https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4806

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND COURT AT NAIROBI** **ELC NO. E142 OF 2024** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **AMNA BI - PLAINTIFF /APPLICANT** **VS** **FRANCIS MAINA NDEGWA - DEFENDANT /RESPONDENT** **RULING** **(In respect of the Plaintiff’s Application dated 30/6/2025)** 1. The application before the Court is dated 30/6/25 and was filed by the Applicant seeking orders to set aside and/or vary its orders of 30/6/25, under which the Plaintiff's suit was dismissed. Further, the Applicant seeks reinstatement of the suit and its hearing on merits. 2. The application is based on the grounds annexed thereto and the Applicant’s affidavit. She concedes that neither she nor her Advocate was present in Court on 30/6/25 for the hearing, resulting in the case being dismissed for want of prosecution. She learnt of the dismissal later. She stated that she is now keen to prosecute her case and that her Counsel's mistake should not be visited upon her as an innocent client. She urged the Court to exercise discretion in her favour and reinstate the suit, as the Respondent will not be prejudiced in any way. In any event, she filed the current application without any inordinate delay. 3. By his replying affidavit sworn on 1/7/26, the Respondent opposed the application and contended that the grounds relied on by the Applicant, seeking the Court to set aside its dismissal orders of 30/6/25, are false, unsupported, and frivolous. He stated that the Applicant’s contention that there was a communication mishap between her and her then Counsel is a feeble attempt to shift blame for her failure to diligently prosecute her suit. There is no correspondence, communication, or affidavits from the former Counsel, or any material whatsoever, to demonstrate the alleged breakdown in communication. In any event, the hearing had been cause-listed on the Court Tracking System [CTS] as far back as 13/3/2025, a period of close to 15 months, and therefore her claim that she was unaware of the hearing is but a falsehood intended to hoodwink the Court and allow her dilatory tactics to further delay the prosecution of this matter. 4. He reiterated that the Applicant's assertion that she was unaware of the hearing date does not constitute sufficient cause to set aside the lawful dismissal, given her personal duty and responsibility to follow up and prosecute her case, and that she cannot perpetually hide behind the alleged mistakes of her Counsel. He averred that this is not an isolated case but a pattern of indolence and lack of interest by the Applicant in prosecuting her case, as evidenced by the previous application and the multiple filing of cases in more than one forum. Terming the application an abuse of the process of Court, the Respondent urged the Court that reinstatement of the suit will occasion serious prejudice in terms of legal fees and time spent defending the case, including another similar and unresolved suit in the lower Court initiated by the Applicant on the same issues. 5. Parties filed written submissions, which I have read and considered in reaching the ruling. I thank Counsel for their insightful submissions and diligence in the matter. 6. The key issue for determination is whether the application is merited. 7. The law applicable for setting aside judgment or dismissal is Order 12 Rule 7 of the Civil Procedure Rules which provide as follows; “Where under this Order judgment has been entered or the suit has been dismissed, the Court, on application, may set aside or vary the judgment or order upon such terms as may be just.” 1. Reinstatement of a suit is discretionary. Section 3A of the Civil Procedure Act confers on the Court inherent power to make such orders as may be necessary to achieve the ends of justice. The considerations the Court should bear in mind when exercising discretion were emphasised in the case of Esther Wamaitha Njihia & 2 Others -vs- Safaricom Ltd [2014] eKLR**,** where, citing relevant cases on the issue, the Court held inter alia: “The discretion is free and the main concern of the Courts is to do justice to the parties before it (see Patel vs E.A. Cargo Handling Services Ltd.). The discretion is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error but is not designed to assist a person who deliberately sought, whether by evasion or otherwise, to obstruct or delay the cause of justice (see Shah Vs. Mbogo). The nature of the action should be considered; the defence, if any, should also be considered; and so should the question as to whether the Plaintiff can reasonably be compensated by costs for any delay, bearing in mind that to deny a litigant a hearing should be the last resort of a Court…. It also goes without saying that the reason for failure to attend should be considered.” 1. It is trite that the Court has wide powers to set aside dismissal orders save that where the discretion is exercised the Court will do so on terms that are just. In CMC Holdings Limited vs. Nzioki [2004] 1 KLR 173 it was held as follows: - “That discretion must be exercised upon reasons and must be exercised judiciously…... In law the discretion that a Court of law has, in deciding whether or not to set aside ex parte order was meant to ensure that a litigant does not suffer injustice or hardship as a result of amongst others an excusable mistake or error. It would not be proper use of such discretion if the Court turns its back to a litigant who clearly demonstrates such an excusable mistake, inadvertence, accident or error. Such an exercise of discretion would be wrong principle...The answer to that weighty matter was not to advise the appellant of the recourse open to it as the learned magistrate did here. In doing so she drove the appellant out of the seat of justice empty handed when it had what it might have well amounted to an excusable mistake visited upon the appellant by its advocate.” 1. Guided by the above decisions of the Court, I will now examine the grounds for the application to determine whether it is one in which the Court ought to exercise its discretion in her favour. The gist of the Applicant's application to set aside the dismissal orders is premised on her averments that she was not made aware of the hearing by her then Counsel and that, as such, the mistake of her Counsel should not be visited on her. She states that she resides in the United Kingdom and only learnt of the dismissal when she perused the Court file. 2. I have perused the proceedings leading to the dismissal of the suit on 30/6/25. On 25/11/24, the matter was certified ready for hearing as an undefended cause, when the Court noted that, although the Defendant was served, he failed to enter an appearance or file any defence. The matter was then scheduled for hearing on 13/3/2025. On the material date, the Applicant was represented by her Counsel, Ms Njenga, who held the brief of Mr Bashir. The Applicant, through her Counsel on record, then sought an adjournment on the grounds that she was unwell. Although Counsel did not present any evidence to support her client's indisposition, the Court nevertheless accommodated her and granted the adjournment, which was marked as the last one. The Applicant, through her Counsel, fixed the matter for hearing on 30/6/25. On the material date, the Applicant was represented by Mr Bashir, while the Defendant was represented by Mr AbdulRazak. Mr Bashir confirmed that the matter was for hearing, and that a preliminary objection filed by the Defendant dated 22/5/25 had been served upon him, and sought directions thereon. Mr Bashir concurred with his learned colleague. The Court gave directions for hearing at 11.40 am. At the material time, none of the Counsels for the parties were present, and the Court dismissed the matter for want of prosecution and non-attendance. 3. It is trite that, for the Court to exercise its discretion in favour of a party, it behoves the party to give sufficient and/or plausible reasons for failing to attend the hearing as directed by the Court. Justice Mativo [as he then was] in the Wachira Karani v Bildad Wachira [2016] eKLR quoted the Supreme Court of India in the case of Parimalvs Veena, where the Court observed that: "sufficient cause" means that the party had not acted in a negligent manner or there was want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been "not acting diligently" or "remaining inactive." 1. In this case, the Applicant has not tendered any evidence in the form of correspondence or communication with her Counsel, nor has there been any query from her Counsel about the progress of her case. Yet she is quick to blame her Counsel for her alleged ignorance on the hearing date. The Court notes that it was her advocate who fixed the matter for hearing and appeared in the morning for the call over. At no time did her advocate inform the Court that the Applicant was not ready to proceed, or indicate any lack of contact with the client. The state of affairs as represented to the Court by her Counsel was that the Applicant was firstly aware of the matter and that there was no likelihood that the matter would not proceed, at the very least. 2. It has been settled in many cases that a litigant must not always blame his/ her Counsel when wrongs occur; they are required to be hands-on on their cases at all times. The Court associates itself with the sentiments of Justice Kimaru [as he then was], as quoted by the Court in Savings and Loans Limited vs Susan Wanjiru Muritu, Nairobi (Milimani) HCCS NO. 397 of 2002 where the learned judge expressed himself as follows: “Whereas it would constitute a valid excuse for the Defendant to claim that she had been let down by her former advocate’s failure to attend Court on the date the application was fixed for hearing, it is trite that a case belongs to a litigant and not to her advocate. A litigant has a duty to pursue the prosecution of his or her case. The Court cannot set aside dismissal of a suit on the sole ground of a mistake by Counsel of the litigant on account of such advocate’s failure to attend Court. It is the duty of the litigant to constantly check with her advocate the progress of her case. In the present case, it is apparent that if the Defendant had been a diligent litigant, she would have been aware of the dismissal of her previous application for want of prosecution soon after the said dismissal. For the Defendant to be prompted to action by the Plaintiff’s determination to execute the decree issued in its favour, is an indictment of the Defendant. She had been indolent and taking into account her past conduct in the prosecution of the application to set aside the default judgment that was dismissed by the Court, it would be a travesty of justice for the Court to exercise its discretion in favour of such a litigant.” 1. The Court is not persuaded by the Applicant's contention that she was unaware of the hearing date. No evidence was adduced to support such a position whatsoever. 2. On the basis of the record, the Court therefore finds that the Applicant was duly represented and that, at no time, did her legal representative inform the Court that she was unaware of the hearing. In any event, the role of Counsel is ordinarily to keep his client abreast of the progress of her case. Firstly, the date had been fixed by her Counsel and even appeared on the material date of the hearing, and therefore she cannot be allowed to feign ignorance of the suit. 3. The principles for setting aside ex-parte orders were well settled in the case of Mbogo & Another v Shah [1968] EA 93**,** the Court held that:- 4. Firstly, there are no limits or restrictions on the judge’s discretion except that it should be based on such terms as may be just because the main concern of the Court is to do justice to the parties. 5. Secondly, 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. 6. A discretionary power should be exercised judicially and not arbitrarily or idiosyncratically 7. In the end, the Court finds that the Applicant has neither shown any accident, inadvertence, excusable mistake nor error in failing to attend Court and therefore declines to exercise its discretion in her favour. 8. Evidently, the suit was dismissed on 30/6/25, and the Applicant filed the application on the same day; hence, it was brought before the Court in a timely manner. Regrettably, nothing turns on this point. 9. Final order for disposal 10. The application dated 30/6/25 is not merited. It is dismissed. 11. The costs shall be in favour of the respondent. 12. Orders accordingly. **DELIVERED, DATED AND SIGNED AT NAIROBI THIS 23RD DAY OF JULY 2026 VIA MICROSOFT TEAMS.** **J. G. KEMEI** **JUDGE** **Delivered in the virtual presence of:** 1. Ms. Akinyi H/B for Yusuff for the Plaintiff 2. Ms. Nkatha H/B for Mr. Kimanzi for the Defendant 3. CA- Mr. Amos