Rocklink Limited v Gitau & another (Both Sued in their Capacity as Personal Representatives of the Estate of Paul Gachui Thothi and Mbugua Paul Gitau Deceased) (Environment and Land Case 276 of 2018) [2025] KEELC 5556 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Plaintiff/Respondent and Defendant in the counter-claim should be granted the orders sought in the Application, namely setting aside the proceedings of 24/06/2024 and rehearing de novo
- 2.Whether the Plaintiff was prevented from attending the hearing by sufficient cause given the technological/internet challenges
- 3.Whether setting aside serves the overriding objective and the right to a fair hearing under Article 50(1)
Key legal issues
#Whether the ex parte proceedings of 24/06/2024 should be set aside
Yes - the Plaintiff showed sufficient cause through technological challenges affecting both the Court and Counsel, and demonstrated willingness to defend the counter-claim, which raises triable issues.
The court applied the principles governing setting aside ex parte proceedings, including the categories in Esther Wamaitha Njihia v Safaricom, and Wachira Karani v Bildad Wachira on sufficient cause as a question of fact. Article 50(1) guarantees a fair hearing before a court. Though the Defendant would suffer delay prejudice, the right to be heard prevails so the dispute may be heard on merit.
Whether a defence on merits with triable issues exists
Yes - applying Patel v East Africa Cargo Handling Services, a defence on merits need only raise a triable issue, and the court found the counter-claim raises triable issues justifying rehearing.
Relying on Duffus P in Patel v East Africa Cargo Handling Services Ltd, the court noted that a regular judgment is usually set aside only where there is a defence on merits, meaning a triable issue - one raising a prima facie defence fit for trial. The Plaintiff demonstrated willingness to defend and the counter-claim was found to raise triable issues.
Legal principles established
#- Irregular proceedings, orders or decisions must be set aside as a matter of right or of course, and in such circumstances the court has no discretion to refuse.
- Sufficient cause for absence is a question of fact to be assessed in the varied and special circumstances of each case.
- Where the right to a fair hearing is engaged, the right to be heard outweighs the prejudice of delay to the other party.
Court orders
#- 1.Proceedings of 24/06/2024 set aside and the matter to start de novo
- 2.Plaintiff granted leave to cross-examine the Defendants on their Counter-claim from the evidence of 24/06/2024 and leave to canvass their evidence
- 3.Costs in the cause
- 4.Matter to be heard on 3/12/2025
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act; Order 9 Rule 9(a), Order 42 Rule 6, Order 10 Rule 11 and Order 51 Rule 1 of the Civil Procedure Rules, 2010; Article 50(1) of the Constitution
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.
Weighing the prejudice against the right to be heard, this Court finds favour with the latter so that the dispute may be heard on merit.
That the proceedings of this Court of 24/06/2024 are hereby set aside and the matter do start de novo.
The Plaintifi is granted leave to cross examine the Defendants on their Counter-claim from the evidence of 24/06/2024, leave is also granted to the Plaintifi to canvass their evidence.
Issues in the judgment
#The judgment inconsistently labels the moving party: the Notice of Motion is supported by an affidavit of an advocate for the Plaintiff and the court grants the Plaintiff's application, yet paragraphs 10, 11 and the submissions headings describe a 'Defendant/Applicant'. The judgment also mentions an application of 21/11/2024 to set aside proceedings of 21/11/2024, but the orders ultimately set aside proceedings of 24/06/2024.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rocklink Limited v Gitau & another (Both Sued in their Capacity as Personal Representatives of the Estate of Paul Gachui Thothi and Mbugua Paul Gitau Deceased) (Environment and Land Case 276 of 2018) [2025] KEELC 5556 (KLR)", Case Analysis (2025). Not stated in the judgment provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5556/eng@2025-07-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.