RULING
On 13 th March 2026, this court entered judgment for the plaintiff against the defendant for Kshs 10,991,712.00 plus costs of interest. The said judgment was entered after hearing the plaintiff’s three witnesses in absence of the defendant and his counsel despite the defendant having filed defence. A day before the judgment, the defendant filed an application dated 11 th March 2026 in an attempt to arrest the judgement which I dismissed for recorded reasons through a ruling dated 13 th March 2026.
After delivery of the judgment, the defendant filed a notice of motion dated 17 th April 2026 which is the subject of this ruling praying that;
1. Spent.
2. Spent.
3. That the Honourable Court be pleased to grant the firm of Ms Quinter Adoyo & Company Advocates, leave to come on record and to take over representation of the applicant/defendant in this matter, after judgment.
4. That upon hearing this application, the court be pleased to issue orders setting aside the proceedings taken ex-parte on the 15 th and 16 th December, 2025 when the main suit was heard, as well as the judgment delivered on the 13 th March 2026, and the ensuing decree.
5. That upon hearing this application, the Honourable Court be pleased to enlarge time for the applicant to file his list of witnesses, witness statements, list of documents and documents in support of the defence case.
6. That upon hearing this application, the Honourable Court be pleased to re-open the matter and set it down for hearing de-novo and inter-partes.
7. That the costs of this application be in the cause.
The application
The defendant has listed 26 grounds on which the application is based which I find repetitive of what is contained in his supporting affidavit sworn on 17 th April 2026. The summary of the grounds is that the defendant’s failure to participate in the proceedings was caused by his previous advocate’s failure to update him and that he has a good defence to the claim.
The defendant avers in the supporting affidavit that after he was served with the suit documents, he instructed the firm of Peter M. Warindu & Company Advocates who entered appearance and filed defence on 26 th September 2024 after which the counsel assured him that he would be receiving updates from time to time and that he needed not attend court every time the matter was to come for mention and he would be informed when his attendance was needed. Despite this assurance, he never received any updates or information from his advocates despite him meeting his obligations including paying legal fees.
The defendant averred further that his incessant calls to his advocates would be responded with assurances that he would be informed once the matter was ripe for hearing which information he believed. He claims to have shared all the documents necessary for his defence with his advocate and believed that he would come with his witness during the hearing because he was not informed of the need to have their statements recorded and filed.
The defendant adds that he has since discovered with the help of Gad Aguko advocate that the hearing of the matter came at a time he was indisposed and not able to sustain communications in proof of which he has attached a sick off sheet from Dr. Collins Nakhabi of Eurocity Hospital-Kisumu dated 15 th December 2025. He depones further that client-advocate relationship with his first counsel had become strained as most of his calls and messages seeking for updates went unattended which left him frustrated.
He adds that following the frustrations, he made a visit to the advocate’s last known address on 3 rd March 2026 but was unsuccessful and on 5 th March 2026, he engaged the firm of Aguko Osman and Company Advocates upon which it was established that the matter had been heard and was pending for judgment on 13 th March 2026 hence the application filed to arrest the judgment which I have mentioned at the beginning of this ruling. After the judgment, he was unable to reach the said firm despite having paid legal fees hence instructions to the current advocate.
He claims that he had a good defence to the plaintiff’s claim which was jeopardized by his previous advocate’s failure to attend court and update him. He argues that natural justice demands that a party who has expressed desire to be heard should not be condemned unheard and that going by seriousness of the case, he should be given an opportunity to present his defence.
Plaintiff’s response
The plaintiff’s investigator, Mr. Augustine Mukwekwe swore an affidavit dated 27 th April 2026 in opposition to the application. He averred that the application is materially misconceived, incompetent, an abuse of the court process and bad in law for material non-disclosure. He argues that in view of this court’s ruling dated 13 th March 2026 in which it declined to arrest judgment, the current application is res judicata. He avers further that this court is functus officio over the issue raised by the application. He believes that the application has been made for purposes of frustrating recovery of the decretal sum.
Analysis and determination
The parties filed their submissions dated 13 th May 2026 (the defendant’s) and 20 th May 2026 (the plaintiff’s). I have considered the submissions, the parties’ affidavits and documents filed therewith. Having done so, I form opinion that the issues for determination in the application are; whether the application is res judicata the defendant’s application dated 11 th March 2026; whether this court is functus officio as it relates to issues raised by the defendant and whether the defendant deserves the orders for setting aside the proceedings and judgment.
The plaintiff has claimed that the application is res judicata the defendant’s application dated 11 th March 2026. The earlier application sought the following orders;
1. THAT this Honourable Court be pleased to certify this application urgent.
2. THAT the service of this application be dispensed with in the first instance owing to the urgency of the matter.
3. THAT the Honourable Court be pleased to arrest and/or suspend the writing and delivery of its judgment on the suit herein scheduled for 13 th March, 2026 or any other day pending the hearing and determination of this application.
4. THAT the Honourable Court be pleased to issue an order granting leave to the defendant/applicant to file his list of witnesses, witness statements and list and bundle of documents out of time.
5. THAt upon grant of prayer (4) above, the Honourable Court be pleased to grant an order directing the suit herein be heard de novo.
6. THAT the costs of this application be provided for.
When this application came before me in the morning of 13 th March 2026, I in declining to grant the orders sought held that I would not go to the details of the reason advanced by the defendant by holding that;
‘I have considered the grounds of the application and reasons given in the supporting affidavit. I am not convinced that the defendant deserves the orders. The defence in this matter was filed on 26-09-2024. The defendant’s appointed advocates were served with hearing notices all through. I do not wish to say much about the sequence of events from the date of filing the defence to the date the defendant allegedly learned of the status of this matter for reason that I am considering the application ex-pate and that the parties may after my judgment present the same arguments in a possible application of different nature.
The defendant has not told the court why it took him more than a week to file this application after discovering that the matter was pending for judgment today. The application was drawn on 11 th March 2026 but the same was not filed until 12-03-2026 at 17:18 hours. This was after the court had dealt with certificates for the day and closed business. I take this as an attempt to frustrate the process of the court. The defendant still have remedies available to him after the judgment is delivered.’
It is clear from the above holding that I was concerned by the timing of the application dated 11 th March 2026 and not the merits of the reasons for the failure to attend the hearing and proceedings. It is also clear that I saved these considerations in the event of a future application like this one. Based on this, it is my view that although the first application had prayer for the matter starting de novo, the natures of the applications are different and I did not go into the merits of the application. Consequently, I find and hold that the application dated 17 th April 2026 is not res judicata the one dated 11 th March 2026.
The principle of functus officio is applied in order to prevent a situation where the court would be required to make a decision on issues it has already pronounced itself on. It is meant to ensure that there is finality in litigation at the relevant level and allow parties to move on. It was held by the Supreme Court of Kenya in Asanyo & 3 others v Attorney-General [2020] KESC 62 (KLR) that;
The doctrine of functus officio meant that the holder of adjudicative or decision- making powers could exercise them only once in relation to a particular matter. Once a decision was made it was final and conclusive and the decision-maker could not vary it.
However, the above position does not mean that the court cannot reconsider its decision or set aside its proceedings for good reasons. Otherwise, there would not have been need of enacting Order 12 Rule 7 of the Civil Procedure Rules. The defendant in this matter is not seeking to relitigate the matters which I have already made my mind on or seek to change my mind or decision. He is seeking to set aside proceedings and exercise his right to be heard. The principle of functus officio is therefore not applicable in the manner proposed by the plaintiff.
In taking the above position, I am guided by the holding of the Court of Appeal in Telkom Kenya Ltd v Ochanda (Suing on His Own Behalf and on Behalf of 996 Former Employees of Telkom Kenya Ltd) [2014] KECA 600 (KLR) where it was held that;
‘The doctrine is not to be understood to bar any engagement by a court with a case that it has already decided or pronounced itself on. What it does bar is a merit-based decisional re-engagement with the case once final judgment has been entered and a decree thereon issued. There do therefore exist certain exceptions and these have been captured thus in Jersey Evening Post Ltd Vs Ai Thani [2002] JLR 542 at 550, also cited and applied by the Supreme Court;
25.A court is functus when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded, and the court functus, when its judgment or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or alter its decision; any challenge to its ruling or adjudication must be taken to a higher court if that right is available.”
Whether or not to set aside judgment and proceedings is discretionary. The conditions the defendant must meet in order to secure such orders are well settled. In a matter of this nature, the defendant must demonstrate that he was not served with hearing notice which would entitle him to the orders as a matter of right. Judgement would also be set aside if it is demonstrated that there were good and sufficient reasons for failure to attend the hearing. Thirdly, the court will exercise its discretion in favour of the defendant if it is satisfied that the defendant has a good defence.
This matter was heard in absence of the defendant after the court was satisfied that his advocates had been properly served and the defendant has not raised the issue of service. What remains alive whether the reasons given for the defendant’s failure to attend and participate in the proceedings are sufficient and whether the defendant has a good defence to the plaintiff’s claim.
As indicated above, the sole reason given by the defendant for failure to attend and participate in the proceedings is that his counsel did not inform him of the status of the matter and that mistakes of his advocate should not be visited upon him. Other than the averments contained in the supporting affidavit, there is nothing to show that the defendant made any communication to his advocates. There is nothing to prove the alleged frustrations. The defendant has claimed that he made calls and sent massages to his advocates but no such messages or prove of calls has been demonstrated.
Whereas an advocate’s mistake should not be visited upon their innocent clients, the position remains that the case belongs to the parties and not their advocates. A litigant has a duty of following up their matters with their advocates and courts should not be quick to buy unsubstantiated averments that the party could not reach their advocates. I hold the same view as did Honourable Lady Justice F. Muchemi in Neeta Gohil v Fidelity Commercial Bank Limited [2019] KEHC 9133 (KLR) where she sated as follows;
‘ However, it is not in every case that a mistake committed by an Advocate would be a ground for setting aside orders of the Court. In Savings and Loans Limited v Susan Wanjiru Muritu Nairobi (Milimani) HCCS No. 397 of 2002 Kimaru, J expressed himself as follows: -
“Whereas it would constitute a valid excuse for the Defendant to claim that she had been let down by her former Advocates failure to attend Court on the date the application was fixed for hearing, it is trite that a case belongs to a litigant and not to her advocate. A litigant has a duty to pursue the prosecution of his or her case. The court cannot set aside dismissal of a suit on the sole ground of a mistake by counsel of the litigant on account of such advocate's failure to attend court. It is the duty of the litigant to constantly check with her advocate the progress of her case. In the present case, it is apparent that if the defendant had been a diligent litigant, she would have been aware of the dismissal of her previous application for want of prosecution soon after the said dismissal. For the defendant to be prompted to action by the plaintiff's determination to execute the decree issued in its favour, is an indictment of the defendant. She had been indolent and taking into account her past conduct in the prosecution of the application to set aside the default judgment that was dismissed by the court, it would be a travesty of justice for the court to exercise its discretion in favour of such a litigant. (emphasis added)
I hold similar view that it is not enough for a party to simply blame an advocate for a mistake but the party must show tangible steps taken by him in following up his matter.
There is no letter, email or any form of communication from the defendant to his advocates showing that he made a follow up of his case as alleged. I am left to conclude that the defendant was as indolent as his advocate if not more. He is therefore not innocent in the lapses and can therefore not be said to be an innocent litigant. If there were any lapses between the defendant and his advocates, he has a recourse against the advocates and their strained relationship if at all should not inconvenience the plaintiff who has diligently prosecuted its matter. I therefore find and hold that the reason advanced by the defendant do not convince me as justifying orders for setting aside the proceedings and judgment.
I now turn to whether I should set aside the proceedings and judgement on ground that the defendant has a good defence. The defendant has claimed that he has a good defence. I have gone through the defence and all I see is denial that he secured the employment complained of and fraudulently earned the amount claimed from the County Government of Homabay. The plaintiff’s claim in this matter was that the defendant was paid salaries for services not rendered by the said government since he was permanent employed by and worked for Kenya Medical Training College (KMTC).
Save for the aforesaid denials, the defendant has not produced, attached or exhibited any documents showing that he was not employed by KMTC or he did not earn the stated salaries. He claims that he had documents to his previous advocates but has not shown any document or draft witness statements. There is nothing that discredits, rebuts or challenges the evidence adduced by the plaintiff. I do not find the defence compelling enough to justify my discretion in favour of the defendant.
It is also my position that even where a party shows a good defence, its antecedents and conduct in the matter are material in influencing the decision of the court. It would be an abuse of the court process for a party to deliberately sit back after being served with court process and wait to make an application to set aside the proceedings on sole reason that they have a good defence. Existence of a good defence must be accompanied by good faith and sincerity. Otherwise, it will be turning court proceedings to a gamble where a party decides to avoid the court process on speculation that the matter may not go against them only to appear and flash what they consider good defence on the face of the court and demand to be heard.
I am persuaded and guided by the holding of Honourable Lady Justice M. Mbaru i n Nathan Ogada Atiagaga v David Engineering Limited [2016] KEELRC 1249 (KLR) where she stated that;
‘ Indeed the rationale to be found in the decision in Shah versus Mbogo, is that a party who acts in a manner that does not aid the course of justice should not be a beneficiary of the Court discretion.’
The conclusion of the above analysis is that, I find the application dated 17 th April 226 lacking in merit and I proceed to dismiss the same with costs.
Dated, signed and delivered at Nairobi this 18 th day of September 2026.
B.M. MUSYOKI
JUDGE OF THE HIGH COURT .
Ruling delivered in presence of Mr. Muthama holding brief for Mr. Makori for the plaintiff and Mr. Ng’ani holding brie for Mr. Adoyo foe the defendant.
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On 13 th March 2026, this court entered judgment for the plaintiff against the defendant for Kshs 10,991,712.00 plus costs of interest. The said judgment was entered after hearing the plaintiff’s three witnesses in absence of the defendant and his counsel despite the defendant having filed defence. A day before the judgment, the defendant filed an application dated 11 th March 2026 in an attempt to arrest the judgement which I dismissed for recorded reasons through a ruling dated 13 th March 2026.
After delivery of the judgment, the defendant filed a notice of motion dated 17 th April 2026 which is the subject of this ruling praying that;
1. Spent.
2. Spent.
3. That the Honourable Court be pleased to grant the firm of Ms Quinter Adoyo & Company Advocates, leave to come on record and to take over representation of the applicant/defendant in this matter, after judgment.
4. That upon hearing this application, the court be pleased to issue orders setting aside the proceedings taken ex-parte on the 15 th and 16 th December, 2025 when the main suit was heard, as well as the judgment delivered on the 13 th March 2026, and the ensuing decree.
5. That upon hearing this application, the Honourable Court be pleased to enlarge time for the applicant to file his list of witnesses, witness statements, list of documents and documents in support of the defence case.
6. That upon hearing this application, the Honourable Court be pleased to re-open the matter and set it down for hearing de-novo and inter-partes.
7. That the costs of this application be in the cause.
The application
The defendant has listed 26 grounds on which the application is based which I find repetitive of what is contained in his supporting affidavit sworn on 17 th April 2026. The summary of the grounds is that the defendant’s failure to participate in the proceedings was caused by his previous advocate’s failure to update him and that he has a good defence to the claim.
The defendant avers in the supporting affidavit that after he was served with the suit documents, he instructed the firm of Peter M. Warindu & Company Advocates who entered appearance and filed defence on 26 th September 2024 after which the counsel assured him that he would be receiving updates from time to time and that he needed not attend court every time the matter was to come for mention and he would be informed when his attendance was needed. Despite this assurance, he never received any updates or information from his advocates despite him meeting his obligations including paying legal fees.
The defendant averred further that his incessant calls to his advocates would be responded with assurances that he would be informed once the matter was ripe for hearing which information he believed. He claims to have shared all the documents necessary for his defence with his advocate and believed that he would come with his witness during the hearing because he was not informed of the need to have their statements recorded and filed.
The defendant adds that he has since discovered with the help of Gad Aguko advocate that the hearing of the matter came at a time he was indisposed and not able to sustain communications in proof of which he has attached a sick off sheet from Dr. Collins Nakhabi of Eurocity Hospital-Kisumu dated 15 th December 2025. He depones further that client-advocate relationship with his first counsel had become strained as most of his calls and messages seeking for updates went unattended which left him frustrated.
He adds that following the frustrations, he made a visit to the advocate’s last known address on 3 rd March 2026 but was unsuccessful and on 5 th March 2026, he engaged the firm of Aguko Osman and Company Advocates upon which it was established that the matter had been heard and was pending for judgment on 13 th March 2026 hence the application filed to arrest the judgment which I have mentioned at the beginning of this ruling. After the judgment, he was unable to reach the said firm despite having paid legal fees hence instructions to the current advocate.
He claims that he had a good defence to the plaintiff’s claim which was jeopardized by his previous advocate’s failure to attend court and update him. He argues that natural justice demands that a party who has expressed desire to be heard should not be condemned unheard and that going by seriousness of the case, he should be given an opportunity to present his defence.
Plaintiff’s response
The plaintiff’s investigator, Mr. Augustine Mukwekwe swore an affidavit dated 27 th April 2026 in opposition to the application. He averred that the application is materially misconceived, incompetent, an abuse of the court process and bad in law for material non-disclosure. He argues that in view of this court’s ruling dated 13 th March 2026 in which it declined to arrest judgment, the current application is res judicata. He avers further that this court is functus officio over the issue raised by the application. He believes that the application has been made for purposes of frustrating recovery of the decretal sum.
Analysis and determination
The parties filed their submissions dated 13 th May 2026 (the defendant’s) and 20 th May 2026 (the plaintiff’s). I have considered the submissions, the parties’ affidavits and documents filed therewith. Having done so, I form opinion that the issues for determination in the application are; whether the application is res judicata the defendant’s application dated 11 th March 2026; whether this court is functus officio as it relates to issues raised by the defendant and whether the defendant deserves the orders for setting aside the proceedings and judgment.
The plaintiff has claimed that the application is res judicata the defendant’s application dated 11 th March 2026. The earlier application sought the following orders;
1. THAT this Honourable Court be pleased to certify this application urgent.
2. THAT the service of this application be dispensed with in the first instance owing to the urgency of the matter.
3. THAT the Honourable Court be pleased to arrest and/or suspend the writing and delivery of its judgment on the suit herein scheduled for 13 th March, 2026 or any other day pending the hearing and determination of this application.
4. THAT the Honourable Court be pleased to issue an order granting leave to the defendant/applicant to file his list of witnesses, witness statements and list and bundle of documents out of time.
5. THAt upon grant of prayer (4) above, the Honourable Court be pleased to grant an order directing the suit herein be heard de novo.
6. THAT the costs of this application be provided for.
When this application came before me in the morning of 13 th March 2026, I in declining to grant the orders sought held that I would not go to the details of the reason advanced by the defendant by holding that;
‘I have considered the grounds of the application and reasons given in the supporting affidavit. I am not convinced that the defendant deserves the orders. The defence in this matter was filed on 26-09-2024. The defendant’s appointed advocates were served with hearing notices all through. I do not wish to say much about the sequence of events from the date of filing the defence to the date the defendant allegedly learned of the status of this matter for reason that I am considering the application ex-pate and that the parties may after my judgment present the same arguments in a possible application of different nature.
The defendant has not told the court why it took him more than a week to file this application after discovering that the matter was pending for judgment today. The application was drawn on 11 th March 2026 but the same was not filed until 12-03-2026 at 17:18 hours. This was after the court had dealt with certificates for the day and closed business. I take this as an attempt to frustrate the process of the court. The defendant still have remedies available to him after the judgment is delivered.’
It is clear from the above holding that I was concerned by the timing of the application dated 11 th March 2026 and not the merits of the reasons for the failure to attend the hearing and proceedings. It is also clear that I saved these considerations in the event of a future application like this one. Based on this, it is my view that although the first application had prayer for the matter starting de novo, the natures of the applications are different and I did not go into the merits of the application. Consequently, I find and hold that the application dated 17 th April 2026 is not res judicata the one dated 11 th March 2026.
The principle of functus officio is applied in order to prevent a situation where the court would be required to make a decision on issues it has already pronounced itself on. It is meant to ensure that there is finality in litigation at the relevant level and allow parties to move on. It was held by the Supreme Court of Kenya in Asanyo & 3 others v Attorney-General [2020] KESC 62 (KLR) that;
The doctrine of functus officio meant that the holder of adjudicative or decision- making powers could exercise them only once in relation to a particular matter. Once a decision was made it was final and conclusive and the decision-maker could not vary it.
However, the above position does not mean that the court cannot reconsider its decision or set aside its proceedings for good reasons. Otherwise, there would not have been need of enacting Order 12 Rule 7 of the Civil Procedure Rules. The defendant in this matter is not seeking to relitigate the matters which I have already made my mind on or seek to change my mind or decision. He is seeking to set aside proceedings and exercise his right to be heard. The principle of functus officio is therefore not applicable in the manner proposed by the plaintiff.
In taking the above position, I am guided by the holding of the Court of Appeal in Telkom Kenya Ltd v Ochanda (Suing on His Own Behalf and on Behalf of 996 Former Employees of Telkom Kenya Ltd) [2014] KECA 600 (KLR) where it was held that;
‘The doctrine is not to be understood to bar any engagement by a court with a case that it has already decided or pronounced itself on. What it does bar is a merit-based decisional re-engagement with the case once final judgment has been entered and a decree thereon issued. There do therefore exist certain exceptions and these have been captured thus in Jersey Evening Post Ltd Vs Ai Thani [2002] JLR 542 at 550, also cited and applied by the Supreme Court;
25.A court is functus when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded, and the court functus, when its judgment or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or alter its decision; any challenge to its ruling or adjudication must be taken to a higher court if that right is available.”
Whether or not to set aside judgment and proceedings is discretionary. The conditions the defendant must meet in order to secure such orders are well settled. In a matter of this nature, the defendant must demonstrate that he was not served with hearing notice which would entitle him to the orders as a matter of right. Judgement would also be set aside if it is demonstrated that there were good and sufficient reasons for failure to attend the hearing. Thirdly, the court will exercise its discretion in favour of the defendant if it is satisfied that the defendant has a good defence.
This matter was heard in absence of the defendant after the court was satisfied that his advocates had been properly served and the defendant has not raised the issue of service. What remains alive whether the reasons given for the defendant’s failure to attend and participate in the proceedings are sufficient and whether the defendant has a good defence to the plaintiff’s claim.
As indicated above, the sole reason given by the defendant for failure to attend and participate in the proceedings is that his counsel did not inform him of the status of the matter and that mistakes of his advocate should not be visited upon him. Other than the averments contained in the supporting affidavit, there is nothing to show that the defendant made any communication to his advocates. There is nothing to prove the alleged frustrations. The defendant has claimed that he made calls and sent massages to his advocates but no such messages or prove of calls has been demonstrated.
Whereas an advocate’s mistake should not be visited upon their innocent clients, the position remains that the case belongs to the parties and not their advocates. A litigant has a duty of following up their matters with their advocates and courts should not be quick to buy unsubstantiated averments that the party could not reach their advocates. I hold the same view as did Honourable Lady Justice F. Muchemi in Neeta Gohil v Fidelity Commercial Bank Limited [2019] KEHC 9133 (KLR) where she sated as follows;
‘ However, it is not in every case that a mistake committed by an Advocate would be a ground for setting aside orders of the Court. In Savings and Loans Limited v Susan Wanjiru Muritu Nairobi (Milimani) HCCS No. 397 of 2002 Kimaru, J expressed himself as follows: -
“Whereas it would constitute a valid excuse for the Defendant to claim that she had been let down by her former Advocates failure to attend Court on the date the application was fixed for hearing, it is trite that a case belongs to a litigant and not to her advocate. A litigant has a duty to pursue the prosecution of his or her case. The court cannot set aside dismissal of a suit on the sole ground of a mistake by counsel of the litigant on account of such advocate's failure to attend court. It is the duty of the litigant to constantly check with her advocate the progress of her case. In the present case, it is apparent that if the defendant had been a diligent litigant, she would have been aware of the dismissal of her previous application for want of prosecution soon after the said dismissal. For the defendant to be prompted to action by the plaintiff's determination to execute the decree issued in its favour, is an indictment of the defendant. She had been indolent and taking into account her past conduct in the prosecution of the application to set aside the default judgment that was dismissed by the court, it would be a travesty of justice for the court to exercise its discretion in favour of such a litigant. (emphasis added)
I hold similar view that it is not enough for a party to simply blame an advocate for a mistake but the party must show tangible steps taken by him in following up his matter.
There is no letter, email or any form of communication from the defendant to his advocates showing that he made a follow up of his case as alleged. I am left to conclude that the defendant was as indolent as his advocate if not more. He is therefore not innocent in the lapses and can therefore not be said to be an innocent litigant. If there were any lapses between the defendant and his advocates, he has a recourse against the advocates and their strained relationship if at all should not inconvenience the plaintiff who has diligently prosecuted its matter. I therefore find and hold that the reason advanced by the defendant do not convince me as justifying orders for setting aside the proceedings and judgment.
I now turn to whether I should set aside the proceedings and judgement on ground that the defendant has a good defence. The defendant has claimed that he has a good defence. I have gone through the defence and all I see is denial that he secured the employment complained of and fraudulently earned the amount claimed from the County Government of Homabay. The plaintiff’s claim in this matter was that the defendant was paid salaries for services not rendered by the said government since he was permanent employed by and worked for Kenya Medical Training College (KMTC).
Save for the aforesaid denials, the defendant has not produced, attached or exhibited any documents showing that he was not employed by KMTC or he did not earn the stated salaries. He claims that he had documents to his previous advocates but has not shown any document or draft witness statements. There is nothing that discredits, rebuts or challenges the evidence adduced by the plaintiff. I do not find the defence compelling enough to justify my discretion in favour of the defendant.
It is also my position that even where a party shows a good defence, its antecedents and conduct in the matter are material in influencing the decision of the court. It would be an abuse of the court process for a party to deliberately sit back after being served with court process and wait to make an application to set aside the proceedings on sole reason that they have a good defence. Existence of a good defence must be accompanied by good faith and sincerity. Otherwise, it will be turning court proceedings to a gamble where a party decides to avoid the court process on speculation that the matter may not go against them only to appear and flash what they consider good defence on the face of the court and demand to be heard.
I am persuaded and guided by the holding of Honourable Lady Justice M. Mbaru i n Nathan Ogada Atiagaga v David Engineering Limited [2016] KEELRC 1249 (KLR) where she stated that;
‘ Indeed the rationale to be found in the decision in Shah versus Mbogo, is that a party who acts in a manner that does not aid the course of justice should not be a beneficiary of the Court discretion.’
The conclusion of the above analysis is that, I find the application dated 17 th April 226 lacking in merit and I proceed to dismiss the same with costs.
Dated, signed and delivered at Nairobi this 18 th day of September 2026.
B.M. MUSYOKI
JUDGE OF THE HIGH COURT .
Ruling delivered in presence of Mr. Muthama holding brief for Mr. Makori for the plaintiff and Mr. Ng’ani holding brie for Mr. Adoyo foe the defendant.
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