Dagret Investment Limited v National Land Commission & 3 others (Petition E021 of 2021) [2026] KEELC 3370 (KLR) (3 June 2026) (Ruling)

Dagret Investment Limited v National Land Commission & 3 others (Petition E021 of 2021) [2026] KEELC 3370 (KLR) (3 June 2026) (Ruling) Neutral citation: [2026] KEELC 3370 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Petition E021 of 2021 JG Kemei, J June 3, 2026 Between Dagret Investment Limited Petitioner and National Land Commission 1st Respondent The Chairman of the National Government Fund Committee of Mathare 2nd Respondent Attorney General 3rd Respondent Ministry Of Interior & Cordination Of National Government 4th Respondent ((In respect of the Applicant’s Application dated 25/11/25)) Ruling 1.Before the Court is the Applicant’s application dated 25/11/25, which, in the main, seeks orders setting aside the Court's orders dated 24/11/25 dismissing the Applicant’s suit dated 24/2/2023 for want of prosecution and non-attendance, with costs to the Respondents. The instant application seeks to reinstate the suit for hearing on its merits. 2.The application is grounded in the supporting affidavit of Mr Bryan Opwaka, counsel in the conduct of the suit, sworn on 25/11/25. The deponent deposed that the suit had been scheduled for hearing on 24/11/25. However, on the material date, he encountered technical difficulties with the Microsoft Teams application and was unable to log in to the virtual Court. He avers that his alternative device, his phone, was already logged into another Court, Mahakama Popote, where he was handling a hotly contested children's matter, and therefore he was unable to access this Court. He only managed to access the Court after the call-over, by which time the suit had been dismissed for want of prosecution/non-attendance. 3.The deponent reiterated that the failure to attend Court to prosecute the petition was due to technical difficulties in joining the online platform, and urged the Court that the mistake of counsel should not be visited upon the Petitioner, who would be grossly prejudiced and suffer a loss of Kshs 100 Million, being the value of the suit land, if the Petitioner is not afforded the chance to prosecute its case on merit. The Court was urged to exercise its discretion in favour of the Petitioner in line with the provisions of Article 159 (2) (d) of the Constitution so as to achieve substantive justice for the parties. 4.He added that the application was filed in time and that the Respondents would suffer no prejudice if the suit were reinstated for hearing on its merits. He further stated that the Petitioner has a strong and arguable case and urged the Court to apply the principles of natural justice, which require that no party be condemned unheard. 5.The 1st Respondent did not oppose the instant application. 6.The application is opposed by the 2nd Respondent through the Replying Affidavit, sworn on 17/12/2025 by Olympia Musonye, its Fund Account Manager, who deposed that the suit was dismissed on 24/11/25 for the Petitioner's failure to attend the hearing. Further, the Applicant has not adduced any evidence to show that the alleged technological hitches prevented counsel for the Applicant from addressing the Court on the material date. Nor is there any evidence that the said counsel sought the Court's assistance on the fateful date to explain any predicament. The suit was filed 4 years ago, and its continued non-prosecution prejudices the 2nd Respondent. The Applicant's deliberate delay in prosecuting the suit is, in itself, an injustice visited upon the 2nd Respondent. The Court was urged to dismiss the application. 7.The 3rd and 4th Respondents filed grounds of opposition as follows;a.The application is inept, incompetent and a gross abuse of the Court processb.The Applicant has not demonstrated sufficient cause to warrant reinstatement of the suit, noting that it was filed in 2021 and has not yet proceeded to a hearing.c.That the delay in prosecuting the matter for the last 4 years is inordinate, has not been explained to and therefore is inexcusabled.That Article 159 of the Constitution mandates that the Court, in exercising judicial authority, is to be guided by the principle that justice shall not be delayede.The Petitioners are indolent, and the Court should not exercise discretion in their favour The written submissions 8.The Applicant submitted that Section 3A of the Civil Procedure Act, read together with Order 12 Rule 7 of the Civil Procedure Rules, confers wide discretion on the Court in relation to matters and issues before it, including the question of reinstatement of the instant suit. 9.On whether there was an inordinate delay in filing the application, the Applicant submitted that the application was filed timeously and cited the case of Ivita Vs Kyumu (1984) KLR where the Court stated as follows;“The test is whether the delay is prolonged and inexcusable, and, if yes, can justice be done despite such delay. Justice is justice to both the Plaintiff and the defendant; so both parties to the suit must be considered and the position of the judge too, because it is no easy task for the documents, and, or witnesses may be missing and the evidence is weak due to the disappearance of human memory resulting from the lapse of time…… Thus, even if delay is prolonged, if the Court is satisfied with the Plaintiffs excuse for the delay, the action will not be dismissed but will be ordered that it be set down for hearing at the earliest available time.” 10.Relying on the decision in the above-cited case, the Applicant urged the Court to find that there was no delay in filing the instant application. 11.In urging the Court to exercise its discretion in its favour, the Applicant cited the decision in Bilha Ngonyo Isaac Vs Kembu Farm Limited & Anor [2018] EKLR, where the Court stated that the discretion of the Court is intended to be exercised to avoid injustice or hardship resulting from inadvertence or excusable mistake or error, but is not designed to assist a person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay justice. 12.Urging the Court to exercise discretion in its favour, the Applicant contends that the mishap was beyond the control of the Applicant and its counsel, and that the door of justice ought not be closed to the Applicant, nor should the shortcomings of its counsel be visited upon it. 13.In the end, the Applicant submitted that the non-attendance of the Applicant’s counsel on the material hearing date was not a deliberate act to obstruct or delay justice. 14.The 2nd Respondent, in its submissions dated 23/1/26, was emphatic that, in dismissing the petition, the Court properly exercised its discretion in accordance with the provisions of Order 17 Rule 2 of the Civil Procedure Rules. 15.That the Applicant failed to provide evidence in support of the alleged technical hitches that confronted the Applicant’s counsel on the material date of the hearing while attempting to log in to the virtual Court platform. 16.The 2nd Respondent contended that the primary duty to prosecute the suit rested with the Applicant who initially moved the Court. In the case of Utalii Transport Company Limited & 3 others Vs NIC Bank Limited & Anor [2014] eKLR, the Court stated that;“It is the primary duty of the Plaintiffs to take steps to progress their case since they are the ones who dragged the defendant to Court.” 17.In conclusion, the 2nd Respondent submitted that, in the absence of sufficient justification to revive a suit that has been dormant in the Court for over 4 years for want of prosecution, allowing the application would not only undermine judicial efficiency but also encourage abuse of the Court process by delaying justice. The Court was therefore urged to dismiss the application with costs. Analysis and Determination 18.I have considered the application and the issues that commend themselves to me for determination, are:a.Whether the Court should reinstate the suit as prayed.b.Who should bear the cost of the application? Whether the Court should reinstate the suit as prayed 19.The provisions of Order 12 rule 1 of the Civil Procedure Rules state as follows;“[Order 12, rule 1.] When neither party attends. 1. If on the day fixed for hearing, after the suit has been called on for hearing outside the Court, neither party attends, the Court may dismiss the suit. [Order 12, rule 2.] When only plaintiff attends. 2. If on the day fixed for hearing, after the suit has been called on or hearing outside the Court, only the plaintiff attends, if the Court is attends satisfied — (a) that notice of hearing was duly served, it may proceed ex parte; (b) that notice of hearing was not duly served, it shall direct a second notice to be served; or (c) that notice was not served in sufficient time for the defendant to attend or that for other sufficient cause the defendant was unable to attend, it shall postpone the hearing. [Order 12, rule 3.] When only defendant attends. 3. (1) If on the day fixed for hearing, after the suit has been called on for hearing outside the Court, only the defendant attends and he admits no part of the claim, the suit shall be dismissed except for good cause to be recorded by the Court. 20.It is clear from the record that the suit was fixed for hearing on 24/11/25. On that date, the Applicant and its counsel were absent, and counsel for the Respondents urged the Court to dismiss the suit in the Applicant’s absence. In accordance with para 19 above, the Court dismissed the suit for want of prosecution and non-attendance, with costs to the Respondents. 21.It is this dismissal that has triggered the current application seeking for reinstatement. 22.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.” 23.Reinstatement of a suit is discretionary. Section 3A of the Civil Procedure Act gives the Court inherent power to make such orders as may be necessary to achieve the ends of justice. What the Court is to consider while exercising discretion was emphasized in the case of Esther Wamaitha Njihia & 2 Others -vs- Safaricom Ltd [2014] eKLR where 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.” 24.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:-a.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.b.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.c.A discretionary power should be exercised judicially and not arbitrarily or idiosyncratically 25.The 3rd and 4th Respondents have argued that the suit has remained inactive since 2021 and that its reinstatement would only cause further delays in its prosecution. The Court has reviewed the record and found that the delay in resolving this matter has resulted from various factors, including delays by some Respondents in complying with Order 11 of the Civil Procedure Rules, particularly in preparing trial bundles for the hearing. The parties also requested time to pursue negotiations, which ultimately proved unsuccessful. It is regrettable that these circumstances have contributed to the delay in resolving the matter; however, it is not necessarily attributable solely to the Applicant. 26.The 2nd Respondent asserts that the Applicant has provided insufficient justification for the Court to grant the application. The Applicant’s sole explanation is that its legal counsel encountered technical difficulties when attempting to log in to the virtual Court on the scheduled hearing date, and that an alternative device was being used in another Court where counsel was handling a highly contentious children's matter. Technology has been recognised as a facilitator to access to justice, and within our judiciary, the integration of technology, including virtual Courts, electronic filing systems, and case tracking systems, has been transformative. It is not uncommon for technical issues to arise during virtual hearings on either the Court's or the litigant's end. Nonetheless, when such issues arise, a litigant is expected to seek alternative methods of reconnecting to the online Court as soon as reasonably practicable. If, indeed, the Applicant’s counsel was engaged in a highly contentious matter in another Court, could this have been the reason for his inability to access the Court? Regrettably, this has not been explained. 27.Having said that, I have already found in the instant case that the Applicant has been diligent in prosecuting its suit. Relying on the principle established in the case of Shah vs Mogo (1979) EA 116, cited above, I am persuaded that the reason given by the Plaintiff’s Counsel for his failure to attend Court on 5/5/2025 is excusable. 28.The Court notes that the Plaintiff filed the current application without unnecessary delay, as it was filed one day after the suit was dismissed. In light of the foregoing, I conclude that this matter warrants the exercise of the Court’s discretion in favour of the Applicant, particularly given the Court’s mandate to deliver substantive justice pursuant to Article 159(2)(d) of the Constitution. 29.In the foregoing, I find that justice would be served if the parties are heard on the merits, as dismissal of a suit is a draconian act that drives a litigant away from the seat of justice. This position was amplified in the case John Nahashon Mwangi –vs- Kenya Finance Bank Limited (in Liquidation) [2015] eKLR as follows: -“Courts should sparingly dismiss suits for want of prosecution for dismissal is a draconian act which drives away the plaintiff in an arbitrary manner from the seat of judgment. Such acts are comparable only to the proverbial ‘Sword of the Damocles’ which should only draw blood where it is absolutely necessary.” 30.Final orders for disposala.Therefore, and purely in the interests of justice, the application dated 25/11/25 is hereby allowed.b.Consequently, the orders of 24/11/2025, dismissing the Applicant’s suit in its entirety, are hereby set aside.c.This suit is hereby reinstated on condition that the Applicant sets the matter down for hearing expeditiously, in any event, within 15 days of the date hereof; in default, it shall stand dismissed.d.Costs are in favour of the 2nd -4th Respondents. 31.It is so ordered DELIVERED, DATED AND SIGNED AT NAIROBI THIS 3RD DAY OF JUNE 2026 VIA MICROSOFT TEAMS.J. G. KEMEIJUDGEDelivered Online in the Presence of:1. Mr Opwaka for the Petitioner2. Ms Ogeta H/B for Omwenga for 1st Respondent3. N/A for 2nd and 3rd Respondent4. CA- Ms. Yvette