteps if allowed to pass, could result in the creation of bad precedents. Further I associate myself with the views of Justice Kiage (JA) in the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 6 others [2013] KECA 113 (KLR) who while addressing the provisions of the aforestated Article of the constitution https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1442/eng@2026-02-12 3

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held: “ I am not in the least persuaded that Article 159 of the Constitution and the oxygen principles which both command courts to seek to do substantial justice in an efficient, proportionate and costeffective manner and to eschew defeatist technicalities were ever meant to aid in the overthrow or destruction of rules of procedure and to create an anarchical free-for-all in the administration of justice. This Court, indeed all courts, must never provide succour and cover to parties who exhibit scant respect for rules and timelines. Those rules and timelines serve to make the process of judicial adjudication and determination fair, just, certain and even-handed. Courts cannot aid in the bending or circumventing of rules and a shifting of goal posts for, while it may seem to aid one side, it unfairly harms the innocent party who strives to abide by the rules. I apprehend that it is in the even-handed and dispassionate application of rules that courts give assurance that there is clear method in the manner in which things are done so that outcomes can be anticipated with a measure of confidence, certainty and clarity where issues of rules and their application are concerned.” 22. I have studied the record and observed that indeed substantial and final orders made exparte. Indeed, the orders of were made following consideration of the Application under Certificate of Urgency. There was a serious constitutional violation. My sympathies go to the Applicant, but adherence to procedure is about, consistency and predictability of the law unless there are compelling reasons to deviate from established procedures. I have observed that the Applicant is represented, and this unfortunate Procedural lapse is not excusable. 23. In the circumstances I am left with no option save to strike out this Application. 24. The parties are family, and awarding of costs is not appropriate. Each party to meet their own costs. DATED, SIGNED AND DELIVERED AT ISIOLO, THIS 12TH DAY OF FEBRUARY, 2026 S. CHIRCHIR JUDGE In the presence of:Roba-Court Assistant Mr. Behailu for the Applicant Ms. Kaume for the Respondent. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1442/eng@2026-02-12 4

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