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ELRCDismissedNot stated in judgment

Bakeville Limited v Omar (Appeal E017 of 2024) [2025] KEELRC 2936 (KLR)

High Court of Kenya (first appellate court over the Magistrate's Court)
29 October 2025
NMNzioki Wa Makau
2,109 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 is a first appeal against a Magistrate's ruling of 25th April 2024 dismissing the Appellant's application dated 30th January 2024, which had sought to set aside orders of 29th January 2024 closing both parties' cases, a stay of directions on filing written submissions, and leave to respond to the claim with a deemed filing of its draft statement of response. The Appellant raised ten grounds, contending the Magistrate ignored its submissions, decided an effectively unopposed application, denied it a hearing on a curable technicality, and violated Articles 47, 50 and 159 of the Constitution. It relied on authorities urging judicious exercise of discretion and against penalising parties for counsel's mistakes, seeking the setting aside of the judgment of 8th April 2024. The Respondent opposed, asserting the application was opposed, offended Orders 3, 7 and 11 of the Civil Procedure Rules on pre-trial directions, was res judicata, and that admitting documents post-closure would cause trial by ambush; it cited authorities on obedience of court orders and urged dismissal with costs and release of the Kshs. 456,000/- security deposit. Dismissing the appeal, the Court held that Article 159 is no excuse for failing to adhere to court directions and must not be elevated to a fetish, that indolence in litigation is a choice, and that the Appellant had declined the opportunity to be heard. The Lower Court's findings were affirmed as free of error, caprice or misdirection. The appeal was dismissed with costs to the Respondent and the security deposit of Kshs. 456,000/- was ordered released.

Questions the Court framed

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

  1. 1.Whether the Learned Magistrate misdirected herself in dismissing the Appellant's application dated 30th January 2024 to set aside the orders of 29th January 2024 closing both parties' cases
  2. 2.Whether the Appellant's right to a fair hearing under Articles 47, 50 and 159 of the Constitution was violated
  3. 3.Whether the appeal should be allowed and the judgment of 8th April 2024 set aside

Key legal issues

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01

Whether the Appellant was denied a fair hearing by the closure of its case and entry of ex parte judgment

Holding

The Court held the Appellant was given an opportunity to be heard and declined it; the blame lay with the Appellant, not the Magistrate

Reasoning

The court found the Magistrate gave the Appellant an opportunity to be heard which it declined, and that the failure to file submissions on time was consequential. The Appellant's reliance on Article 50 could not stand against its own failure to take procedural steps when due.

p. 4
02

Whether the appeal demonstrated any error, caprice or misdirection in the Lower Court's findings

Holding

The Court found no error, caprice or misdirection and affirmed the Lower Court's findings

Reasoning

The Court declined to review point by point the Appellant's failures to abide by court directions, found the appeal without merit, affirmed the Lower Court's findings, and dismissed the appeal with costs while ordering release of the security deposit.

p. 4

Legal principles established

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  • Article 159 of the Constitution cannot be invoked to excuse non-compliance with court directions
  • Litigants in an adversarial system must take requisite procedural steps as and when they are due
  • Indolence in legal proceedings is a choice attributable to the party

Court orders

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  1. 1.Appeal dismissed with costs to the Respondent
  2. 2.Findings of the Lower Court affirmed
  3. 3.Security deposit of Kshs. 456,000/- held by the Court released

The bench

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

NM
majority

Wrote the judgment

On appeal from
Magistrate's Court
Not stated in judgment
Jurisdiction invoked
First appellate jurisdiction over the Magistrate's Court ruling of 25th April 2024 (specific constitutional/statutory basis not stated in the judgment)

Relief refused

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Allowance of the appeal and setting aside the judgment delivered on 8th April 2024

The Court found the appeal entirely without merit, holding the Appellant was entirely to blame for failing to abide by court directions

p. 4

Reversal of the Trial Court's findings based on Articles 159 and 50 of the Constitution

Article 159 is no excuse for failure to adhere to court directions; the Appellant declined the opportunity to be heard

p. 4

Costs

Appeal dismissed with costs to the Respondent

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.

Article 159 of the Constitution is no excuse for a party to fail to adhere to directions of a Court. It ought and must never be elevated to a fetish.
p. 4Article 159 and compliance with court directions
As I find the entire appeal to this Court without any merit I dismiss the appeal with costs to the Respondent. I afirm the findings of the Lower Court which were not made in any error and where no caprice or misdirection was evident. Appeal is accordingly dismissed with costs to the Respondent. The security deposit of Kshs. 456,000/- held by the Court is hereby released.
p. 4Final orders and disposition
Indolence in legal proceedings is a choice.
p. 4Party responsibility for procedural indolence

Issues in the judgment

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minor

Judgment does not state the case number, the specific court, or the magistrate's name in the material provided

minor

Internal inconsistency in dates: the judgment refers to a hearing on 29th January 2023 in submissions, but the orders closing the case are elsewhere dated 29th January 2024

minor

Multiple typographical errors in the text (e.g. 'fiy' for 'fly', 'afirm' for 'affirm', 'sufier' for 'suffer')

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, "Bakeville Limited v Omar (Appeal E017 of 2024) [2025] KEELRC 2936 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2936/eng@2025-10-29

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