1. This ruling seeks to determine the defendants’ application dated 15 November 2025, expressed to have been moved within the provisions of Order 51 Rule 1 of the Civil Procedure Rules, 2010, Sections 1A, 1B and 3A of the Civil Procedure Act, and all other enabling provisions of the law and seek the following orders: -
a) Spent.
b) Spent.
c) THAT this honourable court be pleased to set aside the proceedings herein taken on 30th September, 2025, when the plaintiff's case was heard and closed, and the defendant's case was closed unheard.
d) THAT this honourable court be pleased to re-open the plaintiff's case and the plaintiff's witnesses be recalled to adduce evidence and the defendant's advocates be at liberty to cross-examine the plaintiff's witnesses.
e) THAT this honourable court be pleased to reopen the defendant's case and the defendant to call their witnesses and/or to tender evidence in support of their case, and the plaintiff's advocates be at liberty to cross-examine the defence witnesses.
f) THAT the costs of this application be provided for.
2. The motion is supported by grounds on the face of it and by the supporting affidavit deposed on 25 November 2025 by counsel, Mr. Alex Masake, who has described himself as from the law firm of Ms. Wangusi I.N. Advocates, on record for the defendants. Succinctly, the court is informed that the instant suit was scheduled for hearing on 30 September 2025 and on that day, the parties’ cases were heard and closed. However, the defendants did not have an opportunity to be heard because their counsel had a medical emergency and was attending to his critically ill mother.
3. That counsel, Ms. Nakhanu, was requested to hold brief and inform the court of this predicament, as the firm's associate, Ms Wangusi, was also bereaved. Nonetheless, due to a network breakdown, Ms. Nakhanu joined the court session after the matter had already been called out and directions for a physical hearing had been issued.
4. Concerning Ms. Nakhanu, it was stated that since she was in Nairobi and had just received instructions that morning, she could not reach Machakos in time for the hearing. She contacted the plaintiff's counsel to explain the situation and request an indulgence. Despite knowing about the defendants' counsel's predicament, the plaintiff's counsel chose to proceed with the hearing ex-parte which greatly prejudiced the defendants. He states that a party should not suffer because of an advocate's mistake.
5. The plaintiff, via the lengthy replying affidavit of counsel Ms. Karen Muthee, sworn on 19 January 2026, opposed the motion. Concisely, the plaintiff’s counsel contends that the defendants repeatedly sought adjournments and ultimately failed to have representation at the hearing on September 30, 2025. She asserts that although the defendants cited a bereavement and medical reasons for their absence, the plaintiff argues these excuses do not substantiate reasons why the matter could not take off on the scheduled date and that it was not the plaintiff’s duty to seek an adjournment for the defendants.
6. Further, she states that the defendants waited nearly two months before applying to set aside the proceedings, implying this was a calculated move to delay the case rather than a genuine response to a grievance.
7. Despite court directions, the defendants, who have repeatedly failed to attend court despite duly receiving notice from the court and plaintiff’s counsel, neglected to file their written submissions. Consequently, the plaintiff’s law firm on record, Ms. Muriu, Mungai & Co. Advocates LLP, proceeded to file their written submissions dated 19 May 2022 without having regard to any submissions from the defendants. As of the time of writing this decision, the defendants have not filed any submissions; therefore, the court infers that they do not intend to do so. Should the defendants file any submissions, they shall be deemed filed out of time and shall be struck out without reference to the court.
8. Accordingly, having considered the motion, grounds, affidavits together with annexures, plaintiff’s submissions, the provisions of law, and the judicial precedents, this court adopts the issue as framed in the plaintiff’s submissions, which is whether this court should exercise its discretion and set aside the proceedings of 1st October 2025, re-open the hearing, and recall the plaintiff's witnesses. Thus, we will now proceed to analyse and determine this issue.
9. In resolving this matter, the court will examine the relevant legal provisions authorising the setting aside of proceedings and recalling witnesses. Concerning the law on the former, the relevant statutory provision is found in our Order 12, Rule 7 of the Civil Procedure Rules, which stipulates that where a judgment has been entered, or the suit dismissed, the court, upon application, may set aside or vary the judgment or order on such terms as are just. Consequently, the motion is properly presented before this court. Regarding the latter, the pertinent legal provision is Section 146(4) of the Evidence Act, which authorises the court to recall a witness for additional examination-in-chief or further cross-examination. This provision is mirrored in our Order 18, Rule 10 of the Civil Procedure Rules (CPR), which also authorises the court to pose questions to a witness.
10. As submitted by the plaintiff’s counsel, the court’s powers under the Civil Procedure Rules and the Evidence Act are discretionary. It is well established that these powers must be exercised judiciously and not arbitrarily. The Court of Appeal clarified the importance of exercising these discretionary powers carefully in Patriotic Guards Ltd v James Kipchirchir Sambu, Nairobi CA No. 20 of 2016, (2018)eKLR as follows:-
“It is settled law that whenever a court is called upon to exercise its discretion, it must do so judiciously and not on caprice, whim, likes or dislikes. Judicious because the discretion to be exercised is judicial power derived from the law and as opposed to a judge’s private affection or will. Being so, it must be exercised upon certain legal principles and according to the circumstances of each case and the paramount need by court to do real and substantial justice to the parties in a suit.”
11. The jurisprudence that guides this court in the exercise of judicious discretion in dealing with such motions is settled, and the decision of Shah v Mbogo and Another [1967] EA 116 Limited [2020] eKLR, which was cited with approval in the case of John Waweru Njenga & 5 others v Motor Botique, detailed the guiding principles as follows: -
“This discretion (to set aside ex parte Court decisions) is intended 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.”
12. In this case, Mr. Masake has articulated several reasons explaining why neither he, Ms. Wangusi, nor Ms. Nakhanu attended court on 30 September 2025, supported by various documents.
13. However, without delving extensively into these documents, it is observed that all these counsel are affiliated with the law firm of Ms. Wangusi I.N. Advocates, purportedly acting on record for the defendants, despite the application being prepared by Ms. Shabaan Associates LLP, which is on record for the defendants having taken over this matter from the previous law firm. It is the view of this court that it is untenable for a law firm not on record for a party to advance reasons for their non-attendance in a matter they are strangers to.
14. Neither counsel from Ms. Shabaan Associates LLP nor the defendants have explained their absence from the court on 30 September 2025 and for these reasons, this court finds that the application does not meet the legal threshold to warrant the exercise of discretion in their favour. Moreover, if Ms. Wangusi I.N. Advocates had taken over the conduct of this matter from Ms. Shabaan Associates LLP, as Mr. Masake appears to be common to both, appropriate notice of the change of advocates should have been filed as envisaged by law, rather than one filing the application and another making depositions.
15. As it concludes, this court observes that the conduct of the defendants in prosecuting this matter has been significantly deficient, characterised by deliberate delays in prosecuting the case during hearings, absences despite proper notices, and non-compliance with court directives. The record demonstrates that on 18 March 2023, during a scheduled hearing, the defendants' then-counsel stated that he had ceased to act for the defendants. Subsequently, the law firm of Ms. Hassan Bulle & Co. Advocates took the matter, and on or before the next hearing date of 1 October 2024, Ms. Shabaan Associates LLP filed a notice of change of advocates. At the date of the said hearing, Mr Masake stated that he had recently taken over the case and requested additional time to file documents, which was granted for 21 days but again, was not observed.
16. At the subsequent hearing on 1 April 2026, Mr. Masake informed the court of a bereavement, and the court granted an indulgence, rescheduling the hearing for 30 September 2025, but there was non-attendance. Throughout these proceedings, neither the defendants nor their witnesses have appeared in court, despite the case being their responsibility. This court need not say more.
17. Ultimately, guided by the law and judicial precedents, and in agreement with the plaintiff’s counsel, this court finds the motion dated 15 November 2025 not merited. It is dismissed with costs being in the cause.
It is so ordered.
Delivered and Dated at Machakos this 22nd day of September, 2026.
HON. A. Y. KOROSS
JUDGE
22.09.2026
Ruling delivered virtually through Microsoft Teams Video Conferencing Platform;
In the presence of;
Ms. Kanja Court Assistant.
Ms Muthee for the plaintiff/respondent.
Miss Mbua for Mr. Masake for the defendant.
a) Spent.
b) Spent.
c) THAT this honourable court be pleased to set aside the proceedings herein taken on 30th September, 2025, when the plaintiff's case was heard and closed, and the defendant's case was closed unheard.
d) THAT this honourable court be pleased to re-open the plaintiff's case and the plaintiff's witnesses be recalled to adduce evidence and the defendant's advocates be at liberty to cross-examine the plaintiff's witnesses.
e) THAT this honourable court be pleased to reopen the defendant's case and the defendant to call their witnesses and/or to tender evidence in support of their case, and the plaintiff's advocates be at liberty to cross-examine the defence witnesses.
f) THAT the costs of this application be provided for.
2. The motion is supported by grounds on the face of it and by the supporting affidavit deposed on 25 November 2025 by counsel, Mr. Alex Masake, who has described himself as from the law firm of Ms. Wangusi I.N. Advocates, on record for the defendants. Succinctly, the court is informed that the instant suit was scheduled for hearing on 30 September 2025 and on that day, the parties’ cases were heard and closed. However, the defendants did not have an opportunity to be heard because their counsel had a medical emergency and was attending to his critically ill mother.
3. That counsel, Ms. Nakhanu, was requested to hold brief and inform the court of this predicament, as the firm's associate, Ms Wangusi, was also bereaved. Nonetheless, due to a network breakdown, Ms. Nakhanu joined the court session after the matter had already been called out and directions for a physical hearing had been issued.
4. Concerning Ms. Nakhanu, it was stated that since she was in Nairobi and had just received instructions that morning, she could not reach Machakos in time for the hearing. She contacted the plaintiff's counsel to explain the situation and request an indulgence. Despite knowing about the defendants' counsel's predicament, the plaintiff's counsel chose to proceed with the hearing ex-parte which greatly prejudiced the defendants. He states that a party should not suffer because of an advocate's mistake.
5. The plaintiff, via the lengthy replying affidavit of counsel Ms. Karen Muthee, sworn on 19 January 2026, opposed the motion. Concisely, the plaintiff’s counsel contends that the defendants repeatedly sought adjournments and ultimately failed to have representation at the hearing on September 30, 2025. She asserts that although the defendants cited a bereavement and medical reasons for their absence, the plaintiff argues these excuses do not substantiate reasons why the matter could not take off on the scheduled date and that it was not the plaintiff’s duty to seek an adjournment for the defendants.
6. Further, she states that the defendants waited nearly two months before applying to set aside the proceedings, implying this was a calculated move to delay the case rather than a genuine response to a grievance.
7. Despite court directions, the defendants, who have repeatedly failed to attend court despite duly receiving notice from the court and plaintiff’s counsel, neglected to file their written submissions. Consequently, the plaintiff’s law firm on record, Ms. Muriu, Mungai & Co. Advocates LLP, proceeded to file their written submissions dated 19 May 2022 without having regard to any submissions from the defendants. As of the time of writing this decision, the defendants have not filed any submissions; therefore, the court infers that they do not intend to do so. Should the defendants file any submissions, they shall be deemed filed out of time and shall be struck out without reference to the court.
8. Accordingly, having considered the motion, grounds, affidavits together with annexures, plaintiff’s submissions, the provisions of law, and the judicial precedents, this court adopts the issue as framed in the plaintiff’s submissions, which is whether this court should exercise its discretion and set aside the proceedings of 1st October 2025, re-open the hearing, and recall the plaintiff's witnesses. Thus, we will now proceed to analyse and determine this issue.
9. In resolving this matter, the court will examine the relevant legal provisions authorising the setting aside of proceedings and recalling witnesses. Concerning the law on the former, the relevant statutory provision is found in our Order 12, Rule 7 of the Civil Procedure Rules, which stipulates that where a judgment has been entered, or the suit dismissed, the court, upon application, may set aside or vary the judgment or order on such terms as are just. Consequently, the motion is properly presented before this court. Regarding the latter, the pertinent legal provision is Section 146(4) of the Evidence Act, which authorises the court to recall a witness for additional examination-in-chief or further cross-examination. This provision is mirrored in our Order 18, Rule 10 of the Civil Procedure Rules (CPR), which also authorises the court to pose questions to a witness.
10. As submitted by the plaintiff’s counsel, the court’s powers under the Civil Procedure Rules and the Evidence Act are discretionary. It is well established that these powers must be exercised judiciously and not arbitrarily. The Court of Appeal clarified the importance of exercising these discretionary powers carefully in Patriotic Guards Ltd v James Kipchirchir Sambu, Nairobi CA No. 20 of 2016, (2018)eKLR as follows:-
“It is settled law that whenever a court is called upon to exercise its discretion, it must do so judiciously and not on caprice, whim, likes or dislikes. Judicious because the discretion to be exercised is judicial power derived from the law and as opposed to a judge’s private affection or will. Being so, it must be exercised upon certain legal principles and according to the circumstances of each case and the paramount need by court to do real and substantial justice to the parties in a suit.”
11. The jurisprudence that guides this court in the exercise of judicious discretion in dealing with such motions is settled, and the decision of Shah v Mbogo and Another [1967] EA 116 Limited [2020] eKLR, which was cited with approval in the case of John Waweru Njenga & 5 others v Motor Botique, detailed the guiding principles as follows: -
“This discretion (to set aside ex parte Court decisions) is intended 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.”
12. In this case, Mr. Masake has articulated several reasons explaining why neither he, Ms. Wangusi, nor Ms. Nakhanu attended court on 30 September 2025, supported by various documents.
13. However, without delving extensively into these documents, it is observed that all these counsel are affiliated with the law firm of Ms. Wangusi I.N. Advocates, purportedly acting on record for the defendants, despite the application being prepared by Ms. Shabaan Associates LLP, which is on record for the defendants having taken over this matter from the previous law firm. It is the view of this court that it is untenable for a law firm not on record for a party to advance reasons for their non-attendance in a matter they are strangers to.
14. Neither counsel from Ms. Shabaan Associates LLP nor the defendants have explained their absence from the court on 30 September 2025 and for these reasons, this court finds that the application does not meet the legal threshold to warrant the exercise of discretion in their favour. Moreover, if Ms. Wangusi I.N. Advocates had taken over the conduct of this matter from Ms. Shabaan Associates LLP, as Mr. Masake appears to be common to both, appropriate notice of the change of advocates should have been filed as envisaged by law, rather than one filing the application and another making depositions.
15. As it concludes, this court observes that the conduct of the defendants in prosecuting this matter has been significantly deficient, characterised by deliberate delays in prosecuting the case during hearings, absences despite proper notices, and non-compliance with court directives. The record demonstrates that on 18 March 2023, during a scheduled hearing, the defendants' then-counsel stated that he had ceased to act for the defendants. Subsequently, the law firm of Ms. Hassan Bulle & Co. Advocates took the matter, and on or before the next hearing date of 1 October 2024, Ms. Shabaan Associates LLP filed a notice of change of advocates. At the date of the said hearing, Mr Masake stated that he had recently taken over the case and requested additional time to file documents, which was granted for 21 days but again, was not observed.
16. At the subsequent hearing on 1 April 2026, Mr. Masake informed the court of a bereavement, and the court granted an indulgence, rescheduling the hearing for 30 September 2025, but there was non-attendance. Throughout these proceedings, neither the defendants nor their witnesses have appeared in court, despite the case being their responsibility. This court need not say more.
17. Ultimately, guided by the law and judicial precedents, and in agreement with the plaintiff’s counsel, this court finds the motion dated 15 November 2025 not merited. It is dismissed with costs being in the cause.
It is so ordered.
Delivered and Dated at Machakos this 22nd day of September, 2026.
HON. A. Y. KOROSS
JUDGE
22.09.2026
Ruling delivered virtually through Microsoft Teams Video Conferencing Platform;
In the presence of;
Ms. Kanja Court Assistant.
Ms Muthee for the plaintiff/respondent.
Miss Mbua for Mr. Masake for the defendant.