Introduction
1. Before court is a notice of motion dated 8th December 2025 filed by the defendant seeking orders that the plaintiff’s suit be reopened for purposes of cross examination by the defendant and the defendant’s case be reopened to allow the defendant to tender its evidence in court.
2. The application is anchored on the supporting affidavit sworn by one Vincent Kemosi Mogaka, counsel for the defendant. The applicant’s case is that on the morning of the hearing date of 11th November 2025, counsel for the defendant abruptly fell ill, was unable to attend court and was unable to find counsel to hold brief in view of the limited timelines.
3. That it has a triable defence against the plaintiff’s claim for payment of the sum of Kshs. 10, 838, 727/=, which amount will be required from public funds, if the defendant is condemned unheard. He attached a medical report and statement of defence.
4. The application was opposed. The plaintiff filed replying affidavit dated 20th February 2026. He stated that the application is an abuse of the court process as there is no basis to grant the orders sought. That the hearing date was fixed by consent on 2nd October 2025 in the presence of both counsel. That the application was an afterthought having been filed a month after the hearing and the inordinate delay is not explained. That no proof of obtaining alternative legal representation was demonstrated and that he should not suffer the applicant’s counsel’s inefficiencies.
5. Further that the medical report produced by counsel was fraudulent and a forgery. That the author thereof is not a licensed medical practitioner and not qualified to practice medicine in Kenya. That Victory Health Care is not a licensed or a registered health facility by the Kenya Medical Practitioners and Dentists Council, hence the same cannot be proof of the applicant’s counsel’s allegation of being indisposed.
6. That the applicant is misleading the court deliberately so as to obtain orders by fraud. That the defence is a sham. That reopening the suit will occasion injustice on the part of the plaintiff. He produced correspondence from the Kenya Medical Practitioners and Dentists Council stating that no facility called Victory Health Care- Ukunda was registered and no medical doctor called Luke Stanley was registered by the Council.
7. The plaintiff also filed grounds of opposition dated 4th February 2026. He stated that the application was an afterthought having been filed a month after the hearing. Further that there were no efforts to get legal representation demonstrated by counsel and that the defence is a sham and the application being an abuse of the court process has been overtaken.
8. The plaintiff filed submissions dated 16th March 2026; which the court has duly considered.
Analysis and determination.
9. This court has carefully considered the application, response thereto and submissions. The only issue that arise for determination is whether the applicant deserves the orders sought.
10. Order 51 Rule 15 of the Civil Procedure Rules grants this court jurisdiction to set aside ex parte orders and provides as follows;
“The court may set aside an order made ex parte”
11. The discretion to set aside an ex parte order must be exercised judiciously and not whimsically. In the case of Shah v Mbogo (1968) EA the court held that the discretion to set aside an ex parte order should not be exercised to assist a party to delay or obstruct the course of justice but where there is an inadvertent mistake, the same is meant to assist the party access justice. In setting aside ex parte proceedings, the court considers the regularity of the proceedings and whether the defence raises a triable defence.
12. On whether the proceedings herein of 11th November 2025 were regular, the record shows that the said hearing date was taken by consent. The defendant’s counsel argued that he was abruptly taken ill on the morning of the hearing date and was unable to get alternative representation to hold brief. He produced what was referred to as a medical report from Victory Health Care – Ukunda.
13. On his part, the plaintiff presented evidence from the Kenya Medical and Dentists Practitioners Council showing that no such doctor or health facility is registered with them. The plaintiff maintained that the medical notes were forgeries. No rejoinder was made to this assertion.
14. I have considered the evidence on record and no evidence is available to show that there is a doctor called Luke Stanley or that a medical facility called Victory Health Care in Ukunda exists, and therefore, I am satisfied that the medical report produced by Mr. Vincent Kemosi Mogaka Advocate is a forgery. That being the case, there is no plausible reason or basis for the plaintiff’s counsel’s non-attendance at the trial on 11th November 2025.
15. I have considered the defence. Without getting into the merits thereof, I am satisfied that the defence raises triable issues, and it will be in the interests of justice that the defendant is granted opportunity to be heard.
16. The plaintiff attended court on 11th November 2025, when the case proceeded and the plaintiff closed his case. Six months have now passed. The plaintiff spent time and resources to attend court. Reopening the case will prejudice him to the extend that there will be lost time and resources. That can be compensated by an award of thrown away costs. Mr. Mogaga has not told this court whether he informed his client the defendant herein about his non-attendance and or the reason thereof.
17. In view of the fact that Mr. Mogaka’s non-attendance is not based on any excusable reason, and considering that the documents he availed before this court are forgeries, it is only fair and just that his client whose liability may result in the use of public funds, be availed an opportunity to defend this suit. I therefore allow the application dated 8th December 2025. The plaintiff’s case is hereby reopened for purposes of the plaintiff’s cross examination by the defendant and the defendant’s case is reopened to allow the defendant present its evidence in this matter. I also order Mr. Vincent Kemosi Mogaka Advocate to pay a sum of Kshs. 20, 000/= to the plaintiff being thrown away costs.
18. It is so ordered
DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 1ST DAY OF JULY 2026
In the presence of;
Mr. Ochieng for the plaintiff
No appearance for the defendant
Court Assistant- Delphine