As the court was preparing to deliver its judgment on this matter which was slated for 20-06-2025, the 1 st respondent came up with an application dated 13 th June 2025 asking this court to arrest its judgement and the matter be heard afresh with the 1 st respondent being given leave to file his response to the originating motion dated 7 th June 2024. The court arrested its judgement and the application was heard orally on 20-06-2025.
The 1 st respondent had been represented by the firm of Chesikaw & Kiprop Advocates who had all along been making applications to be given more time to respond until they came up with an application for leave to cease acting for the respondents through a chamber summons application dated 31-01-2025. The reason thereof was that the advocates had lost touch with the respondents and were unable to get proper instructions. I dismissed the application on 10-02-2025 for want of prosecution. The current advocates for the 1 st respondent came on record on 23-04-2025 but did not appear in court on 24-04-2025 when the matter was fixed for judgment.
The 1 st respondent avers that he became sick and frail and bed ridden on a date he has not specified such that he was not able to follow up the matter. He claims to have been admitted in Bisan Biliqo Hospital in remote areas of Merti Sub County in Isiolo where he was diagnosed with severe pneumonia and placed on medication and bed rest. He has exhibited a note from the said hospital that shows that he was treated therein on 16-02-2025. According to him, the illness made him lose communication with his former advocates hence the lack of his response to the originating motion. He depones that even after he got well, he was not able to get in touch with his former advocates as his calls went unanswered. He alleges that he had supplied his former advocates with all documents in opposition to the originating motion and they should have filed a response. He then proceeds to give what he believes would be a good defence to the application.
The applicant did not file a reply to the application but gave an oral representation on 20-06-2025 in opposition to the application. Counsel for the applicant, Miss Amadi submitted that the 1 st respondent has all through been served with notices since the matter was filed on 10-06-2024 and no reasons have been advanced for failure to file response. She added that the current advocates filed their notice of appointment on 23-04-2025 and that they served them with mention notice for 24-04-2025 but they did not file an affidavit of service to that effect. She submitted further that the note from the hospital showed that the 1 st respondent fell sick on 16-02-2025 which was almost a year after the application was filed and the current application is a delaying tactic.
I have considered the reasons given by the 1 st respondent for failure to file its reply to the main application. I do agree with the counsel for the applicant that the 1 st respondent was granted enough time to file its response to the application. The proceedings in this matter started on 24-06-2024 and the 1 st respondent’s former counsel appeared for the first time in court on 8-10-2024 and confirmed having received all the documents filed by the applicant and sought 21 days to file a reply. On 11-11-2024, the counsel for the respondents told the court that their response was ready but not filed because his client who was based in north eastern part of the country had not signed and I proceeded to give directions that the responses be filed and served within seven days. When the matter came again for mention on 20-1-2025, the counsel for the respondents told the court that he had tried reaching his clients in vain and asked for time to file an application for leave to cease acting for the respondents.
Based on the above, I note that the 1 st respondent’s explanation resonates with the representations by his previous counsel. For instance, on 11-11-2024, the counsel had told the court that the responses were ready but were not filed because they were not signed due to his lack of communication with the respondents. For the responses to have been ready, the 1 st respondent must had supplied the counsel with documents and in the circumstances, I find that the explanation by the 1 st respondent that he had given the necessary documents to his advocates to prepare defence is plausible.
However, it is trite that cases belong to the parties and not advocates and it is the responsibility of the parties to follow up the status of their matters with their advocates. In this matter, the response was ready but could not be filed without the signatures of the 1 st respondent meaning that the lapse was on the 1 st respondent and not his advocates. We cannot therefore blame the counsel for the failure to file the responses and in that case the adage that a mistake of counsel should not be visited upon the innocent litigator does not hold in this matter.
The applicant has stated that it had served the 1 st respondent’s current advocates with mention notice for 24-04-2025 but I was not able to trace any affidavit of service to that effect. The applicant’s counsel actually told the court that they had not filed any. I therefore give the benefit of doubt on failure to attend on 24-04-2025 to the respondent.
The blame for the delay in filing the responses lies squarely on the 1 st respondent and he must carry that cross. I however note the that the defence the 1 st respondent intends to mount raises reasonable triable issues. It is also notable that the effect of the judgment herein would involve a possibility of depriving the 1 st respondent of his property and it is only fair and just that before that is done, he be given a chance to explain himself. In CMC Holdings Ltd v James Mumo Nzioki (2004) KECA 143 (KLR) it was held by the Court of Appeal that;
‘The law is now well settled that in an application for setting aside ex parte judgment, the Court must consider not only reasons why the defence was not filed or for that matter why the applicant failed to turn up for hearing on the hearing date but also whether the applicant has reasonable defence which is usually referred as whether the defence if filed already or if a draft defence is annexed to the application, raises triable issues.’
Based on the above, I will allow the 1 st respondent an opportunity to defend the application but not without consequences on costs. The application is allowed in the following terms;
The 1 st respondent shall pay to the applicants throw away costs of Kshs 30,000.00 within the next seven days.
The respondents shall file their responses to the application within the next seven days from the date of this ruling.
The matter shall be mentioned for directions on submissions on 30-07-2025.
In the event the 1 st respondent shall fail to comply with any of the above directions, the orders herein shall automatically lapse.
The applicant shall extract and served these directions on the 2 nd respondent within three days.
Dated, signed and delivered at Nairobi this 4 th day of July 2025.
B.M. MUSYOKI
JUDGE OF THE HIGH COURT.
Ruling delivered in presence of Mr. Mwiti for the 1 st respondent and in absence of the applicant.
The 1 st respondent had been represented by the firm of Chesikaw & Kiprop Advocates who had all along been making applications to be given more time to respond until they came up with an application for leave to cease acting for the respondents through a chamber summons application dated 31-01-2025. The reason thereof was that the advocates had lost touch with the respondents and were unable to get proper instructions. I dismissed the application on 10-02-2025 for want of prosecution. The current advocates for the 1 st respondent came on record on 23-04-2025 but did not appear in court on 24-04-2025 when the matter was fixed for judgment.
The 1 st respondent avers that he became sick and frail and bed ridden on a date he has not specified such that he was not able to follow up the matter. He claims to have been admitted in Bisan Biliqo Hospital in remote areas of Merti Sub County in Isiolo where he was diagnosed with severe pneumonia and placed on medication and bed rest. He has exhibited a note from the said hospital that shows that he was treated therein on 16-02-2025. According to him, the illness made him lose communication with his former advocates hence the lack of his response to the originating motion. He depones that even after he got well, he was not able to get in touch with his former advocates as his calls went unanswered. He alleges that he had supplied his former advocates with all documents in opposition to the originating motion and they should have filed a response. He then proceeds to give what he believes would be a good defence to the application.
The applicant did not file a reply to the application but gave an oral representation on 20-06-2025 in opposition to the application. Counsel for the applicant, Miss Amadi submitted that the 1 st respondent has all through been served with notices since the matter was filed on 10-06-2024 and no reasons have been advanced for failure to file response. She added that the current advocates filed their notice of appointment on 23-04-2025 and that they served them with mention notice for 24-04-2025 but they did not file an affidavit of service to that effect. She submitted further that the note from the hospital showed that the 1 st respondent fell sick on 16-02-2025 which was almost a year after the application was filed and the current application is a delaying tactic.
I have considered the reasons given by the 1 st respondent for failure to file its reply to the main application. I do agree with the counsel for the applicant that the 1 st respondent was granted enough time to file its response to the application. The proceedings in this matter started on 24-06-2024 and the 1 st respondent’s former counsel appeared for the first time in court on 8-10-2024 and confirmed having received all the documents filed by the applicant and sought 21 days to file a reply. On 11-11-2024, the counsel for the respondents told the court that their response was ready but not filed because his client who was based in north eastern part of the country had not signed and I proceeded to give directions that the responses be filed and served within seven days. When the matter came again for mention on 20-1-2025, the counsel for the respondents told the court that he had tried reaching his clients in vain and asked for time to file an application for leave to cease acting for the respondents.
Based on the above, I note that the 1 st respondent’s explanation resonates with the representations by his previous counsel. For instance, on 11-11-2024, the counsel had told the court that the responses were ready but were not filed because they were not signed due to his lack of communication with the respondents. For the responses to have been ready, the 1 st respondent must had supplied the counsel with documents and in the circumstances, I find that the explanation by the 1 st respondent that he had given the necessary documents to his advocates to prepare defence is plausible.
However, it is trite that cases belong to the parties and not advocates and it is the responsibility of the parties to follow up the status of their matters with their advocates. In this matter, the response was ready but could not be filed without the signatures of the 1 st respondent meaning that the lapse was on the 1 st respondent and not his advocates. We cannot therefore blame the counsel for the failure to file the responses and in that case the adage that a mistake of counsel should not be visited upon the innocent litigator does not hold in this matter.
The applicant has stated that it had served the 1 st respondent’s current advocates with mention notice for 24-04-2025 but I was not able to trace any affidavit of service to that effect. The applicant’s counsel actually told the court that they had not filed any. I therefore give the benefit of doubt on failure to attend on 24-04-2025 to the respondent.
The blame for the delay in filing the responses lies squarely on the 1 st respondent and he must carry that cross. I however note the that the defence the 1 st respondent intends to mount raises reasonable triable issues. It is also notable that the effect of the judgment herein would involve a possibility of depriving the 1 st respondent of his property and it is only fair and just that before that is done, he be given a chance to explain himself. In CMC Holdings Ltd v James Mumo Nzioki (2004) KECA 143 (KLR) it was held by the Court of Appeal that;
‘The law is now well settled that in an application for setting aside ex parte judgment, the Court must consider not only reasons why the defence was not filed or for that matter why the applicant failed to turn up for hearing on the hearing date but also whether the applicant has reasonable defence which is usually referred as whether the defence if filed already or if a draft defence is annexed to the application, raises triable issues.’
Based on the above, I will allow the 1 st respondent an opportunity to defend the application but not without consequences on costs. The application is allowed in the following terms;
The 1 st respondent shall pay to the applicants throw away costs of Kshs 30,000.00 within the next seven days.
The respondents shall file their responses to the application within the next seven days from the date of this ruling.
The matter shall be mentioned for directions on submissions on 30-07-2025.
In the event the 1 st respondent shall fail to comply with any of the above directions, the orders herein shall automatically lapse.
The applicant shall extract and served these directions on the 2 nd respondent within three days.
Dated, signed and delivered at Nairobi this 4 th day of July 2025.
B.M. MUSYOKI
JUDGE OF THE HIGH COURT.
Ruling delivered in presence of Mr. Mwiti for the 1 st respondent and in absence of the applicant.