Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowed· [2025] KEELC 6836 (KLR)

Kimemia & another v Bulemi & 26 others (Environment and Land Case E007 of 2022) [2025] KEELC 6836 (KLR)

Environment and Land Court
1 October 2025
ANA. Nyukuri
868 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

#

The Kakamega Environment and Land Court set aside ex parte orders and gave the defendants a fresh hearing, but ordered them to pay Kshs. 20,000 thrown away costs.

What this practically means

#

Executive summary

#
The defendants filed a Notice of Motion dated 8th April 2025 seeking to set aside the court's proceedings and orders of 4th March 2025, leave to defend the suit, and that the case start de novo. The application was supported by an affidavit of Phinias Evoge Muhindi, the 16th defendant, who explained that counsel misdiarized the hearing date as 4th March 2024 instead of 4th March 2025 when transferring dates to the 2025 diary, only learning of the ex parte proceedings on 4th April 2025. The 1st plaintiff, Anne Kimemia, opposed in a replying affidavit, contending the date was fixed in court in the presence of both counsel, that the excuse was not credible, that the misdiarization was counsel's negligence which should not be visited on diligent plaintiffs, and that the application was a delay tactic contrary to the overriding objective and Article 159 of the Constitution. The court framed a single issue: whether the applicants deserved setting aside of the ex parte orders. Relying on Order 51 Rule 15 of the Civil Procedure Rules and applying Shah v Mbogo, the court found the diarization explanation implausible, 'a mere clutch at straws', but held the fault lay with the defendants' advocate and that the application was made without delay. In the interests of justice, the court allowed the application, set aside the orders of 4th March 2025, granted the defendants leave to defend, and directed that the case start de novo, conditioned on payment of thrown away costs of Kshs. 20,000/= to the plaintiffs and their counsel within 30 days.

Key legal issues

#
01

Whether the ex parte proceedings and orders of 4th March 2025 should be set aside and the defendants granted leave to defend

Holding

The application was allowed despite an implausible explanation, because the fault was the defendants' advocate's and they moved without delay; setting aside was conditioned on thrown away costs.

Reasoning

The court found the diarization explanation illogical and a mere clutch at straws, but held the mistake was squarely attributable to the defendants' advocate. As the defendants filed the application without delay and had a chance to be heard interest, the court exercised its discretion under Order 51 Rule 15 to set aside the orders, compensate the diligent plaintiffs with thrown away costs, and order the case to start de novo.

p. 2

Legal principles established

#
  • The discretion to set aside an ex parte order must be exercised judiciously, not to assist a party to delay or obstruct justice, but to enable a party access justice where there is an inadvertent mistake.
  • A mistake by an advocate, though it has consequences for the client, may justify setting aside ex parte proceedings in the interests of justice, subject to thrown away costs to the diligent party.

Court orders

#
  1. 1.The orders made on the 4th March 2025 are set aside
  2. 2.The defendants are granted leave and opportunity to defend the suit
  3. 3.The case shall start de novo
  4. 4.The defendants/applicants to pay the plaintiffs and their counsel thrown away costs of Kshs. 20,000/= within 30 days of the ruling

Authorities

#

Legislation

  • Civil Procedure RulesOrder 51 Rule 15
  • Civil Procedure ActOverriding objective
  • Constitution of KenyaArticle 159

Cases cited (1)

  • Shah v Mbogo
    [1968] EA
Jurisdiction invoked
Order 51 Rule 15 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kimemia & another v Bulemi & 26 others (Environment and Land Case E007 of 2022) [2025] KEELC 6836 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6836/eng@2025-10-01

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.