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ELCAllowedNot stated in judgment

Mwangani v County Government of Kakamega (Environment and Planning Civil Case E001 of 2024) [2026] KEELC 4125 (KLR)

Environment and Land Court
1 July 2026
1,102 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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By notice of motion dated 8th December 2025, the defendant sought reopening of the plaintiff's suit for cross-examination and reopening of its own case after failing to attend the hearing of 11th November 2025, when the plaintiff testified and closed his case. Counsel, Vincent Kemosi Mogaka, attributed non-attendance to sudden illness, supported by a medical report from 'Victory Health Care – Ukunda' signed by one 'Luke Stanley'. The plaintiff opposed, demonstrating through Kenya Medical Practitioners and Dentists Council correspondence that neither the doctor nor the facility was registered, and urged that the application was an afterthought filed a month after the hearing, that the defence was a sham, and that a litigant should not suffer counsel's inefficiencies. Framing the sole issue as whether the orders deserved to issue, the court applied Order 51 Rule 15 and Shah v Mbogo, holding that the discretion to set aside ex parte orders is judicial, weighing the regularity of proceedings and whether a triable defence exists. Although satisfied that the medical report was a forgery and that counsel's non-attendance lacked any excusable reason, the court found the defence raised triable issues and that the defendant, facing a claim of Kshs. 10,838,727 payable potentially from public funds, should be heard. The plaintiff's prejudice from lost time and resources was addressed by ordering Mr. Mogaka personally to pay thrown away costs of Kshs. 20,000/=. The application was allowed in its entirety, and the matter was set down accordingly.

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 deserves the orders sought, namely the reopening of the plaintiff's suit for cross-examination and the reopening of the defendant's case

Key legal issues

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Whether the ex parte proceedings of 11th November 2025 should be set aside and the suit and defence reopened

Holding

Yes. Although counsel's medical excuse was a forgery and inexcusable, the defence raises triable issues and the defendant should be heard; prejudice to the plaintiff is met with thrown away costs payable personally by counsel.

Reasoning

The court applied Order 51 Rule 15 and Shah v Mbogo. The medical report from 'Victory Health Care – Ukunda' signed by one 'Luke Stanley' was not supported by any registration with the Kenya Medical Practitioners and Dentists Council, and no rejoinder was offered; the court found it a forgery. Nevertheless, since the defence raised triable issues and public funds were at stake, the discretion favoured reopening, with the plaintiff compensated by thrown away costs.

p. 2

Legal principles established

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  • The discretion to set aside an ex parte order must be exercised judiciously, considering the regularity of the proceedings and whether the defence raises a triable defence
  • A party whose liability may result in the use of public funds should ordinarily be afforded an opportunity to be heard where a triable defence exists, even where counsel's explanation for non-attendance is unexcusable, with prejudice addressed through thrown away costs

Court orders

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  1. 1.The application dated 8th December 2025 is allowed
  2. 2.The plaintiff's case is reopened for purposes of the plaintiff's cross-examination by the defendant
  3. 3.The defendant's case is reopened to allow the defendant present its evidence in the matter
  4. 4.Mr. Vincent Kemosi Mogaka Advocate to pay the plaintiff thrown away costs of Kshs. 20,000/=

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Order 51 Rule 15 of the Civil Procedure Rules

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.

I therefore allow the application dated 8th December 2025. The plaintifi’s case is hereby reopened for purposes of the plaintifi’s cross examination by the defendant and the defendant’s case is reopened to allow the defendant present its evidence in this matter.
p. 3Final orders – reopening of suit and defence
I also order Mr. Vincent Kemosi Mogaka Advocate to pay a sum of Kshs. 20, 000/= to the plaintifi being thrown away costs.
p. 3Thrown away costs payable personally by counsel
The discretion to set aside an ex parte order must be exercised judiciously and not whimsically.
p. 2Judicious exercise of discretion
I am satisfied that the defence raises triable issues, and it will be in the interests of justice that the defendant is granted opportunity to be heard.
p. 3Triable defence and right to be heard

Issues in the judgment

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minor

The judgment recites an application dated 8th December 2025 but the supporting affidavit narrates illness 'on the morning of the hearing date of 11th November 2025', and the plaintiff's replying affidavit is dated 20th February 2026 and submissions 16th March 2026, i.e. after the application date but described consistently; the internal chronology of filings versus the hearing date appears compressed but is not internally contradictory on its face.

minor

The medical report's alleged author and facility are found to be non-existent, yet the court still exercised discretion in the applicant's favour; this tension is acknowledged by the court itself, not a contradiction.

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, "Mwangani v County Government of Kakamega (Environment and Planning Civil Case E001 of 2024) [2026] KEELC 4125 (KLR)", Case Analysis (2026). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4125/eng@2026-07-01

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