Chweya v Shah (Environment and Land Case E041 of 2023) [2025] KEELC 7904 (KLR)
The bottom line
#A Nakuru court allowed a defendant's lawyer, who missed a hearing due to hospitalisation, a second chance to defend a land case after paying the plaintiff Kshs. 25,000 in costs.
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 court should set aside the ex parte proceedings of 28th July 2025 and fix a fresh hearing for both parties
Key legal issues
#Whether the ex parte proceedings of 28th July 2025 should be set aside and a fresh hearing fixed
Yes - in the interest of justice the proceedings were set aside and the Applicant granted leave to defend, on condition of thrown away costs and fixing the suit for hearing within 14 days
The court weighed the Applicant counsel's hospitalisation against the Plaintiff's prejudice from having travelled from the UK and having her testimony set aside. Relying on Muthaiga Road Trust Company Ltd v Five Continents Stationers Ltd, the court held that its overriding concern is to do justice and its discretion should not be fettered, and balanced this against the Applicant's failure to attend court, compensated by thrown away costs.
Legal principles established
#- In setting aside applications the court's main concern is to do justice to the parties and its wide discretion should not be fettered
Court orders
#- 1.Proceedings of 28th July 2025 set aside
- 2.Applicant granted leave to defend the case
- 3.Applicant to pay thrown away costs of Kshs. 25,000/- to the Plaintiff
- 4.Applicant to fix the case for hearing within 14 days failing which the order lapses
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Inherent jurisdiction of the court under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 12 Rule 7 of the Civil Procedure Rules
Relief refused
#Costs of the application in the cause
Court instead awarded thrown away costs of Kshs. 25,000/- to the Plaintiff
Costs
Applicant to pay thrown away costs to the Plaintiff of Kshs. 25,000/-; application otherwise granted
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.
In the interest of justice, I therefore grant the Applicant leave to defend the case and set aside the proceedings of 28th July 2025. The Applicant to pay thrown away costs to the Plaintifi of Kshs.25,000/ as the Applicant did not attend court to defend the case. The Applicant to fix the case for hearing within 14 days failure to which the order lapses.
In an application for setting aside, the main concern of the court is to do justice to the parties and the court will not impose conditions on itself to fetter the wide discretion given to it by the rules
Issues in the judgment
#Court and suit/case number are not stated on the face of the ruling; the identity of the Defendant is also not given
The court cites Johana Kipkemei Too v Hellen Tum, a passage favouring the Plaintiff's position on prejudice, yet allows the application; the court does not expressly reconcile this tension
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chweya v Shah (Environment and Land Case E041 of 2023) [2025] KEELC 7904 (KLR)", Case Analysis (2025). Not stated in the judgment (Notice of Motion dated 4th August 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7904/eng@2025-11-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.