Republic v Attorney General & 6 others; Wilson (Ex parte Applicant) (Suing on behalf of the residents of Chepchoina Phase 111 in Trans Nzoia County) (Environment and Land Judicial Review Case E005 of 2024) [2025] KEELC 6068 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Right to be heard (audi alteram partem)
The applicant was entitled to be heard; the judgment was delivered without the participation of the respondents because their replying affidavit was never filed, warranting setting aside
The court applied Joseph Mbalu Mutava v Attorney General and Githiga v Kiru Tea Factory, holding that Article 50(2) imposes a duty to guarantee procedural justice by giving parties a reasonable opportunity to present their cases. The respondents stood to be condemned unheard despite raising arguable grounds in the replying affidavit, including prior determinations and offer letters.
Non-disclosure by the exparte applicant
The exparte applicant knew of the replying affidavit from 8/1/2025 yet did not disclose it or seek leave to file a further affidavit, conduct the court weighed against it but which did not defeat the application
The court found the written submissions of 24/3/2025 specifically addressed the contents of the replying affidavit, and an unfiled further affidavit attached to the submissions confirmed knowledge from 8/1/2025. The court held two wrongs do not make a right, but substantial loss from being condemned unheard outweighed the respondents' prejudice.
Public interest as a consideration
Public interest is not a main consideration in whether to set aside or review a judgment; the discretion is unfettered
The respondents argued the judgment addressed illegalities affecting over 700 households, but the court held that public interest does not govern the review/set-aside discretion. Substantial loss likely to be suffered by the applicant by being condemned unheard outweighed any loss to the respondents if the judgment were set aside.
Legal principles established
#- The right to be heard is a cardinal principle of the rule of law, and a defence disclosing triable issues cannot be shut out
- An unfiled but served replying affidavit amounting to new and important information warrants setting aside a judgment delivered without it
- A party aware of a matter must disclose it to the court; non-disclosure and approbate-and-reprobate conduct weigh against a party
Court orders
#- 1.The judgment delivered on 18/6/2025 is set aside
- 2.The replying affidavit is to be filed and served within 14 days from the date of the ruling
- 3.The further affidavit by the exparte applicant is to be filed and served within 21 days upon service with the replying affidavit
- Jurisdiction invoked
- Inherent discretion under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules (review of judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Attorney General & 6 others; Wilson (Ex parte Applicant) (Suing on behalf of the residents of Chepchoina Phase 111 in Trans Nzoia County) (Environment and Land Judicial Review Case E005 of 2024) [2025] KEELC 6068 (KLR)", Case Analysis (2025). Not stated in the judgment (judicial review proceedings arising from notice of motion dated 3/10/2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6068/eng@2025-09-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.