https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3749

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT THIKA** **ELC NO. E009 OF 2023** **IN THE MATTER OF LAND KNOWN AS KIAMBAA/KARURI/T.1147** **AND** **IN THE MATTER OF SECTION 38 OF THE LIMITATION OF ACTIONS ACT, CHAPTER 22** **AND** **ORDER 37 OF THE CIVIL PROCEDURE RULES OF THE LAWS OF KENYA** **BETWEEN** **GLADYS WANJIRU GACHEMA………………..……..PLAINTIFF/APPLICANT** **AND** **GRACE WAMBUI…………………………...……DEFENDANT/RESPONDENT** **RULING** 1. This Ruling is in respect of the Notice of Motion Application dated 26/02/2025, through which the Plaintiff/Applicant seeks the intervention of this Court to set aside the orders of dismissal entered on 25/02/2025 and to reinstate the suit for hearing on its merits. The Application is brought under Sections 1, 1A, 3, and 3A of the **Civil Procedure Act**, Order 12 Rule 7 of the **Civil Procedure Rules**, and Articles 50(1) and 159(1)&(2) of the **Constitution of Kenya**. The Applicant seeks the following orders: 2. Spent. 3. **THAT** the Honourable Court be pleased to set aside its orders issued on the 25/02/2025 dismissing this suit and in place thereof make an order for the reinstatement of this suit and the reinstatement of all interim orders previously granted in this matter. 4. **THAT** this Honourable Court be pleased to set the matter for hearing on a priority basis on merit. 5. **THAT** the costs of this application be in the cause. 6. The Application is based on the grounds that when the matter was called via the virtual Court’s call-over on 25/02/2025, Counsel for the Applicant informed the Court that the Plaintiff’s witness was indisposed and sought a brief adjournment. 7. That despite the application for adjournment, the Court confirmed the hearing for 11:00 AM. Counsel proceeded to the physical Court in Thika from Nairobi, but by the time of arrival, the suit had already been dismissed. 8. That the suit property, **KIAMBAA/KARURI/T.1147**, has been the Applicant's home since 1987. The claim involves over 30 years of open, continuous, and uninterrupted occupation, raising sensitive issues that merit a full trial. 9. According to the Applicant she stands to be unfairly condemned unheard if the suit is not reinstated, potentially losing her home of three decades without the opportunity to present her defense. 10. That the application is brought without undue delay and dismissal is a draconian order that defeats the overriding objective of our constitutional and civil procedure framework. 11. Further the application is supported by the Affidavit of **JANE WACHUKA GERALD** sworn on 26/02/2025. The Deponent, who is the Counsel of the Plaintiff/Applicant, outlines the procedural history and the substantive merits of the case to justify the setting aside of the dismissal orders. 12. The Deponent states that when the matter was called for hearing via the virtual Court’s call-over on the 25/02/2025, she moved the Court for an adjournment on the basis that the Applicant’s witness was indisposed. Despite this plea, the Court confirmed the hearing for 11:00 am. The Deponent contends that by the time she travelled from Nairobi to the physical Court in Thika to attend the scheduled session, the Honorable Court had already proceeded to dismiss the suit in its entirety. 13. She further avers that contrary to assertions by the Respondent’s Counsel regarding numerous delays, the Deponent clarifies that this was the first time the matter had been scheduled for a substantive hearing. A previous date the 12th of April, 2024 fell through because the Honorable Judge was away on official duties. To demonstrate the Applicant's consistent interest in the matter since its inception in 2023, the Deponent relies on the Case Activities column from the Judiciary’s e-filing platform, annexed and marked as **“JWG1” (pages 1-2)**. 14. Further that the Affidavit emphasizes that the suit involves sensitive triable issues concerning land ownership. The Applicant claims to have occupied the suit property openly, continuously, and as of right since 1987 a period exceeding 30 years. Consequently, the suit is predicated on the doctrine of adverse possession and the preservation of the Applicant’s long-term home. 15. The Deponent characterizes the dismissal of the suit as a draconian order that effectively shuts the doors of justice on a litigant without a hearing on the merits. It is argued that the non-attendance was due to inadvertence and was not deliberate. That interim preservation orders were already in place to protect the subject matter. 16. She deposes that reinstatement is necessary to satisfy the Overriding Objective of the constitutional framework and the Civil Procedure Rules, ensuring that the Applicant is not unfairly condemned unheard. Further that the application has been brought without undue delay. 17. The Application is opposed vide a Replying Affidavit sworn by the Respondent on 21/03/2025. The Respondent seeks to have the application dismissed, asserting that the litigation has been characterized by dilatory tactics and a lack of merit. 18. The Respondent acknowledges the dismissal of the suit due to the non-attendance of the Applicant and her Counsel. However, she specifically deposes that the Applicant failed to provide any medical evidence or documentation to substantiate the claim of illness that supposedly prevented the witness's attendance. The Respondent maintains that the failure to attend was a choice rather than an excusable misfortune. 19. It is the Respondent’s contention that the Applicant has a history of failing to prosecute various applications and previous cases. She asserts that these delays are deliberate maneuvers intended to allow the Applicant to continue enjoying interim orders without the matter reaching a final determination. Invoking the legal maxim that litigation must come to an end, the Respondent argues against any further indulgence by the Court. 20. The Respondent affirms her status as the legal and registered owner of the suit property, specifically land parcel **Kiambaa/Karuri/T.1147**. She deposes that this parcel is a subdivision of the larger land parcel **Kiambaa/Karuri/T.34**. To prove her indefeasible title to the land, she relies on the **Title Deed** annexed and marked as **“GW 1”**. 21. The Respondent presents herself as the rightful owner of the land and views the current application as a continuation of the Applicant's pattern of stalling the proceedings. She urges the Court to uphold the dismissal of the suit to prevent further prejudice to her rights as the registered proprietor. 22. The Application was canvassed by way of written submissions and the Applicant filed their submissions dated 3/06/2025. Counsel for the Defendant informed the Court on 04/02/2026 that they were not going to file any written submissions but that they will rely on their Replying Affidavit dated 21/03/2025 filed in Court. **Analysis and Determination** 1. The Court has meticulously evaluated the pleadings, the rival Affidavits, and the written submissions on record. The Applicant’s case for reinstatement is anchored on the principle of the right to be heard and the assertion that the non-attendance on the hearing date was due to an indisposed witness and a logistical delay in transit from Nairobi to Thika. Conversely, the Respondent maintains that the dismissal was justified due to a lack of medical evidence to support the alleged illness and a perceived pattern of dilatory conduct intended to exploit interim orders. 2. In resolving this impasse, the Court must balance the Respondent’s right to the finality of litigation against the Applicant’s right to substantive justice as enshrined in **Article 159** of the Constitution. 3. Having considered the matter, the Court identifies two key issues for determination: 4. **Whether the Applicant has established sufficient cause to warrant the setting aside of the dismissal orders and the reinstatement of the suit.** 5. **Whether the Respondent will suffer any prejudice that cannot be compensated by an award of costs if the suit is reinstated.** 6. On the first issue, the power of the Court to set aside a dismissal for non-attendance is discretionary, provided under **Order 12 Rule 7** of the **Civil Procedure Rules**, which states: ***"Where a suit is wholly or partly dismissed under rule 3, the Court may, on application, set aside the dismissal upon such terms as to costs or otherwise as it thinks fit."*** 1. *The power of the Court to set aside a dismissal for non-attendance is discretionary, provided under Order 12 Rule 7 of the Civil Procedure Rules, which states:* *"Where a suit is wholly or partly dismissed under rule 3, the Court may, on application, set aside the dismissal upon such terms as to costs or otherwise as it thinks fit."* 1. In exercising this discretion, the Court is guided by the Overriding Objective contained in Sections 1A and 1B of the Civil Procedure Act, which mandates the Court to facilitate the just, expeditious, and cost-effective determination of disputes. 2. In the case of **Shah v. Mbogo [1967] EA 116**, the Court held: ***"This discretion is intended so to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable error or ignorance, but is not designed to assist a person who has deliberately sought (whether by evasion or otherwise) to obstruct or delay the cause of justice."*** 1. In the present matter, while the Respondent correctly points out the absence of a medical certificate, the Court notes that the Applicant’s Counsel did indeed appear at the virtual call-over to intimate the witness's indisposition. The subsequent delay in reaching the physical Court in Thika from Nairobi, while regrettable, does not appear to be a deliberate obstruction of justice. 2. Furthermore, the suit involves a claim of Adverse Possession for a period exceeding 30 years. In **Patel v. East Africa Cargo Handling Services Ltd [1974] EA 75**, the Court observed: ***"The main concern of the Court is to do justice between the parties, and the Court will not impose conditions which form a barrier to justice ... a suit should be adjudicated upon its merits rather than on technicalities."*** 1. On the second issue the Respondent argues that litigation must come to an end. While this is a hallowed legal maxim, it must not be used to suppress a triable issue involving a person’s home of three decades. 2. The Court finds that the Respondent’s title to **KIAMBAA/KARURI/T.1147**, evidenced by Annexure **"GW 1"**, is the very subject of the dispute. If the suit is not reinstated, the Applicant is condemned unheard regarding her claim of occupation since 1987. As stated by the Court of Appeal in **Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR**: ***"Deviations from and non-compliance with procedural rules need not always be fatal if they do not cause prejudice or a miscarriage of justice ... The focus should be on substantive justice."*** 1. Any prejudice suffered by the Respondent due to the delay can be adequately mitigated by an order for costs. 2. Consequently, and for the reasons aforementioned, this Court finds that the Application is meritorious. I therefore make the following orders: 3. ***The Order of this Court issued on the 25/2/2025 dismissing the suit is hereby set aside.*** 4. ***The Suit is hereby reinstated for hearing and determination on its merits.*** 5. ***All interim orders******that were in force prior to the dismissal of the suit are hereby reinstated pending further directions from the Court.*** 6. ***The matter shall be mentioned******on 20/07/2026 for setting up of a hearing date.*** 7. ***The Applicant to pay thrown away costs of Kesh 40,000 to the Respondent.*** 8. ***The costs******of this application shall be in the cause.*** **Orders Accordingly.** **DATED, SIGNED AND DELIVERED AT THIKA THROUGH MICROSOFT TEAMS ON THIS 16TH DAY OF JUNE, 2026.** …………………………… **MOGENI J** **JUDGE** **Ruling read in virtual Court in the presence of:** **M/s Wachuka for the Plaintiff** **Mr. Gatitu for the Defendant** **Ms Lilian - Court Assistant.** …………………………… **MOGENI J** **JUDGE**