Introduction
1. This ruling is delivered in respect of the Plaintiff's Notice of Motion dated 25 th June 2026. The Application is brought under Articles 50 and 159(2) of the Constitution of Kenya, Section 3A of the Civil Procedure Act, and Orders 10 Rule 11 and 51 Rule 1 of the Civil Procedure Rules. The Plaintiff seeks the following orders:
a) Spent;
b) Pending the hearing and determination of this application inter partes, this Honourable Court be pleased to arrest the delivery of the judgment slated for delivery on 16th July,2026 in ELCC E053 of 2021 and which judgment would apply in ELC Case No E060 OF 2023.
c) This Honourable Court be pleased to arrest the delivery of the judgment in ELCC E053 of 2021 slated for delivery on 16th July,2026 and grant the Plaintiff/Applicant opportunity to prosecute his matter being ELCC E060 of 2023.
d) This Honourable Court be pleased to re-open the Plaintiff/Applicant's case and be allowed to prosecute the suit and the same be determined on its own merits
e) Any other or further orders as this Honourable Court will deem it fit to grant.
2. The Application is supported by the affidavit of Abdillahi Elmi Farah sworn on 25 th June 2026. The Plaintiff explains his absence on the hearing date was due to illness, which prevented him from attending Court or communicating with his advocates. He asserts that his default was unintentional and not meant to obstruct justice, and asks the Court to exercise its discretion in his favour.
3. The 2 nd and 3 rd Defendants oppose the application through a Replying Affidavit sworn by Mungai Ngaruiya on 4 th July 2026. They argue that the Plaintiff has not shown sufficient cause for the Court to exercise its discretion. They note the Plaintiff was previously granted a final adjournment, failed to attend the next hearing despite notice, and that reopening the case after the defence closed would cause prejudice and undermine the finality of litigation.
4. Pursuant to the directions of the Court, the application was canvassed by way of written submissions, which have been duly considered.
Issues for Determination
5. Having carefully considered the application, the affidavits in support and in opposition, parties’ submissions, the authorities cited and the entire record of proceedings, the sole issue arising for determination is whether the Plaintiff has established sufficient cause under Order 12 Rule 7 of the Civil Procedure Rules to warrant setting aside the orders made on 3 rd June 2026.
6. On 3 rd June 2026, when the matter came up for hearing, the Court dismissed the Plaintiff's suit for non-attendance. The Defendants thereafter proceeded with the hearing of their counterclaim, closed their case and the matter was reserved for judgment. The present application seeks to set aside the dismissal order and the consequential proceedings conducted thereafter.
7. Order 12 Rule 7 of the Civil Procedure Rules empowers the Court, upon such terms as may be just, to set aside or vary a judgment or order entered under that Order. The discretion conferred by that provision is wide. Still, it must be exercised judicially, having regard to the circumstances of each case and the overriding objective of ensuring that justice is done to all the parties.
8. The locus classicus on this issue is the decision in Shah v Mbogo & Another (1967) EA 116, where Harris J. stated:
“ The discretion is intended so to be exercised to avoid injustice or hardship resulting from accident, 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.”
9. Similarly, in Patel v East African Cargo Handling Services Ltd (1974) EA 75, the Court of Appeal for East Africa observed that there are no limits or restrictions on the judge's discretion except that it should be exercised upon such terms as are just, the primary concern of the Court being to do justice between the parties.
10. In CMC Holding Limited v Nzioki [2004] KECA 143 (KLR), the Court of Appeal reiterated that the discretion to set aside ex parte orders exists to avoid injustice and should ordinarily be exercised where doing so will enable a dispute to be determined on its merits, provided the opposite party will not suffer prejudice incapable of compensation by costs. The Court held:
“Our view is that in law, the discretion that a court of law has, in deciding whether or not to set aside ex parte order such as before us 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 in our mind not be a 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. Such an exercise of discretion would in our mind be wrong in principle.”
11. The guiding principles for exercising this discretion are well established. The Court must consider the explanation for the default, whether the application was made promptly, the applicant's conduct before and after dismissal, potential prejudice to the opposing party, and whether costs can adequately compensate for any prejudice.
12. The Plaintiff attributes his failure to attend Court on 3 rd June 2026 to illness. He deposes that he was medically indisposed, was recuperating at home and was consequently unable to attend Court or communicate with his advocates. He has provided medical documents in support. The Respondents challenge the sufficiency of this explanation, noting the Plaintiff had already been granted a final adjournment and should have exercised greater diligence.
13. The medical documents filed in Court support the Plaintiff's claim of illness on the hearing date. While the Respondents question their sufficiency, no evidence has been presented to challenge their authenticity. The Court therefore accepts the Plaintiff's explanation and finds he has shown sufficient cause for his absence on 3 rd June 2026.
14. This Court recognizes that illness is an inherent part of the human condition. It strikes without warning, its timing beyond the command of any person. To penalize a litigant for such an unforeseeable contingency, without concrete evidence of abuse, would be to demand of them the omniscience that is the domain of no mortal being.
15. I have also considered the Respondents' submission that the Plaintiff had previously been granted a final adjournment. That factor weighs against the exercise of the Court's discretion but is not decisive. The Court must determine the application based on all the circumstances prevailing on 3 rd June 2026, including the explanation offered for the Plaintiff's absence.
16. In the result, I am satisfied that the Plaintiff has established sufficient cause for his non-attendance on 3 rd June 2026. The threshold for the exercise of the Court's discretion under Order 12 Rule 7 of the Civil Procedure Rules has therefore been met.
17. The Respondents argue that setting aside the dismissal order would cause prejudice, as they proceeded with their counterclaim, closed their case, and expected the litigation to be nearly complete. This prejudice is real and must be considered.
18. However, the Respondents have not demonstrated that reopening the proceedings would occasion prejudice that cannot be addressed through appropriate orders as to costs or directions for an expedited hearing. The identified prejudice is procedural, not substantive, and can be compensated through thrown-away costs.
19. In contrast, the consequence for the Plaintiff is more severe. Refusing the application would prevent him from further participating in the proceedings. The Court must be cautious before concluding a hearing where the absence has been reasonably explained and no irreparable prejudice to the opposing party is shown.
20. Considering all circumstances, I am satisfied that any prejudice to the Respondents can be compensated by an award of thrown-away costs. The balance of justice favours exercising the Court's discretion under Order 12 Rule 7.
21. Having found that sufficient cause has been established, the next issue concerns the nature of the consequential orders that should follow. In particular, the Court must determine the effect of setting aside the dismissal order in circumstances where, following that dismissal, the Defendants proceeded with the hearing of their counterclaim and thereafter closed their case.
22. In the present case, the hearing of the counterclaim proceeded only because the Plaintiff's suit had first been dismissed for non-attendance. The Plaintiff was consequently absent not only during the dismissal of his suit but also during the hearing of the counterclaim. If the dismissal order is set aside while leaving the proceedings on the counterclaim intact, the Plaintiff would effectively be deprived of the opportunity to challenge the evidence adduced in support of the counterclaim, to cross-examine the Defendants' witnesses and to present his defence thereto. Such an outcome would be inconsistent with the purpose of setting aside the order of dismissal.
23. The interests of justice requires that the parties be restored, as closely as possible, to their positions before the Plaintiff's non-attendance on 3 rd June 2026. This allows the Plaintiff to prosecute his suit and defend the counterclaim, while preserving the Defendants' right to challenge the Plaintiff's evidence and pursue their counterclaim according to the Civil Procedure Rules.
24. However, the Respondents should not bear the financial consequences of the Plaintiff's default. They attended Court prepared to proceed, prosecuted the hearing, and incurred additional expenses defending this application. Therefore, reinstatement of the suit is conditional on payment of appropriate thrown-away costs within a specified period. If payment is not made, the orders will lapse automatically.
25. In light of the foregoing, the Notice of Motion dated 25 th June 2026 is allowed in the following terms:
a) The order made on 3 rd June 2026 dismissing the Plaintiff's suit is hereby set aside.
b) All consequential proceedings conducted thereafter, including the hearing of the counterclaim, the closure of the Defendants' case and the directions reserving the matter for judgment, are hereby vacated.
c) The Plaintiff's suit and the Defendants' counterclaim shall proceed from the stage immediately preceding the hearing of 3 rd June 2026.
d) The Plaintiff shall pay thrown-away costs for the hearing of 3 rd June 2026, assessed at Kshs. 25,000/= to the 1 st Defendant and Kshs. 25,000/= to the 2 nd and 3 rd Defendants, within fourteen (14) days of this date.
e) In default of the aforementioned payment, the orders granted herein shall automatically lapse, and the order of dismissal made on 3 rd June 2026 shall stand reinstated without further reference to the Court.
f) These orders shall apply mutatis mutandis to ELC Case No. E053 of 2021.
g) The costs of the present Application shall be borne by the Plaintiff.
It is so ordered.
Delivered and Dated at Machakos this 29 th day of July, 2026.
HON. J. N. KUYIONI
JUDGE
29.07.2026
Ruling delivered virtually through Microsoft Teams Video Conferencing Platform
In the presence of;
Catherine Court Assistant.
Mr. Manyolo for the Plaintiff.
Mr. Musyimi for 1st Defendant
Ms. Ngaruiya for 2 nd and 3 rd Defendants.
Mr. Kuria for the 4 th Respondent
ELCLC e060/2023 rULING10
1. This ruling is delivered in respect of the Plaintiff's Notice of Motion dated 25 th June 2026. The Application is brought under Articles 50 and 159(2) of the Constitution of Kenya, Section 3A of the Civil Procedure Act, and Orders 10 Rule 11 and 51 Rule 1 of the Civil Procedure Rules. The Plaintiff seeks the following orders:
a) Spent;
b) Pending the hearing and determination of this application inter partes, this Honourable Court be pleased to arrest the delivery of the judgment slated for delivery on 16th July,2026 in ELCC E053 of 2021 and which judgment would apply in ELC Case No E060 OF 2023.
c) This Honourable Court be pleased to arrest the delivery of the judgment in ELCC E053 of 2021 slated for delivery on 16th July,2026 and grant the Plaintiff/Applicant opportunity to prosecute his matter being ELCC E060 of 2023.
d) This Honourable Court be pleased to re-open the Plaintiff/Applicant's case and be allowed to prosecute the suit and the same be determined on its own merits
e) Any other or further orders as this Honourable Court will deem it fit to grant.
2. The Application is supported by the affidavit of Abdillahi Elmi Farah sworn on 25 th June 2026. The Plaintiff explains his absence on the hearing date was due to illness, which prevented him from attending Court or communicating with his advocates. He asserts that his default was unintentional and not meant to obstruct justice, and asks the Court to exercise its discretion in his favour.
3. The 2 nd and 3 rd Defendants oppose the application through a Replying Affidavit sworn by Mungai Ngaruiya on 4 th July 2026. They argue that the Plaintiff has not shown sufficient cause for the Court to exercise its discretion. They note the Plaintiff was previously granted a final adjournment, failed to attend the next hearing despite notice, and that reopening the case after the defence closed would cause prejudice and undermine the finality of litigation.
4. Pursuant to the directions of the Court, the application was canvassed by way of written submissions, which have been duly considered.
Issues for Determination
5. Having carefully considered the application, the affidavits in support and in opposition, parties’ submissions, the authorities cited and the entire record of proceedings, the sole issue arising for determination is whether the Plaintiff has established sufficient cause under Order 12 Rule 7 of the Civil Procedure Rules to warrant setting aside the orders made on 3 rd June 2026.
6. On 3 rd June 2026, when the matter came up for hearing, the Court dismissed the Plaintiff's suit for non-attendance. The Defendants thereafter proceeded with the hearing of their counterclaim, closed their case and the matter was reserved for judgment. The present application seeks to set aside the dismissal order and the consequential proceedings conducted thereafter.
7. Order 12 Rule 7 of the Civil Procedure Rules empowers the Court, upon such terms as may be just, to set aside or vary a judgment or order entered under that Order. The discretion conferred by that provision is wide. Still, it must be exercised judicially, having regard to the circumstances of each case and the overriding objective of ensuring that justice is done to all the parties.
8. The locus classicus on this issue is the decision in Shah v Mbogo & Another (1967) EA 116, where Harris J. stated:
“ The discretion is intended so to be exercised to avoid injustice or hardship resulting from accident, 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.”
9. Similarly, in Patel v East African Cargo Handling Services Ltd (1974) EA 75, the Court of Appeal for East Africa observed that there are no limits or restrictions on the judge's discretion except that it should be exercised upon such terms as are just, the primary concern of the Court being to do justice between the parties.
10. In CMC Holding Limited v Nzioki [2004] KECA 143 (KLR), the Court of Appeal reiterated that the discretion to set aside ex parte orders exists to avoid injustice and should ordinarily be exercised where doing so will enable a dispute to be determined on its merits, provided the opposite party will not suffer prejudice incapable of compensation by costs. The Court held:
“Our view is that in law, the discretion that a court of law has, in deciding whether or not to set aside ex parte order such as before us 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 in our mind not be a 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. Such an exercise of discretion would in our mind be wrong in principle.”
11. The guiding principles for exercising this discretion are well established. The Court must consider the explanation for the default, whether the application was made promptly, the applicant's conduct before and after dismissal, potential prejudice to the opposing party, and whether costs can adequately compensate for any prejudice.
12. The Plaintiff attributes his failure to attend Court on 3 rd June 2026 to illness. He deposes that he was medically indisposed, was recuperating at home and was consequently unable to attend Court or communicate with his advocates. He has provided medical documents in support. The Respondents challenge the sufficiency of this explanation, noting the Plaintiff had already been granted a final adjournment and should have exercised greater diligence.
13. The medical documents filed in Court support the Plaintiff's claim of illness on the hearing date. While the Respondents question their sufficiency, no evidence has been presented to challenge their authenticity. The Court therefore accepts the Plaintiff's explanation and finds he has shown sufficient cause for his absence on 3 rd June 2026.
14. This Court recognizes that illness is an inherent part of the human condition. It strikes without warning, its timing beyond the command of any person. To penalize a litigant for such an unforeseeable contingency, without concrete evidence of abuse, would be to demand of them the omniscience that is the domain of no mortal being.
15. I have also considered the Respondents' submission that the Plaintiff had previously been granted a final adjournment. That factor weighs against the exercise of the Court's discretion but is not decisive. The Court must determine the application based on all the circumstances prevailing on 3 rd June 2026, including the explanation offered for the Plaintiff's absence.
16. In the result, I am satisfied that the Plaintiff has established sufficient cause for his non-attendance on 3 rd June 2026. The threshold for the exercise of the Court's discretion under Order 12 Rule 7 of the Civil Procedure Rules has therefore been met.
17. The Respondents argue that setting aside the dismissal order would cause prejudice, as they proceeded with their counterclaim, closed their case, and expected the litigation to be nearly complete. This prejudice is real and must be considered.
18. However, the Respondents have not demonstrated that reopening the proceedings would occasion prejudice that cannot be addressed through appropriate orders as to costs or directions for an expedited hearing. The identified prejudice is procedural, not substantive, and can be compensated through thrown-away costs.
19. In contrast, the consequence for the Plaintiff is more severe. Refusing the application would prevent him from further participating in the proceedings. The Court must be cautious before concluding a hearing where the absence has been reasonably explained and no irreparable prejudice to the opposing party is shown.
20. Considering all circumstances, I am satisfied that any prejudice to the Respondents can be compensated by an award of thrown-away costs. The balance of justice favours exercising the Court's discretion under Order 12 Rule 7.
21. Having found that sufficient cause has been established, the next issue concerns the nature of the consequential orders that should follow. In particular, the Court must determine the effect of setting aside the dismissal order in circumstances where, following that dismissal, the Defendants proceeded with the hearing of their counterclaim and thereafter closed their case.
22. In the present case, the hearing of the counterclaim proceeded only because the Plaintiff's suit had first been dismissed for non-attendance. The Plaintiff was consequently absent not only during the dismissal of his suit but also during the hearing of the counterclaim. If the dismissal order is set aside while leaving the proceedings on the counterclaim intact, the Plaintiff would effectively be deprived of the opportunity to challenge the evidence adduced in support of the counterclaim, to cross-examine the Defendants' witnesses and to present his defence thereto. Such an outcome would be inconsistent with the purpose of setting aside the order of dismissal.
23. The interests of justice requires that the parties be restored, as closely as possible, to their positions before the Plaintiff's non-attendance on 3 rd June 2026. This allows the Plaintiff to prosecute his suit and defend the counterclaim, while preserving the Defendants' right to challenge the Plaintiff's evidence and pursue their counterclaim according to the Civil Procedure Rules.
24. However, the Respondents should not bear the financial consequences of the Plaintiff's default. They attended Court prepared to proceed, prosecuted the hearing, and incurred additional expenses defending this application. Therefore, reinstatement of the suit is conditional on payment of appropriate thrown-away costs within a specified period. If payment is not made, the orders will lapse automatically.
25. In light of the foregoing, the Notice of Motion dated 25 th June 2026 is allowed in the following terms:
a) The order made on 3 rd June 2026 dismissing the Plaintiff's suit is hereby set aside.
b) All consequential proceedings conducted thereafter, including the hearing of the counterclaim, the closure of the Defendants' case and the directions reserving the matter for judgment, are hereby vacated.
c) The Plaintiff's suit and the Defendants' counterclaim shall proceed from the stage immediately preceding the hearing of 3 rd June 2026.
d) The Plaintiff shall pay thrown-away costs for the hearing of 3 rd June 2026, assessed at Kshs. 25,000/= to the 1 st Defendant and Kshs. 25,000/= to the 2 nd and 3 rd Defendants, within fourteen (14) days of this date.
e) In default of the aforementioned payment, the orders granted herein shall automatically lapse, and the order of dismissal made on 3 rd June 2026 shall stand reinstated without further reference to the Court.
f) These orders shall apply mutatis mutandis to ELC Case No. E053 of 2021.
g) The costs of the present Application shall be borne by the Plaintiff.
It is so ordered.
Delivered and Dated at Machakos this 29 th day of July, 2026.
HON. J. N. KUYIONI
JUDGE
29.07.2026
Ruling delivered virtually through Microsoft Teams Video Conferencing Platform
In the presence of;
Catherine Court Assistant.
Mr. Manyolo for the Plaintiff.
Mr. Musyimi for 1st Defendant
Ms. Ngaruiya for 2 nd and 3 rd Defendants.
Mr. Kuria for the 4 th Respondent
ELCLC e060/2023 rULING10