REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
JUDICIAL REVIEW NO. E011 OF 2024
IN THE MATTER OF AN APPLICATION FOR LEAVE BY LYDIA NAMONO TO APPLY FOR ORDERS OF PROHIBITION AND MANDAMUS
AND
IN THE MATTER OF ARTICLE 2(1) AND 2(2), 10,19,20,21,22,23,25 (c), 47, 50 AND 159 OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF SECTIONS 4(1), (2) AND (3), 6, 7 AND 9 (1) OF THE FAIR ADMINISTRATIVE ACTION ACT NO. 4 OF 2015
AND
IN THE MATTER OF SECTION 56 AND 58 OF THE TRAFFIC ACT CAP 403 LAWS OF KENYA
AND
IN THE MATTER OF ORDER 53 OF THE CIVIL PROCEDURE RULES, 2010
AND
IN THE MATTER OF SECTIONS 8 AND 9 OF THE LAW REFORM ACT CAP 26 LAWS OF KENYA
AND
IN THE MATTER OF THE IMPOSITION OF A FINE FOR AN ALLEGED OFFENCE WITHOUT TRIAL
BETWEEN
REPUBLIC…………………………………………………………………….APPLICANT
VERSUS
THE KENYA NATIONAL HIGHWAYS AUTHORITY (KENHA)………………………………………………………………….…RESPONDENT
AND
LYDIA NAMONO…………………………………………….EXPARTE APPLICANT
R U L I N G
1. On 20.2.2025 this court allowed the ex parte applicant’s notice of motion dated 27.11.2024 and issued orders of mandamus directed at the respondent herein, who had failed to attend court nor file a response to the said application.
Application:
2. Subsequently the respondent moved this court vide a Notice of Motion dated 25.2.2025, brought under the provisions of Sections 1A, 1B, 3 and 3A of the Civil Procedure Act and supported by the affidavits of Tobias Ayako Kapinde and Jude Ragot sworn on even date and she craved for the following orders:
1. Spent
2. Spent
3. THAT this Honourable court be pleased to set aside the Ex parte ruling and/or order of Mandamus dated 20.2.2025.
4. THAT this court be pleased to allow the Respondent have this matter determined on it’s merit.
5. THAT the costs of this application be provided for.
3. The application is premised on the ground that on the material day this matter was cause listed before Justice Kemei as item No. 6 and whereas one Tobias Ayako Kapinde who was then holding brief for Mr. Jade Ragot duly appeared before Justice Kemei, this matter was never called out and upon counsel making inquiry to the Honoruable Justice Kemei at 2 p.m. after the judge had concluded his matters, the Hon. Judge informed him that there was a confusion in cause listing the matter before Justice Kemei who was then siting in Siaya and not in Bungoma. Further that Justice Kemei then advised Mr. Tobias Ayaka Kapinde that the Civil Registry in Bungoma was going to issue fresh dates in the event that the said confusion could have been caused by the indisposition of the trial judge.
4. The respondent’s advocates depose that they placed reliance on the said advice given to them by Justice Kemei and they communicated as much to their client and forwarded draft replying affidavit for their client’s approval and signing. The respondents advocate state that they were jolted into making the current application on 25.2.2025 when a demand letter was served upon them by counsel for the exparte applicant, requiring compliance with the orders of mandamus.
Response:
5. The ex-parte applicant has resisted this application by way of an affidavit in reply sworn by Lydia Namono on 28.2.2025.
The respondent maintains that this application is devoid of merit as the respondent failed to file any responses to her substantive motion despite being given time by the court. Further that all parties herein were aware of the transfer of Justice Kemei from Bungoma to Siaya High Court wherefore the failure by the respondent’s advocates to attend court on 20.2.2025 was deliberate and inexcusable.
Analysis and determination.
6. This application was canvased by way of oral submissions. This court has considered the application, the supporting affidavits of the respondent’s counsels, and the enclosures thereto and the replying affidavit with its annexures. The rival submissions of parties have also been considered and the issues that emerge for determination are whether the respondent has made out a case for setting aside the orders of mandamus made exparte on 20.2.2025 and if the answer is in the affirmative then whether it ought be allowed to defend the ex parte applicants Notice of motion dated 27.11.2025. The final issue is who should bear the costs of this application.
7. I have perused the cause lists of Bungoma High Court of the 20th of February 2025 and I do confirm that indeed this matter was cause listed as item No.6 before Justice Kemei in a court list titled Bungoma High Court NO. 1. This is an apparent error that mandates this court to make appropriate remedial orders ex debito justicae. I do find that indeed the respondent’s counsel was misled by the cause list posted in Kenya Law. The rights of the respondent to a fair hearing as envisaged under article 50 of the Constitution of Kenya 2010 have been infringed and it is only fair and just that the respondent be accorded an opportunity to be heard. I do disagree with the ex parte applicant’s position that the application herein is devoid of merit.
8. Premised upon the matters aforesaid I do find that the respondent has made out a case for setting aside of the ex parte orders of mandamus made on 20.2.2025.
9. It is also instructive to note that had the respondent’s advocates attended court on 20.2.2025, there is a high probability that the court would not have granted the ex parte orders.
10. On the balance I do hereby allow the application herein and I proceed to make the following orders.
1. The orders of mandamus granted herein on 20.2.2025 are hereby set side.
2. The ex parte applicant’s Notice of Motion dated 27.11.2024 shall be heard and determined on merit
3. The respondent’s replying affidavits’ witness statements and documents filed herein are hereby deemed as timeously filed and in the event that court fees have not been paid, then the respondent shall pay for the same.
4. The ex parte applicant is hereby granted leave to file a supplementary affidavit if need be within 7 days from the date hereof.
5. The ex parte applicant is awarded costs of this application assessed at Kshs 15,000 payable within 30 days from the date hereof and in default execution to issue.
6. The ex parte applicant is directed to file and serve submissions to her Notice of Motion dated 27.11.2024 within 21 days from the date hereof and the respondent to do so within 35 days from the date hereof.
7. Mention on 18.6.2025 to confirm compliance.
Delivered, signed, and dated at Bungoma this 26th day of March
2025.
MWANAISHA S. SHARIFF
JUDGE.
IN THE HIGH COURT OF KENYA AT BUNGOMA
JUDICIAL REVIEW NO. E011 OF 2024
IN THE MATTER OF AN APPLICATION FOR LEAVE BY LYDIA NAMONO TO APPLY FOR ORDERS OF PROHIBITION AND MANDAMUS
AND
IN THE MATTER OF ARTICLE 2(1) AND 2(2), 10,19,20,21,22,23,25 (c), 47, 50 AND 159 OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF SECTIONS 4(1), (2) AND (3), 6, 7 AND 9 (1) OF THE FAIR ADMINISTRATIVE ACTION ACT NO. 4 OF 2015
AND
IN THE MATTER OF SECTION 56 AND 58 OF THE TRAFFIC ACT CAP 403 LAWS OF KENYA
AND
IN THE MATTER OF ORDER 53 OF THE CIVIL PROCEDURE RULES, 2010
AND
IN THE MATTER OF SECTIONS 8 AND 9 OF THE LAW REFORM ACT CAP 26 LAWS OF KENYA
AND
IN THE MATTER OF THE IMPOSITION OF A FINE FOR AN ALLEGED OFFENCE WITHOUT TRIAL
BETWEEN
REPUBLIC…………………………………………………………………….APPLICANT
VERSUS
THE KENYA NATIONAL HIGHWAYS AUTHORITY (KENHA)………………………………………………………………….…RESPONDENT
AND
LYDIA NAMONO…………………………………………….EXPARTE APPLICANT
R U L I N G
1. On 20.2.2025 this court allowed the ex parte applicant’s notice of motion dated 27.11.2024 and issued orders of mandamus directed at the respondent herein, who had failed to attend court nor file a response to the said application.
Application:
2. Subsequently the respondent moved this court vide a Notice of Motion dated 25.2.2025, brought under the provisions of Sections 1A, 1B, 3 and 3A of the Civil Procedure Act and supported by the affidavits of Tobias Ayako Kapinde and Jude Ragot sworn on even date and she craved for the following orders:
1. Spent
2. Spent
3. THAT this Honourable court be pleased to set aside the Ex parte ruling and/or order of Mandamus dated 20.2.2025.
4. THAT this court be pleased to allow the Respondent have this matter determined on it’s merit.
5. THAT the costs of this application be provided for.
3. The application is premised on the ground that on the material day this matter was cause listed before Justice Kemei as item No. 6 and whereas one Tobias Ayako Kapinde who was then holding brief for Mr. Jade Ragot duly appeared before Justice Kemei, this matter was never called out and upon counsel making inquiry to the Honoruable Justice Kemei at 2 p.m. after the judge had concluded his matters, the Hon. Judge informed him that there was a confusion in cause listing the matter before Justice Kemei who was then siting in Siaya and not in Bungoma. Further that Justice Kemei then advised Mr. Tobias Ayaka Kapinde that the Civil Registry in Bungoma was going to issue fresh dates in the event that the said confusion could have been caused by the indisposition of the trial judge.
4. The respondent’s advocates depose that they placed reliance on the said advice given to them by Justice Kemei and they communicated as much to their client and forwarded draft replying affidavit for their client’s approval and signing. The respondents advocate state that they were jolted into making the current application on 25.2.2025 when a demand letter was served upon them by counsel for the exparte applicant, requiring compliance with the orders of mandamus.
Response:
5. The ex-parte applicant has resisted this application by way of an affidavit in reply sworn by Lydia Namono on 28.2.2025.
The respondent maintains that this application is devoid of merit as the respondent failed to file any responses to her substantive motion despite being given time by the court. Further that all parties herein were aware of the transfer of Justice Kemei from Bungoma to Siaya High Court wherefore the failure by the respondent’s advocates to attend court on 20.2.2025 was deliberate and inexcusable.
Analysis and determination.
6. This application was canvased by way of oral submissions. This court has considered the application, the supporting affidavits of the respondent’s counsels, and the enclosures thereto and the replying affidavit with its annexures. The rival submissions of parties have also been considered and the issues that emerge for determination are whether the respondent has made out a case for setting aside the orders of mandamus made exparte on 20.2.2025 and if the answer is in the affirmative then whether it ought be allowed to defend the ex parte applicants Notice of motion dated 27.11.2025. The final issue is who should bear the costs of this application.
7. I have perused the cause lists of Bungoma High Court of the 20th of February 2025 and I do confirm that indeed this matter was cause listed as item No.6 before Justice Kemei in a court list titled Bungoma High Court NO. 1. This is an apparent error that mandates this court to make appropriate remedial orders ex debito justicae. I do find that indeed the respondent’s counsel was misled by the cause list posted in Kenya Law. The rights of the respondent to a fair hearing as envisaged under article 50 of the Constitution of Kenya 2010 have been infringed and it is only fair and just that the respondent be accorded an opportunity to be heard. I do disagree with the ex parte applicant’s position that the application herein is devoid of merit.
8. Premised upon the matters aforesaid I do find that the respondent has made out a case for setting aside of the ex parte orders of mandamus made on 20.2.2025.
9. It is also instructive to note that had the respondent’s advocates attended court on 20.2.2025, there is a high probability that the court would not have granted the ex parte orders.
10. On the balance I do hereby allow the application herein and I proceed to make the following orders.
1. The orders of mandamus granted herein on 20.2.2025 are hereby set side.
2. The ex parte applicant’s Notice of Motion dated 27.11.2024 shall be heard and determined on merit
3. The respondent’s replying affidavits’ witness statements and documents filed herein are hereby deemed as timeously filed and in the event that court fees have not been paid, then the respondent shall pay for the same.
4. The ex parte applicant is hereby granted leave to file a supplementary affidavit if need be within 7 days from the date hereof.
5. The ex parte applicant is awarded costs of this application assessed at Kshs 15,000 payable within 30 days from the date hereof and in default execution to issue.
6. The ex parte applicant is directed to file and serve submissions to her Notice of Motion dated 27.11.2024 within 21 days from the date hereof and the respondent to do so within 35 days from the date hereof.
7. Mention on 18.6.2025 to confirm compliance.
Delivered, signed, and dated at Bungoma this 26th day of March
2025.
MWANAISHA S. SHARIFF
JUDGE.