Kimeto (Suing as the Legal Representative of the Estate of Daniel Kikwai Chepkwony alias Kikwai arap Chepkwony (Deceased)) v Korir & 4 others (Environment and Land Case E052 of 2026) [2026] KEELC 2322 (KLR)
The bottom line
#A Kericho court refused to undo a hearing that happened without the defendants, but still let them file their defence late and cross-examine the plaintiff.
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 application dated 28th June, 2025 has merit (whether the ex parte hearing and proceedings should be set aside and leave granted to file a Statement of Defence)
- 2.Whether the application has been filed on behalf of all the Defendants/Applicants given the absence of an authority to plead for the 1st and 2nd Defendants
Key legal issues
#Whether to set aside the ex parte hearing and proceedings
The court declined to set aside the ex parte proceedings but permitted the Defendants/Applicants to cross-examine the Plaintiff/Respondent, since no medical evidence supported the claim that counsel was sick and the applicants merely blamed their former advocate.
The applicants admitted their counsel was served with a hearing notice for 28th January, 2025 but did not attend because he was allegedly sick. No medical documents were availed. Relying on Habo Agencies, the court held that parties must show interest in and follow up their cases even when represented; the applicants took the easier route of blaming counsel for both non-attendance and the failure to file a defence over five years.
Whether leave should issue to file a Statement of Defence out of time
Leave was granted; the draft Statement of Defence annexed to the affidavit was deemed duly filed upon payment of requisite court fees.
Despite declining to set aside the ex parte proceedings, the court found it in the interest of justice to allow the defendants to file their Statement of Defence out of time and to cross-examine the plaintiff, thereby balancing the discretion against the applicants' inaction with the overriding objective of a just determination on the merits.
Whether the application could be sustained on behalf of all the Defendants/Applicants absent an authority to plead for the 1st and 2nd Defendants
Failure to attach the authority was held not fatal; the depositions are treated as those of the deponent only, following Okoyo v Guti.
The 3rd Defendant swore the supporting affidavit on behalf of the 1st, 2nd, 4th and 5th Defendants but annexed no authority to plead for the 1st and 2nd. Relying on Okoyo v Guti, where failure to annex an authority was held not fatal, the court adopted the same approach and treated the defect as non-fatal rather than striking out the depositions.
Legal principles established
#- The discretion to set aside ex parte proceedings is to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake, but not to assist a party who has deliberately sought to obstruct or delay the course of justice
- It is not enough for a party to blame advocates for transgressions in the conduct of litigation; parties have a responsibility to show interest in and follow up their cases even when represented
- Failure to annex an authority to plead or to swear on behalf of co-parties is not fatal; the depositions are treated as those of the deponent alone
Court orders
#- 1.Leave granted to the Defendants/Applicants to file their Statement of Defence out of time within 7 days of the date of the ruling
- 2.The draft Statement of Defence annexed to the affidavit in support of the application deemed as duly filed upon payment of requisite court fees
- 3.The Plaintiff/Respondent to file a reply to defence within 7 days upon service of the statement of defence
- 4.Leave granted to the Defendants/Applicants to recall the Plaintiff/Respondent for purposes of cross-examination only, within 30 days of the date of the ruling
- 5.Costs of the application to be in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 159(2)(d) and Article 50(1) of the Constitution of Kenya; Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act; Order 51 Rule 1 and Order 18 Rule 10 of the Civil Procedure Rules
Relief refused
#Setting aside the ex parte hearing and proceedings
The court declined to set aside the ex parte proceedings, holding that the applicants' explanation of counsel's sickness was unsupported and that blame cannot simply be placed on advocates, as parties must follow up their cases
Costs
Costs of the application shall be in the cause
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.
Consequently, I decline to set aside the ex parte proceedings but will instead exercise my discretion and allow the Defendants/Applicants to cross-examine the Plaintiff/Respondent.
Further, it is in the interest of justice to grant the Defendants/Applicants leave to file their Statement of Defence out of time.
Leave is hereby granted to the Defendants/Applicants to file their Statement of Defence out of time and shall do so within 7 days of the date hereof.
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.
It is not enough for a party in litigation to simply blame the Advocates on record for all manner of transgressions in the conduct of the litigation.
I find that failure by 3rd Defendant/Applicant to attach the authority to plead on behalf of the 1st and 2nd Defendants/Applicants is not fatal.
Issues in the judgment
#The judgment states that the Plaintiff/Respondent filed his submissions on 27th January, 2025, which is before the Defendants/Applicants' submissions dated 21st October, 2025 and before the application was reserved for ruling on 28th January, 2026; this date appears internally inconsistent with the chronology.
The Plaint filed on 16th January, 2020 is described as having been amended on 1st August, 2023, while the Replying Affidavit deposes that the Plaint was amended on 3rd August, 2023; the dates conflict within the judgment.
The prayer (j) of the Amended Plaint refers to 'prayer (e)' for default payment, whereas the uprooting-costs default appears to refer to a different prayer in the sequence of prayers listed.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kimeto (Suing as the Legal Representative of the Estate of Daniel Kikwai Chepkwony alias Kikwai arap Chepkwony (Deceased)) v Korir & 4 others (Environment and Land Case E052 of 2026) [2026] KEELC 2322 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2322/eng@2026-04-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.