Ethics & Anti-Corruption Commission v Kivisi & 2 others (Environment and Land Appeal 596 of 2014) [2025] KEELC 3903 (KLR)
The bottom line
#A Kakamega court refused to reopen a case the defendants missed, ruling that poor diary management by their lawyer was not a good enough excuse.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there is good cause to reopen both the plaintiffs' and 1st and 3rd defendants' case
Key legal issues
#Whether good cause exists to set aside ex parte proceedings and reopen the case
Application dismissed; no plausible reason for non-attendance demonstrated
Counsel's office was served with a hearing notice on 28th May 2024 for hearing on 2nd October 2024; the date was on the CTS platform; substituted witness statements were served in September 2024. Counsel gave no evidence of non-diarization and did not explain failing to check the CTS for over four months. The suit, pending since 2009, would be further delayed. Discretion under Order 51 Rule 15 must be exercised judiciously, and the ends of justice did not demand setting aside.
Legal principles established
#- The power to set aside ex parte orders is discretionary and must be exercised judiciously; an applicant must demonstrate reasons for failure to attend court and that the ends of justice demand setting aside
Court orders
#- 1.Notice of Motion dated 19th December 2024 dismissed
- 2.Costs to the plaintiff
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 51 Rule 15 of the Civil Procedure Rules
Relief refused
#Review, variation and setting aside of the orders of 2.10.2024 closing the plaintiffs' and defence case, and reopening of both cases with recall of plaintiffs' witness for cross-examination
Applicants failed to demonstrate good cause or plausible reasons for non-attendance on 2nd October 2024 despite service of hearing notice, service of documents, and the date being on the CTS platform
Costs
Application dismissed with costs to the plaintiffs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
This discretion (to set aside ex parte proceedings or decision) is intended so 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.
Just because a matter proceeded ex parte is not reason enough to set it aside, the applicant seeking to set aside the ex parte order must demonstrate to the court that the ends of justice demands that an ex parte order be set aside.
I find no merit in the application dated 19th December 2024, which I hereby dismiss with costs to the plaintifi.
Issues in the judgment
#Parties are inconsistently referred to: the respondent is called 'plaintifi' in places and 'plaintiffs' elsewhere; roles of applicant/respondent are used in submissions though the heading uses plaintiff/defendant
Neither party filed submissions as directed; judgment proceeds on the pleadings and affidavits only
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ethics & Anti-Corruption Commission v Kivisi & 2 others (Environment and Land Appeal 596 of 2014) [2025] KEELC 3903 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3903/eng@2025-04-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.