Obulinji v Agengo (Sued as the Administratrix Ad Litem of the Estate of Yusuf Gero Agengo - Deceased) (Environment and Land Case 186 of 2017) [2026] KEELC 5370 (KLR)
The bottom line
#A Kisumu land court refused to undo a hearing missed by a party who gave no credible, corroborated excuse for skipping it.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there are preliminary matters on the face of the application that require the attention of the court
- 2.Whether the applicant has established sufficient cause to warrant the setting aside of the proceedings and orders of 6th July 2026
- 3.Whether the applicant has demonstrated a defence on the merits such as would render the setting aside a useful exercise
- 4.Who should bear the costs of this application
Key legal issues
#Sufficient cause for setting aside ex parte proceedings and orders under Order 51 Rule 15
Not established; the applicant was in default from the date of service, offered no explanation for the earlier default, and the claimed technical hitch was wholly unsubstantiated and deposed to on the wrong date
The defendant had actual notice from 8th June 2026, took the hearing date through counsel, filed no response within twenty-eight days, and gave no explanation for that default. The alleged microphone malfunction and 'raise hand' action had no corroboration, and the affidavits deposed positively to proceedings on 7th July 2026, a day on which nothing was listed. A technical hitch on the hearing morning cannot excuse antecedent default.
Effect of paragraph 29(c) of the Practice Directions (2022) on virtual session interruptions
The deeming provision presupposes that the court is made aware of the interruption; it does not oblige the court to divine a silent participant
The Practice Direction treats a cut-off in communication as an adjournment, but it applies where the court knows or is told the link has failed mid-hearing. It cannot convert a session that concluded without any intimation of difficulty into an adjournment, and the expected remedy was immediate communication with the registry or opposing counsel, which was not done.
Whether the revival order of 2nd November 2021 bars the abatement defence
Yes; the order is subsisting and cannot be collaterally attacked in an affidavit; the correct principle is finality and binding force of a subsisting order, not res judicata stricto sensu
The court of 2nd November 2021 extended time for substitution, joined the administratrix ad litem and revived the suit; that order has never been set aside, reviewed or appealed. Section 7 res judicata applies to former suits, whereas here the bar arises from the finality of an interlocutory order in the same proceedings and the rule against collateral attack. The distinction is of label, not substance.
Whether an advocate may depose to disputed facts that are the central controversy
Counsel should avoid being both advocate and witness where his own conduct is the controverted fact
An advocate may depose to procedural matters within his knowledge, but where the central contested issue is what counsel personally did or did not do, his affidavit places him in an invidious dual role as advocate and witness in his client's cause, a course to be avoided.
Legal principles established
#- The discretion to set aside ex parte proceedings is judicial, exercised to avoid injustice from accident, inadvertence or excusable mistake, not to assist deliberate obstruction
- A subsisting order of a court of competent jurisdiction binds the parties until discharged by the court that made it or a superior court, and cannot be collaterally attacked in an affidavit
- A technical difficulty on the morning of a hearing cannot be used to white-wash a prior history of dilatoriness
Court orders
#- 1.The Notice of Motion dated 27th July 2026 be and is hereby dismissed
- 2.Each party to bear own costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act, Cap 21; Article 159(2)(d) and (e) of the Constitution; Order 12 Rule 7 and Order 51 Rule 15 of the Civil Procedure Rules, 2010
Relief refused
#Stay of further proceedings pending hearing of the application inter partes
Moot upon dismissal of the motion
Review, variation and/or setting aside of the ex parte proceedings and orders of 6th July 2026
Sufficient cause not established; the alleged technical hitch was unsubstantiated and anchored on the wrong date, and the party was already in default before the hearing
Leave to file and serve a replying affidavit to the application dated 8th June 2026
The draft response relied solely on abatement, which had been conclusively determined by the unchallenged revival order of 2nd November 2021; setting aside would be futile
Costs
Each party to bear own costs of the application
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.
This discretion 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 the person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice.
a technical difficulty on the morning of the hearing cannot be used to white-wash a history of dilatoriness
It is trite that an order of the court, whether or not it was correctly made, is binding on the parties and must be given effect until it is discharged by the court that made it or by a court of superior jurisdiction.
The Notice of Motion dated 27th July 2026 be and is hereby dismissed.
Each party to bear own costs of the application.
Issues in the judgment
#Applicant's motion and affidavit repeatedly deposed to ex parte proceedings on 7th July 2026 when the court record shows they took place on 6th July 2026
The motion inverts the party designations, describing the defendant as 'Applicant/Respondent' and the plaintiff as 'Respondent/Applicant'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Obulinji v Agengo (Sued as the Administratrix Ad Litem of the Estate of Yusuf Gero Agengo - Deceased) (Environment and Land Case 186 of 2017) [2026] KEELC 5370 (KLR)", Case Analysis (2026). ELC Case No. 186 of 2017 (formerly Kisumu High Court Commercial Civil Case No. 4 of 2004). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5370/eng@2026-08-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.