Joseph Okiki Kasidhi v Rosemary Okwirry Ochieng

3. He further averred that the parties failed to agree on a valuer; prompting the Institution of Surveyors of Kenya, through a letter addressed to this Court and copied to all parties, to appoint an independent valuer, Mr. Maurice Ochieng Mireri. The appointed valuer undertook the valuation in accordance with the decree, filed the report in court, and shared copies with the parties and their respective counsel. 4. Regarding the proceedings of court thereafter, the applicant averred that on 15th January 2025, the respondent’s counsel served his Advocates with an application dated 24th December 2024, which had been fixed for hearing on 3rd February 2025. He pointed out that thereafter on 22nd January 2025, his counsel was served with an undated mention notice by the Court’s registry, rescheduling the matter for mention on 3rd March 2025; and that upon receiving the mention notice for 3rd March 2025, his counsel concluded that the earlier hearing date of 3rd February 2025 had been overtaken by events. In his explanation, this was the sole reason why his counsel did not attend court on the 3rd February 2025. 5. The applicant contended that he has an arguable defence to the respondent’s application dated 24th December 2024, noting that the respondent had embarked on an illegal valuation process contrary to the decree issued by the court. He therefore urged the Court to allow the application and set aside the ex parte orders issued on 3rd February 2025. 6. In response to the application, the respondent filed a Replying Affidavit sworn on 2nd April 2025. She averred that the application is malicious, insufficient and misleading in itself as the applicant had concealed material facts from the Court. She explained that she filed an application on 24th December 2024 seeking an order for re-valuation of the matrimonial property, being dissatisfied with the initial valuation; and that applicant was aware of the application, having been served on 15th January 2025, with notice that the matter set for directions on 3rd February 2025. According to her, in spite of service, the applicant did not respond to the application or appear in court on 3rd February 2025. 7. She further deposed that, satisfied that service had been effected, the court proceeded ex parte and allowed the application; and therefore the orders were neither irregular nor fraudulent since the applicant was afforded an opportunity for a fair hearing but failed to participate in the process. The matter was subsequently scheduled for confirmation of compliance on 3rd March 2025; at which point the applicant chose to appear. 8. The respondent also indicated that she had contacted the Institution of Surveyors of Kenya via the letter dated 11th March 2025 and is awaiting further directions. She denied that her counsel served a mention notice on the applicant’s counsel on 22nd January 2025, stating that they were duly served with the notice issued by the court. In the circumstances, the respondent urged the court to dismiss the application dated 21st March 2025. 9. The application was canvassed by way of written submissions, pursuant to the directions given herein on 12th May 2025. In the applicant’s submissions dated 9th June 2025, he submitted that setting aside of ex parte orders is discretionary and that the discretion of the Court is intended to ensure that the ends of justice are met. He relied on the cases of Esther Wamaitha Njihia & 2 others v Safaricom Limited [2014] KEHC 6699 (KLR) and Shah v Mbogo [1968] E A 93 in which it was held that the court’s discretion to set aside ex parte orders is exercised to prevent injustice or hardship from accident, inadvertence, or excusable error. 10. In the applicant’s submission, he had shown sufficient cause for the setting aside of the ex parte orders issued on 3rd February 2025. He argued that his failure to attend court was due to the fact that his Advocate was served with a Mention Notice for 3rd March 2025 on 22nd January 2025, prior to the 3rd February 2025 hearing date. He urged the Court to investigate its preparation and service of that https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6703/eng@2026-04-24 2

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notice for the reason that it suggested sharp practice. The applicant pointed out that he filed a Replying Affidavit to the application dated 24th December 2024 raising triable issues, including a jurisdictional question, namely, that the matter is res judicata, as a valuer had already been duly nominated and a report submitted to the court. 11. On her part, the respondent relied on her written submissions dated 13th June 2025, in which she reiterated that a judgment and decree had been entered in the present suit; and that she filed the application dated 24th December 2024 in respect of which the impugned orders were granted on 3rd February 2025. She submitted that she served the application on the applicant on 15th January 2025, along with a mention notice for 3rd February 2025; and that the applicant failed to respond thereto. 12. She also referred to the case of Stephen Ndichu V Monty’s Wines And Spirits Ltd [2006] KEHC 3445 (KLR) for the submission that the discretion to set aside ex parte orders is not intended to aid those who deliberately delay or obstruct justice, and that factors such as the nature of the action, available defence, and possibility of compensation ought to be borne in mind as well. The respondent also placed reliance on Jomo Kenyatta University of Agriculture & Technology v Mussa Ezekiel Oebah [2014] KECA 143 (KLR) and urged the Court to find that the applicant had failed to demonstrate what prejudice he stands to suffer if the orders issued on 3rd February 2025 are maintained. 13. Needless to say that the Court has unfettered discretion to set aside the ex parte proceedings and orders so long as sufficient cause has been shown to warrant such action. Order 12 Rule 7 of the Civil Procedure Rules is explicit 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.” 14. Accordingly, in Shah v Mbogo [1967] EA 116, it was held that the discretion is intended to be exercised "...to avoid injustice or hardship resulting from inadvertence or excusable mistake or error…" but is not designed to assist a person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice, (see also Esther Wamaitha Njihia & 2 others v Safaricom Limited [2014] KEHC 6699 (KLR), Stephen Ndichu V Monty’s Wines And Spirits Ltd [2006] KEHC 3445 (KLR) and Jomo Kenyatta University of Agriculture & Technology v Mussa Ezekiel Oebah [2014] KECA 143 (KLR) 15. Similarly, in CMC Holdings Limited v Nzioki [2004] 1 KLR 173 that: “ In law, the discretion that a Court of law has, in deciding whether or not to set aside an exparte order…was meant to ensure that a litigant does not suffer injustice or hardship as a result of among other things an excusable mistake or error. It would...not be proper use of such a discretion if the Court turns its back to a litigant who clearly demonstrates such an excusable mistake, inadvertence, accident or error..." 16. I have considered the application, its Supporting Affidavit as well as the Replying Affidavit filed herein by the parties. I have likewise given due consideration to the written submissions filed by learned counsel on behalf of the parties. The single issue for determination is whether the applicant has shown sufficient cause for the setting aside of the proceedings and orders made on the 3rd February 2025. 17. Upon reviewing the documents on record, it is evident that the Court proceeded ex parte for nonattendance and issued the orders of 3rd February 2025 without taking cognizance of the fact that an undated Mention Notice had also been herein issued for 3rd March 2025 and served on counsel for the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6703/eng@2026-04-24 3

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parties on 22nd January 2025 by the Registry. Both parties confirmed service that notice; and there is on record and Affidavit of Service confirming service, sworn by the Court Bailiff on 23rd January 2025. 18. While the Court was unable to ascertain whether there was collusion or mischief in the issuance of the Mention Notice for 3rd March 2025, the record does confirm that the applicant’s belief that the hearing date had shifted from 3rd February 2025 to 3rd March 2025 is not without basis. In the circumstances, it is my finding that a plausible explanation has been given for the applicant’s non-attendance on 3rd February 2025. It is therefore only fair and just that he be given an opportunity to present his case in respect of the application dated 24th December 2024. 19. Indeed, in the case of Branco Arabe Espanol v Bank of Uganda [1999] 2 EA 22, it was held: “ The administration of justice should normally require that the substance of all disputes should be investigated and decided on their merits, and that errors, lapses should not necessarily debar a litigant from the pursuit of his rights and unless a lack of adherence to rules renders the appeal process difficult and inoperative, it would seem that the main purpose of litigation, namely the hearing and determination of disputes, should be fostered rather than hindered”. 20. The same position was restated by the Court of Appeal in Philip Keipto Chemwolo and Mumias Sugar Co. Ltd v Augustine Kubende [1986] eKLR as hereunder: “ 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 suffer the penalty of not having his case determined on its merits ... 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, as is often said, exists for the purpose of deciding the rights of the parties and not for the purpose of imposing discipline." 21. Last but certainly not least, Article 50(1) of the Constitution guarantees every party the right to be heard, and therefore it is the court’s fundamental duty to ensure that all parties seeking justice are afforded a fair opportunity to present their case. 22. In the result, the Notice of Motion dated 21st March 2025 is hereby allowed and orders granted as follows: (a) That the ex parte proceedings and orders made herein on the 3rd February 2025 be and are hereby set aside. (b) That Respondent’s Application dated 24th December 2024 is hereby reinstated for hearing and determination on merit. (c) Each party to bear their own costs of the application. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 24TH DAY OF APRIL 2026 OLGA SEWE JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6703/eng@2026-04-24 4

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