Cheboswony & another v Ngeno & 4 others (Environment and Land Case 96 of 2014) [2026] KEELC 4720 (KLR) (23 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT ELDORET** **ELC CASE NO. 96 OF 2014** **MARIA SHAKWEI CHEBOSWONY ….................. 1ST PLAINTIFF** **SUBSTITUTED BY PATRICK CHEMWOLO** **CHEMWOLO KELENDICH SOITO ........................ 2ND PLAINTIFF** **VERSUS** **DANIEL CHERUTICH NGENO …………............... 1ST DEFENDANT** **JULIUS KIPTANUI KIPLAGAT …………............... 2ND DEFENDANT** **PHILLIP TUITOEK …………............................... 3RD DEFENDANT** **CHRISTOPHER T. KIPLAGAT …………............... 4TH DEFENDANT** **THE LAND REGISTRAR** **UASIN GISHU COUNTY …………........................ 5TH DEFENDANT** **RULING:** 1. The 1st and 2nd defendants/applicants herein filed a Notice of Motion Application dated 15th April, 2026, seeking the following orders: - * 1. Spent. 2. That the orders made on 15/4/2026 dismissing the application dated 3/11/2025 be set aside. 3. Spent. 4. That the application dated 3/11/2025 be reinstated and heard on merit. 5. Costs of the Application be in the cause. 2. The application is premised on the 8 grounds on the face thereof and supported by the Affidavit sworn on even date by one Elijah Momanyi Mogona, an advocate of the High Court of Kenya, practicing in the firm of Anassi Momanyi & Company Advocates and having conduct of the matter herein on behalf of the applicants. 3. It is deponed that the matter was scheduled for a mention for directions on the application dated 3/11/2025 before this Honourable Court on 15/4/2026. 4. It is however the advocate’s claim that on the said date, there was constant power outages and which led to network challenges and as a result, he was unable to join the virtual court session on time. 5. It is further his claim that by the time he was able to join the virtual court session, the application had already been dismissed for want of prosecution. He thus contends that the applicants did not in any way contribute to his failure to attend court in time but that the non-attendance was as a result of the power outage which was beyond his control. 6. The advocate therefore avers that the 1st and 2nd defendants/applicants have been keen and desirous of pursuing their application dated 3/11/2025 and should not therefore be condemned unheard. 7. He further pleaded that no prejudice would be suffered by the plaintiff since the application had been duly served on the plaintiff’s counsel as evidenced by the attached return of service and the plaintiffs therefore have a right of reply. 8. The application was opposed. The plaintiffs filed a Replying Affidavit dated 18.05.2026 and sworn by Mary Shakwei Cheboswony, on her own behalf and on behalf of her co-plaintiff. 9. She deponed that judgment was delivered in the substantive suit on 16.10.2025 in their favour. 10. She outlined various documents filed and served upon them by counsel for the defendants, on diverse dates to wit, 27/10/2025 and 15/4/2026, which included among others a notice of appeal dated 27.10.2025 and the present application and the accompanying documents. 11. It is her claim that the plaintiffs have never been served with the application dated 3/11/2025 and averred that the email address contained in the applicants’ return of service namely, cheptarusjoseph2019@gmail.com was not operational at the time and that their advocate’s email address which is in operation is lawyerjosephcheptarus@gmail.com. 12. She denied the averments made by the applicants’ advocate on record, particularly the claims that there was a power outage and that he was unable to join the virtual court session as a result of the said power outage and network challenges. It was further her claim that the applicants’ counsel had the option of contacting the plaintiffs’ counsel to inform him of the said challenges as alleged but the same was not done. 13. She maintained that the defendants are solely to blame for their failure to attend court on 15/4/2026 and that they denied themselves the opportunity to be heard. In conclusion, she urged the court to dismiss the application with costs. 14. On 18.05.2026, this court issued directions on disposal of the present application by way of submissions. However, on a perusal of the court record and the online filing platform, only the 1st and 2nd defendants/applicants filed their submissions dated 10.06.2026, which I have read and duly considered. 15. Be that as it may, I will proceed to render my decision as hereunder. **Analysis and Determination:** 1. I have carefully considered the grounds in the application and in the supporting affidavit sworn by the applicants’ counsel on record, Mr. Elijah Momanyi, the replying affidavit in response thereto as well as the applicants’ submissions in totality. Consequently, it is my considered view that the main issue arising for determination is whether the applicants have proved their case to the required standard to warrant the setting aside of the dismissal order issued on 15.04.2026 and the subsequent reinstatement of the application dated 3/11/2025. 2. From the proceedings before this court, on 15.04.2026 Mr. Cheptarus for the plaintiffs informed the court that the matter was coming up for mention to confirm filing of submissions on the application dated 3/11/2025 seeking stay of execution. It was his claim that the applicants had not served them with the application or submissions and were not present in court. He therefore prayed that the application dated 3/11/2025 be dismissed with costs. Ms. Odeyo, counsel for the 5th Defendant, also informed the court that they had not been served. 3. This court subsequently held that in the absence of the applicants and their counsel and who had further not complied with the directions of the court issued on 19.11.2025, the application dated 3/11/2025 be dismissed with costs to the respondents and thereafter closed the file since the matter was concluded and there was nothing pending. 4. The 1st and 2nd Defendants/Applicants have now sought the setting aside of the said dismissal order issued on the 15.04.2026 and for the reinstatement of the application dated 3/11/2025 for hearing and determination on merit. 5. Order 12 Rule 7 gives this court the powers to set aside a judgment or a dismissal order on an application by a party upon such terms as may be fit and just. This power is however discretionary in nature and must be exercised judiciously and not based on sympathy or whimsically as held in the case of ***Mbogo & Another V. Shah [1968] EA 98***. 6. Order 12 Rule 7 of the Civil Procedure Rules provides as follows:- ***7. 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.(emphasis mine).*** 1. The principles outlined in the case of ***Shah v Mbogo (1967 (EA) 116)*** were restated by the Court of Appeal in ***Daqare Transporters Limited v Chevron Kenya Limited [2020] eKLR*** while considering the discretion of the Court under the provisions of order 12 rule 7 of the Civil Procedure Rules as follows: ***“The discretion under order 12 rule 7 is exercised so as to avoid injustice as a result of inadvertent or excusable mistakes and errors. Therefore, a court needs to satisfy itself as to whether the reason given by the appellant was excusable…”*** 1. The applicants herein have premised their ground for setting aside the dismissal order on the failure by their advocate on record to attend court 15.04.2026, when the matter was coming up for mention for directions on the application dated 3.11.2025 and attributed the advocate’s failure to log into the virtual court session on time on constant power outages and network challenges. 2. That as a result of the said network challenges and constant power outage, which the applicants aver was beyond their advocate’s control, the advocate was unable to attend the virtual court session on time hence the dismissal of the application for want of prosecution. 3. The plaintiffs/respondents on their part denied the said claims and blamed the defendants/applicants and their counsel on record for the said dismissal and failure to attend court. It was their contention that the applicants did not demonstrate any effort made in trying to find an alternative including informing the plaintiffs/respondents’ counsel on record and informing him of the said challenges experienced. 4. The question that this court therefore seeks to answer is whether the reasons and basis advanced by the applicants for their non-attendance on the material date are sufficient to warrant the setting aside of the dismissal order issued by this court. 5. Even though counsel for the applicant has attributed his failure to attend court on time on the material date on constant power outage and network challenges and that by the time he was able to join the virtual court session, the matter had already been called out and the application dated 3/11/2025 dismissed for want of prosecution, he did not annex any proof in support of the said averments. 1. Be that as it may, this court is cognizant of its duty to serve substantive justice to all parties to a dispute before it. Each party has a legitimate expectation that they will be given an opportunity to advance their respective cases and a determination reached on merit. This was the holding in the case of ***Wachira Karani vs Bildad Wachira Civil Suit No. 101 of 2011 [2016] eKLR***. 2. In addition, an issue of network challenges as raised by the applicant’s advocate is not an isolated case and/or peculiar to the applicants herein. In fact, even courts do experience network challenges and internet downtime which affects virtual court sessions. However, courts should be mindful of advocates who constantly use this reason as an excuse for their non-attendance. 3. Nevertheless, it is my considered opinion that it is in the interest of justice that a party shall not be condemned unheard nad further that the mistakes of an advocate should not be visited upon the clients. While it is true that cases belong to the litigants and not their advocates, there is a possibility that the applicants herein may not have been aware of the network challenges and technological failures experienced by their counsel on record. 4. Consequently, I will proceed to grant the applicant the benefit of doubt and find that the non-attendance on the part of the 1st and 2nd defendants/applicants’ advocate was not intentional. 5. This court is further guided by the decision in ***CMC Holdings Limited -vs- Nzioki [2004] 1 KLR 173*** it was held that: ***“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 among other things an excusable mistake or error. It would not be proper use of such a 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 in our mind be wrong in principle. We do not think the answer to that weighty issue was 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 might have very well amounted to an excusable mistake visited upon the appellant by its advocate.”*** 1. Thus, guided by case laws cited hereinabove, the provisions of Article 159 of the Constitution on the need for substantive justice as read with Article 50 on the right to a fair hearing and Order 12 Rule 7, I will proceed to grant the applicants the benefit of doubt and set aside the dismissal orders issued on the 15.04.2026. 2. In view of the foregoing, it is the finding of this court that there exists a just and sufficient reason to warrant the setting of the dismissal orders of this court issued on 15.04.2026 and for the reinstatement of the application dated 3/11/2025 as sought. 3. Moreover, in my considered view, no prejudice and/or injustice will be occasioned on the plaintiffs/respondents if the present application is allowed and the application dated 3/11/2025 is reinstated for hearing since all parties will be accorded an equal opportunity to ventilate their rival claims and a determination thereto issued on merit. **Costs:** 1. On the issue of costs, the general rule is that costs shall follow the event unless the court directs otherwise. However, given the circumstances of the case, I will condemn the Applicants to pay costs of the application to the Plaintiff. **Disposition:** 1. In view of the foregoing, I accordingly find that the Notice of Motion Application dated 15th April, 2026 is **merited** and is hereby **allowed** on the following terms:- 2. **The application dated 15.04.2026 is hereby allowed.** 3. **An order be and is hereby issued setting aside the orders made on 15.04.2026 dismissing the application dated 3/11/2025.** 4. **An order be and is hereby issued reinstating the application dated 3/11/2025 for hearing and determination on merit.** 5. **The 1st and 2nd defendants/applicants to pay the plaintiffs/respondents throw-away costs of Kshs. 10,000/=** 6. It is so ordered. **DATED**, **SIGNED** and **DELIVERED** in **ELDORET** this **23RD day** of **JULY, 2026.** **HON. C. K. YANO** **JUDGE** **Ruling delivered in the presence of: -** Mr. Cheptarus for Plaintiffs. Mr. Wainaina for 1st and 2nd Defendants. No appearance for 3rd -5th Defendants. Court Assistant – Laban