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ELCAllowedELC 375 of 2015

Bawan Limited & another v Kenya Urban Roads Authority & another (Environment and Land Case 375 of 2015) [2026] KEELC 3658 (KLR)

Environment and Land Court
15 June 2026
MKMOHAMMED N. KULLOW
1,722 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nairobi (Mohammed N. Kullow, J) determines a Notice of Motion dated 25th February 2026 by the 1st Defendant seeking to set aside ex parte proceedings of 11th November 2025, to have the suit heard de novo, to recall the Plaintiff's witness for cross-examination, and for leave to file its witness statement and bundle of documents out of time, with a stay of judgment scheduled for 16th April 2026. The Applicant contended it was never served with the hearing date taken on 2nd October 2025, that the Plaintiff relied on unserved amended documents, and that a change of counsel caused the lapse. The Plaintiff opposed, asserting the date was taken in open court, the Applicant had been given multiple opportunities to comply, and reopening an old matter would be prejudicial. The court framed a single issue: whether the Applicant offered a reasonable explanation for its non-attendance warranting the discretionary setting aside of proceedings. While observing the Plaintiff had not tendered evidence of service of the hearing notice, the court also found the 1st Defendant had been dilatory, having hardly attended court despite notice, and had moved only upon learning of the impending judgment. Nevertheless, applying the Supreme Court's decision in Mahamud v Mohamad on the right to adduce evidence, the court held procedural deficiencies should not override substantive justice and that any prejudice to the Plaintiff could be cured by recall and cross-examination. The application was allowed: proceedings of 11th November 2025 were set aside, the hearing to start de novo, with leave granted to both parties to file documents, liberty to recall witnesses, and throw away costs of Kshs 100,000/- awarded to the Plaintiff.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Applicant has sufficiently explained and/or offered a reasonable explanation for its non-attendance on 11th November 2025 when the suit was heard, to warrant the Court exercising its discretion to set aside the proceedings and have the suit heard de novo

Key legal issues

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01

Whether the Applicant gave sufficient cause for non-attendance at the ex parte hearing of 11th November 2025

Holding

The Court found the Applicant had not given sufficient grounds for reopening, noting lack of diligence, but exercised its discretion in favour of setting aside the proceedings in the interest of substantive justice.

Reasoning

The court noted the plaintiff was obligated to serve the hearing notice on counsel for the defendant and no evidence of such service was tendered. However, the record showed the 1st Defendant hardly attended court despite notice, and multiple adjournments and compliance directions had been granted. The Applicant filed the application only upon learning of an impending judgment. Balancing these, the court held procedural deficiencies should not override substantive justice and any prejudice to the Plaintiff could be cured by recalling witnesses and cross-examination.

p. 7

Legal principles established

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  • The right to be heard includes the right to adduce evidence to support a party's case; procedural deficiencies should not override substantive justice.

Court orders

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  1. 1.The proceedings of 11th November 2025 are set aside and the hearing shall start de novo
  2. 2.The 1st Defendant is granted leave to file and serve its witness statement and bundle of documents within 15 days from the date of the Ruling
  3. 3.The Plaintiff/Respondent is granted leave to file any supplementary documents and/or witness statements, if necessary, within 14 days of service
  4. 4.The Plaintiff/Respondent shall have liberty to recall any witness or cross-examine on the additional documents
  5. 5.The Plaintiff is awarded throw away costs of Kshs 100,000/- for the application, payable within 30 days from the date of the Ruling

The bench

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One judgment of the whole court — no separate or dissenting opinions.

MK
majority

Wrote the judgment

Jurisdiction invoked
Inherent discretion of the Environment and Land Court; civil procedure rules governing setting aside ex parte proceedings (Order 11 of the Civil Procedure Rules referenced)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The proceedings of 11th November 2025 are hereby set aside and direct that the hearing shall start de novo.
p. 8Final orders - setting aside ex parte proceedings
The 1st Defendant is hereby granted leave to file and serve its witness statement and bundle of documents within 15 days from the date of this Ruling.
p. 8Final orders - leave to file documents out of time
The Plaintiffs is awarded throw away costs of Kshs 100,000/- for the application which should be paid within 30 days from the date of this Ruling.
p. 8Final orders - throw away costs
I take the view that procedural deficiencies should not override substantive justice
p. 7Substantive justice over procedural deficiency
the right to be heard includes the right to adduce evidence to support its case
p. 7Right to be heard

Issues in the judgment

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minor

Contradiction: the application is described as dated 25th February 2026 in the opening, but the disposition refers to it as dated 26th February 2026.

minor

Internal contradiction on when the matter was filed: the case number is ELC 375 of 2015 but the judgment states 'The matter has been in court since 2025'.

minor

The judgment alternates between '1st Defendant' and '1st Respondent' when referring to the Applicant.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Bawan Limited & another v Kenya Urban Roads Authority & another (Environment and Land Case 375 of 2015) [2026] KEELC 3658 (KLR)", Case Analysis (2026). ELC 375 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3658/eng@2026-06-15

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