BRIEF FACTS
The Applicant filed the instant application dated 30th October, 2025 seeking the following orders:
1. Spent.
2. Spent.
3. Spent.
4. THAT the Honourable court be pleased to set aside the ex-parte proceedings of 23/07/2025, judgment, decree issued on 25th September, 2025 and the Applicant be allowed to cross examine the plaintiff’s witness and the applicant be accorded an opportunity to testify in support of the defence filed herein for this suit be heard and determined on evidence presented by both parties.
5. THAT the costs of this application be in the cause.
The Application was based on grounds set out and supported by the Affidavit of ANN D. KEROR the Applicant herein sworn on 31st October, 2025. She stated that she was not aware of the hearing date 23rd July, 2025 when the plaintiff’s case was heard and closed and the defence case closed without evidence having been tendered. She stated that she has filed a formidable defence that raised triable issues which she could have articulated at the hearing had she been aware of the hearing date. She further stated that she only became aware that the suit had been heard on 23rd July, 2025 and judgment delivered on 25th September, 2025. She stated that the Respondent will suffer no prejudice beyond the scope of costs if the same is set aside. She urged the court to allow the application as prayed.
Response
The Respondent filed his Replying Affidavit sworn on 12th November, 2025 where he averred that the application was in conflict with the provisions of Sections 1A and 1B of the Civil Procedure Act. He further averred that on 3rd April, 2024 the Applicant appointed the firm of Naomi Muriithi & Co. Advocates to represent her in this case. He went on to aver that the said advocate participated in the subsequent proceedings. He averred that on 17th January, 2025 the matter was fixed for mention on 24th February, 2025 to take directions. He added that on 20th January, 2025 he prepared a mention notice which was served upon the Applicant’s advocates via email. He went on to aver that a hearing date was fixed for 24th February, 2025 where he served the Applicant’s advocate with the notice but on the hearing date, both the Applicant and her advocate never showed up. He averred that the said firm never denied being served with the hearing notice. He also averred that the Respondent has since been the use of his land for over ten years and he stood to suffer further losses if the case is retrogressed by setting aside of the judgment. He urged the court to dismiss the application with costs.
Submissions
Counsel for the Applicant filed his submissions dated 18th November, 2025 where he relied on the case of Evans V Bartlam [1937] AC 473. He submits that the court would not usually set aside a judgment unless it is satisfied that there were triable issues which raised a prima facie defence that should go for trial. He submits that the decision whether to set aside a judgment is discretionary. He further submits that the issues raised in the defence merited ventilation in trial and that it would be unfair for the Defendant to be condemned unheard. He relied on the case of Shah V Mbogo & Another [1967] EA 116 and the Court of Appeal case in CMC Holdings Ltd V Nzioki [2004] KLR 173. It was his submission that the Applicant’s failure to attend court was due to a mistake where the counsel on record did not inform the Applicant of the hearing date. He submits that the said mistake should not be visited upon an innocent litigant, in this case the Applicant who had filed a defence and documents in support of her case. He relied on the case of Philip Chemowolo & Another V Augustine Kubende [1982-88] KAR 103. He submits that it would be in the interest of justice that the application be allowed.
Counsel for the Plaintiff/Respondent on the other hand filed his submissions dated 20th November, 2025 where he identified one issue for determination, whether the application has merit. It was his submission that it was not denied that a hearing notice was served upon the Applicant’s advocate. He further submits that the hearing notice was served 5 months before the matter came up for hearing which was on 25th February, 2025. He argues that the Applicant has not shown what she did in those five months to keep up with the progress of her case. It was his submission that the Applicant in her defence under paragraph 7 admitted to the alleged trespass. He further submits that there is no claim in the defence that the Applicant was a purchaser for value. He added that the allegation of fraud was never pleaded in the defence and that the same cannot be parachuted into the case at this stage to justify setting aside of the judgment. He further submits that the defence raises no triable issues. In conclusion, he urged the court in exercise of its discretion to dismiss that application with costs and in the event the stay is granted, the same should be at thrown away costs of not less than Kshs. 50,000/=.
Analysis and Determination
This court has carefully considered the application and the main issue for determination is whether the Applicant is deserving of the review orders sought for.
The jurisdiction of this court for review of orders is provided for under Order 45 Rule 1 (1) of the Civil Procedure Rules which provides as follows:
“1. Application for review of decree or order
(1) Any person considering himself aggrieved-
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or
(b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.”
It is this court’s view that the basis of an application for review of an order is on the recovery of new and important matters or evidence which after due diligence, was not within the Applicant’s knowledge or could not be produced by them at the time when the order was made. Further an application for review may also be made on account of some mistake or error apparent on the face of the record, or for any other sufficient reason.
The Applicant claims that she was not informed by her advocate of the hearing date and that the same was a mistake from her advocate which should not be placed upon her. She further claimed that it would be in the interest of justice for the judgment to be set aside so that she could be accorded a chance to defend herself. The Respondent on the other hand contends that the Applicant’s advocate was well aware of the matter a fact which was not in dispute. He added and that the Applicant’s advocate was in receipt of the hearing notice but nevertheless failed to attend.
Order 12 rule 7 of the Civil Procedure Rules provides as follows:
“Where under this order judgment has been entered or a suit dismissed, the court, on application, may set aside or vary the judgment or order upon such terms as may be just”
It is important for the Applicant to prove that non-attendance in court was not deliberate but occasioned by reasonable excuse or omission. In the case of Kenya National Private Security Workers Union V Security Guards Services Limited [2020] KEELRC 659 (KLR) the court held as follows:
“It is trite that, the court exists to do justice to all the parties and it has unfettered discretion to set aside its judgments upon terms. In Shah v Mbogo and another [1966] EA 166, Harris J set out the guiding principle on a Judge’s discretion in setting aside a judgment, thus: “I have carefully considered the principles governing the exercise of the courts’ discretion to set aside a judgment obtained exparte. This discretion is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertent 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.”
In the Court of Appeal case of Simon Thuo Mwangi V Unga Feeds Limited [2015] eKLR the court held as follows:-
“On reasons presented, it takes course to set aside or refuse
to set aside. The court thus exercises a judicial discretion all the time having in mind what is just and fair in the case. The reason to set aside must therefore be based on good grounds or reasons advanced not on a whim or caprice.”
I have keenly perused the court record and it is not in dispute that the matter was heard and judgment was delivered on 25th September, 2025 in the absence of the Applicant or her advocate. This court is fully appraised of the necessity for the swift resolution of cases and the efficient management of court proceedings, in accordance with Article 159 of the Constitution and Sections 1A, 1B, and 3A of the Civil Procedure Act. It is my view that it is incumbent upon the court, litigants and advocates to ensure that cases are concluded expeditiously, without undue delay. I have considered the history of the case, and it is evident from the court record that the Applicant’s counsel contributed to the matter being heard without her presence or that of the Applicant since the counsel even upon receipt and acknowledgment of the hearing notice, she was never keen on the matter. It is also evident that the Applicant thereafter sought the services of another advocate.
It is this court’s view that in exercise of the court’s discretion and in the interest of justice, it would be prudent to allow the application on condition that the Applicant pays Kshs. 50,000 as thrown away costs to the Respondent within 30 days from the date of this ruling failure which the application stands dismissed with costs. Costs of the application shall be borne by the Applicant. It is so ordered.
The Applicant filed the instant application dated 30th October, 2025 seeking the following orders:
1. Spent.
2. Spent.
3. Spent.
4. THAT the Honourable court be pleased to set aside the ex-parte proceedings of 23/07/2025, judgment, decree issued on 25th September, 2025 and the Applicant be allowed to cross examine the plaintiff’s witness and the applicant be accorded an opportunity to testify in support of the defence filed herein for this suit be heard and determined on evidence presented by both parties.
5. THAT the costs of this application be in the cause.
The Application was based on grounds set out and supported by the Affidavit of ANN D. KEROR the Applicant herein sworn on 31st October, 2025. She stated that she was not aware of the hearing date 23rd July, 2025 when the plaintiff’s case was heard and closed and the defence case closed without evidence having been tendered. She stated that she has filed a formidable defence that raised triable issues which she could have articulated at the hearing had she been aware of the hearing date. She further stated that she only became aware that the suit had been heard on 23rd July, 2025 and judgment delivered on 25th September, 2025. She stated that the Respondent will suffer no prejudice beyond the scope of costs if the same is set aside. She urged the court to allow the application as prayed.
Response
The Respondent filed his Replying Affidavit sworn on 12th November, 2025 where he averred that the application was in conflict with the provisions of Sections 1A and 1B of the Civil Procedure Act. He further averred that on 3rd April, 2024 the Applicant appointed the firm of Naomi Muriithi & Co. Advocates to represent her in this case. He went on to aver that the said advocate participated in the subsequent proceedings. He averred that on 17th January, 2025 the matter was fixed for mention on 24th February, 2025 to take directions. He added that on 20th January, 2025 he prepared a mention notice which was served upon the Applicant’s advocates via email. He went on to aver that a hearing date was fixed for 24th February, 2025 where he served the Applicant’s advocate with the notice but on the hearing date, both the Applicant and her advocate never showed up. He averred that the said firm never denied being served with the hearing notice. He also averred that the Respondent has since been the use of his land for over ten years and he stood to suffer further losses if the case is retrogressed by setting aside of the judgment. He urged the court to dismiss the application with costs.
Submissions
Counsel for the Applicant filed his submissions dated 18th November, 2025 where he relied on the case of Evans V Bartlam [1937] AC 473. He submits that the court would not usually set aside a judgment unless it is satisfied that there were triable issues which raised a prima facie defence that should go for trial. He submits that the decision whether to set aside a judgment is discretionary. He further submits that the issues raised in the defence merited ventilation in trial and that it would be unfair for the Defendant to be condemned unheard. He relied on the case of Shah V Mbogo & Another [1967] EA 116 and the Court of Appeal case in CMC Holdings Ltd V Nzioki [2004] KLR 173. It was his submission that the Applicant’s failure to attend court was due to a mistake where the counsel on record did not inform the Applicant of the hearing date. He submits that the said mistake should not be visited upon an innocent litigant, in this case the Applicant who had filed a defence and documents in support of her case. He relied on the case of Philip Chemowolo & Another V Augustine Kubende [1982-88] KAR 103. He submits that it would be in the interest of justice that the application be allowed.
Counsel for the Plaintiff/Respondent on the other hand filed his submissions dated 20th November, 2025 where he identified one issue for determination, whether the application has merit. It was his submission that it was not denied that a hearing notice was served upon the Applicant’s advocate. He further submits that the hearing notice was served 5 months before the matter came up for hearing which was on 25th February, 2025. He argues that the Applicant has not shown what she did in those five months to keep up with the progress of her case. It was his submission that the Applicant in her defence under paragraph 7 admitted to the alleged trespass. He further submits that there is no claim in the defence that the Applicant was a purchaser for value. He added that the allegation of fraud was never pleaded in the defence and that the same cannot be parachuted into the case at this stage to justify setting aside of the judgment. He further submits that the defence raises no triable issues. In conclusion, he urged the court in exercise of its discretion to dismiss that application with costs and in the event the stay is granted, the same should be at thrown away costs of not less than Kshs. 50,000/=.
Analysis and Determination
This court has carefully considered the application and the main issue for determination is whether the Applicant is deserving of the review orders sought for.
The jurisdiction of this court for review of orders is provided for under Order 45 Rule 1 (1) of the Civil Procedure Rules which provides as follows:
“1. Application for review of decree or order
(1) Any person considering himself aggrieved-
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or
(b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.”
It is this court’s view that the basis of an application for review of an order is on the recovery of new and important matters or evidence which after due diligence, was not within the Applicant’s knowledge or could not be produced by them at the time when the order was made. Further an application for review may also be made on account of some mistake or error apparent on the face of the record, or for any other sufficient reason.
The Applicant claims that she was not informed by her advocate of the hearing date and that the same was a mistake from her advocate which should not be placed upon her. She further claimed that it would be in the interest of justice for the judgment to be set aside so that she could be accorded a chance to defend herself. The Respondent on the other hand contends that the Applicant’s advocate was well aware of the matter a fact which was not in dispute. He added and that the Applicant’s advocate was in receipt of the hearing notice but nevertheless failed to attend.
Order 12 rule 7 of the Civil Procedure Rules provides as follows:
“Where under this order judgment has been entered or a suit dismissed, the court, on application, may set aside or vary the judgment or order upon such terms as may be just”
It is important for the Applicant to prove that non-attendance in court was not deliberate but occasioned by reasonable excuse or omission. In the case of Kenya National Private Security Workers Union V Security Guards Services Limited [2020] KEELRC 659 (KLR) the court held as follows:
“It is trite that, the court exists to do justice to all the parties and it has unfettered discretion to set aside its judgments upon terms. In Shah v Mbogo and another [1966] EA 166, Harris J set out the guiding principle on a Judge’s discretion in setting aside a judgment, thus: “I have carefully considered the principles governing the exercise of the courts’ discretion to set aside a judgment obtained exparte. This discretion is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertent 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.”
In the Court of Appeal case of Simon Thuo Mwangi V Unga Feeds Limited [2015] eKLR the court held as follows:-
“On reasons presented, it takes course to set aside or refuse
to set aside. The court thus exercises a judicial discretion all the time having in mind what is just and fair in the case. The reason to set aside must therefore be based on good grounds or reasons advanced not on a whim or caprice.”
I have keenly perused the court record and it is not in dispute that the matter was heard and judgment was delivered on 25th September, 2025 in the absence of the Applicant or her advocate. This court is fully appraised of the necessity for the swift resolution of cases and the efficient management of court proceedings, in accordance with Article 159 of the Constitution and Sections 1A, 1B, and 3A of the Civil Procedure Act. It is my view that it is incumbent upon the court, litigants and advocates to ensure that cases are concluded expeditiously, without undue delay. I have considered the history of the case, and it is evident from the court record that the Applicant’s counsel contributed to the matter being heard without her presence or that of the Applicant since the counsel even upon receipt and acknowledgment of the hearing notice, she was never keen on the matter. It is also evident that the Applicant thereafter sought the services of another advocate.
It is this court’s view that in exercise of the court’s discretion and in the interest of justice, it would be prudent to allow the application on condition that the Applicant pays Kshs. 50,000 as thrown away costs to the Respondent within 30 days from the date of this ruling failure which the application stands dismissed with costs. Costs of the application shall be borne by the Applicant. It is so ordered.