Motanya & another v Mahinda (Civil Suit 659 of 2014) [2026] KEMC 198 (KLR)

Plaintifis’ submissions 3. The plaintifis also made submissions in writing dated 14/04/2026 on the issues of whether the absence of the plaintifis’ counsel was excusable in the circumstances and whether the plaintifis will sufier irreparable prejudice if denied the opportunity to cross-examine the defendant. In their submissions they argued that their absence in the virtual hearing was due to power blackout disrupting internet connectivity and the defendant’s argument that power was in court house is a non sequitur citing the case of Teiyai Ole Ntumari v Paul Osoro Momanyi (2025) KEELC 7167 (KLR), where the court acknowledged the said reasons as reasonable grounds for non-attendance. 4. . They also argue that the defendant has testified on a suit whose core allegations are fraud and breach of contract arising from a 11-year-old dispute and the prejudice to the plaintifis if cross- examination is not allowed is self- evident and higher compared to the defendant’s. Also, that it is a violation of their constitutional rights under Article 50 and Article 159(2)(d), the right to fair trial and right to substantive justice without undue regard to technicalities if the court fails to reopen the defence case. The plaintifis do not object to paying a reasonable amount of costs as condition of relief but the demand of Kshs. 30,000 by the Defendants is punitive and unsupported by evidence. Defendants submissions 5. The defendants opposed to the application via a replying afidavit dated 2/02/2026 sworn by the Defendant in which they argued that there was no blackout as alleged by the counsel and that having been given several adjournments does not automatically grant the plaintifis an adjournment. That should the court be inclined to grant leave he should be awarded Kshs. 30, 000 for the travel expenses incurred. That however no evidence was provided to support the claim. Issues for Determination 6. The issues for determination herein are whether the plaintifis have met the legal threshold to grant them the orders sought herein. In the case of Nicholas Kiptoo Arap Korir Salat v. IEBC and 7 Others (2014) eKLR the Supreme Court provided guiding principles that must be met by the applicant as follows; a. Suficient cause / reason for the delay b. Whether the application to set aside the order has been brought without undue delay. c. Whether the defendant will sufier prejudice that cannot be compensated by damages. d. Discretion of Court and in the interest of Justice. 7. I find that the plaintifis’ application herein has satisfied and met the above set guidelines. Further applying precedents set on application of discretion such as shah v Mbogo & Another (1967) e KLR, I find that the prejudice sufiered by the defendant can be cured by throw away costs. 8. The court considering the findings hereinabove is therefore inclined to grant the orders sought by the applicant, and do therefore hereby set aside the orders made on 5/11/2025 and allow the reopening of the defence case for cross-examination by the plaintifis’ counsel on the condition of payment of throwaway costs of Kshs. 15,000 to the defendant. Costs of the application in cause. DATED, SIGNED AND DELIVERED AT NAKURU ON THIS 25TH DAY OF JUNE 2026 A.P NDEGE https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/198/eng@2026-06-25 2

page 2 of 3

SENIOR PRINCIPAL MAGISTRATE In the presence of; Plaintifis’ Counsel: Magata Defence Counsel: n/a 1st Plaintifi: n/a 2nd Plaintifi: n/a Defendant: n/a Magatta: May we mention the matter before court 1 for reallocation. CT: Mn before ct 1 on 07/07/26 for reallocation. MNTI. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/198/eng@2026-06-25 3

page 3 of 3