https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3573

**** **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAIROBI** **MILIMANI LAW COURTS** **ELC CASE NO. 344 OF 2015** **INDIAN SPRAY PAINTERS LIMITED.................................................................PLAINTIFF** **VERSUS** **PLACID VIEW PROPERTIES LIMITED......................................................1ST DEFENDANT** **INTRATRACTOR COMPANY LIMITED.................................................2ND DEFENDANT** **THE CHIEF LAND REGISTRAR...............................................................3RD DEFENDANT** **RULING** **The Application** 1. Before this Court for determination is a Notice of Motion dated **14th November 2025**, brought under **Sections 1A, 1B, 3 and 3A of the Civil Procedure Act, Order 17 Rule 2 and Order 51 Rule 1 of the Civil Procedure Rules and all other enabling provisions of the law**, through which the Plaintiff/Applicant seeks the following orders: 2. That this Honourable Court be pleased to set aside the orders of 22nd September 2020 dismissing this suit for want of prosecution and thereby reinstate the suit for hearing and determination on its merits. 3. That upon grant of prayer (a) above, leave be granted to amend the Plaint dated 27th April 2015 as appropriate. 4. That the costs of this application do abide the final outcome of the suit. 5. That this Court be at liberty to issue such further or other just and equitable orders as may be necessary in the interest of the final and conclusive determination of the dispute between the parties. 6. The application is premised on the grounds appearing on its face and is supported by the Affidavit of Gurjeet Ghaley, a Director of the Plaintiff Company. The Applicant avers that by a consent recorded on 17th February 2016, the parties agreed to stay these proceedings pending the hearing and determination of a reference before the National Land Commission concerning the suit property, being LR No. 209/11909. 7. It was deponed that the parties duly participated in the proceedings before the Commission between the years 2017 and 2019 but no formal communication of the outcome of the reference was ever made to either the parties or the Court. 8. The Applicant further avers that while the matter remained stayed, this Court, on its own motion, issued notices to show cause why the suit should not be dismissed for want of prosecution and subsequently dismissed the suit on 22nd September 2020. According to the Applicant, neither the Plaintiff nor its advocates on record were served with the said notices. It was deponed that the Plaintiff's former advocates had relocated their offices from Nairobi to Kisii and ceased operating from their previous address, with the result that the notices never came to their attention or that of the Plaintiff. 9. It was further deponed that the Plaintiff only became aware of the dismissal after instructing its current advocates in August 2025 to audit and establish the status of its pending legal matters. Upon perusal of the court file, it was discovered that the suit had been dismissed despite the subsistence of the stay orders and before any communication had been received from the National Land Commission regarding the outcome of the reference. The Applicant contends that the dismissal was therefore occasioned by circumstances beyond its control and not by any deliberate failure to prosecute the suit. 10. The Applicant further avers that the dispute over the suit property remains unresolved and concerns alleged encroachment, annexation and displacement of the Plaintiff's title through the creation of subsequent titles in favour of the 1st and 2nd Defendants. According to the Applicant, the reinstatement of the suit is necessary to enable the Court determine the substantive issues in controversy and to allow the Plaintiff to amend its pleadings so as to bring before the Court subsequent developments affecting the suit property and the rights of the parties. **Response** 1. The application was opposed by the 1st Defendant through a Replying Affidavit sworn on 2nd February 2026 by Conrad Anangwe Maloba, Advocate and Managing Partner of the firm representing the 1st Defendant. He deponed that the suit was lawfully dismissed for want of prosecution on 22nd September 2020 and that the Plaintiff had taken no steps for a period exceeding five years to challenge, review or appeal against the dismissal order. According to the 1st Defendant, the present application has been brought after inordinate and unexplained delay and does not meet the threshold for reinstatement of a dismissed suit. 2. It was further deponed that the dispute had been referred by consent of the parties to the National Land Commission for determination pursuant to its constitutional and statutory mandate. The 1st Defendant averred that the Commission heard the parties and rendered its determination on 28th April 2017, following which it published Gazette Notice No. 6862 of 17th July 2017, through which the Plaintiff's grant over LR No. 209/11909 was revoked. It was contended that the issues sought to be litigated in this suit were consequently overtaken by events and that the Plaintiff's claim, if any, lies in proceedings challenging the determination of the National Land Commission rather than in the revival of the present suit. 3. The 1st Defendant further averred that the stay of proceedings pending the National Land Commission reference did not relieve the Plaintiff of its obligation to diligently monitor and prosecute its case. According to the deponent, it was incumbent upon the Plaintiff to follow up on the outcome of the reference and keep the Court apprised of the status of the matter. The 1st Defendant contended that the Plaintiff cannot shift responsibility for its inaction to the Court, the National Land Commission or the Defendants, and that the explanations relating to the relocation of its former advocates and internal changes within the company do not constitute sufficient cause for the prolonged delay. 4. It was further deponed that reinstatement of the suit would occasion substantial prejudice to the 1st Defendant, particularly given that more than ten years have elapsed since the suit was instituted and over five years since its dismissal. The 1st Defendant asserted that litigation must come to an end and that the Plaintiff had failed to demonstrate promptness, diligence or good faith necessary for the exercise of the Court's discretion in its favour. Consequently, the Court was urged to find that the application is devoid of merit, constitutes an abuse of the court process, and ought to be dismissed with costs. 5. In a Supplementary Affidavit sworn by Gurjeet Ghaley, the Plaintiff challenged the competency of the 1st Defendant’s Replying Affidavit on the ground that it was sworn by an Advocate having conduct of the matter on behalf of the 1st Defendant, yet the matters raised were contentious and ought to have been deponed to by the substantive party. The Plaintiff further averred that there had been no specific and express determination of Reference No. 209/11909 pursuant to the consent dated 17th February 2016, which had stayed the suit pending the decision of the National Land Commission. It was deponed that this suit predated the subsequent actions by the Ministry of Lands, KENHA and the National Land Commission, including the recommendation for revocation of the title to LR No. 209/11909 through Gazette Notice No. 6862 of 17th July 2017. 6. The Plaintiff further averred that the substantive grievance against the Defendants remains alive and concerns the alleged interference with, encroachment upon, annexation and displacement of LR No. 209/11909 through titles created later in time, namely LR Nos. 209/12367, 209/15663 and 209/12858. It was contended that the 1st Defendant remains a necessary party to the proceedings, and that even any challenge to the revocation of the Plaintiff’s title would not resolve the civil dispute relating to encroachment, compensation and damages. The Plaintiff maintained that it had fully disclosed the relevant historical and factual background, including matters potentially adverse to its case, and urged the Court to balance the interests of the parties by reinstating the suit so as to allow the dispute to be determined finally and avoid multiplicity of proceedings. **SUBMISSIONS** 1. The application was canvassed by way of written submissions. Counsel for the Plaintiff submitted that the issues arising for determination were *whether the Plaintiff had demonstrated sufficient cause to warrant the exercise of the Court’s discretion in reinstating the suit, and whether reinstatement of the suit would occasion prejudice to the Defendants sufficient to outweigh the Plaintiff’s right to be heard on the merits*. Counsel argued that reinstatement of a suit dismissed for want of prosecution is a discretionary remedy dependent on the peculiar facts and circumstances of each case. 2. In support of that proposition, reliance was placed on **Tabuche Vs Tinga & 2 Others (Civil Appeal E003 of 2022) [2024] KECA 551 (KLR) (24 May 2024)**, where the Court of Appeal held that reinstatement of a suit dismissed for want of prosecution is not a remedy available as of right but one that depends on the circumstances of each case. Counsel also relied on **Kenya Pipeline Company Limited Vs Maguta Producers Limited [2014] eKLR**, where the Court emphasized that judicial discretion must be exercised judiciously and with the objective of doing justice to all parties. 3. Counsel submitted that the delay in prosecuting the suit was excusable, the same having been occasioned by the referral of the dispute to the National Land Commission pursuant to a consent order staying the proceedings, the failure by the Commission to communicate the outcome of the reference, the relocation of the Plaintiff’s former advocates, and changes in the Plaintiff’s management following the death and retirement of key directors. 4. It was argued that the Plaintiff had offered a reasonable and candid explanation for both the delay preceding the dismissal and the period thereafter. Reliance was placed on **Mbogo & Another Vs Shah [1968] EA 93**, where the Court held that judicial discretion should be exercised to avoid injustice arising from accident, inadvertence or excusable mistake, and on **Ivita Vs Kyumbu [1984] KLR 441**, where the Court stated that even where delay is prolonged, the suit ought not to be dismissed if a satisfactory explanation is given and justice can still be done between the parties. Counsel therefore urged the Court to find that no prejudice incapable of compensation by an award of costs would be suffered by the Defendants and to reinstate the suit for hearing and determination on its merits. 5. Counsel for the 1st Defendant submitted that the issues arising for determination were whether the Plaintiff had established sufficient cause to warrant the setting aside of the dismissal order made on 22nd September 2020, and whether the Plaintiff ought to be granted leave to amend its Plaint. Counsel argued that the Plaintiff had been guilty of inordinate and inexcusable delay, having taken no steps to prosecute the suit or challenge its dismissal for a period exceeding five years. 6. Reliance was placed on **Allan Vs Sir Alfred McAlpine & Sons Ltd [1968] 1 All ER 543**, where the Court set out the test for dismissal for want of prosecution, namely whether the delay was inordinate, inexcusable and likely to occasion prejudice to the opposing party. Counsel further relied on **Utalii Transport Company Limited & 3 Others Vs NIC Bank Limited & Another [2014] eKLR**, **Mobile Kitale Service Station Vs Mobil Oil Kenya Limited & Another [2004] eKLR**, **Lawrence Kinyua Mwai Vs Nyariginu Farmers Company Limited & Another [2019] eKLR**, and **Mwangi Gachiengu & 2 Others Vs Mwaura Githuku & Another [2019] eKLR**, for the proposition that it is the primary duty of a plaintiff to diligently prosecute its case and that a litigant cannot evade responsibility by blaming its advocates or failing to monitor the progress of its own suit. 7. Counsel further submitted that the Plaintiff had failed to demonstrate any sufficient cause to justify the Court’s exercise of discretion in its favour and that reinstatement of the suit would occasion grave prejudice to the 1st Defendant by reopening litigation that had effectively come to an end. Reliance was placed on **Republic Vs County Chief Officer, Finance & Economic Planning, Nairobi City County Ex Parte David Mugo Mwangi [2018] KEHC 8750 (KLR)** and **Akshar Logistics Limited Vs Ekasiba [2024] KEELRC 943 (KLR)** in support of the principles of compliance with court processes and finality of litigation. 8. With regard to the prayer for amendment of the Plaint, counsel submitted that the proposed amendments were neither timeous nor necessary for determination of the real issues in controversy, particularly in light of the National Land Commission’s determination concerning the suit property. Reliance was placed on **St. Patrick’s Hill School Limited Vs Bank of Africa Kenya Limited [2018] KEHC 2539 (KLR)**, where the Court restated the principles governing amendment of pleadings. Counsel therefore urged the Court to find that the application lacked merit and to dismiss it with costs. **Analysis and Determination** 1. Having carefully considered the application, the affidavits in support and opposition, the submissions by counsel and the entire record, the sole issue arising for determination is: Whether the Plaintiff has established sufficient cause to warrant the setting aside of the orders made on 22nd September 2020 dismissing the suit for want of prosecution and the reinstatement of the suit together with the consequential reliefs sought. 2. The jurisdiction of this Court to reinstate a suit dismissed for want of prosecution is derived from Order 17 Rule 2 of the Civil Procedure Rules and the Court's inherent jurisdiction to make such orders as may be necessary for the ends of justice. The power to reinstate a suit is discretionary and must be exercised judiciously upon consideration of the circumstances of each case. 3. The discretionary nature of this power has long been recognized by the courts. In **Mbogo & Another Vs Shah [1968] EA 93**, the Court stated: ***“****The discretion to set aside an ex-parte judgment is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error but it is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the cause of justice.”* 4. Similarly, in **Kenya Pipeline Company Limited Vs Maguta Producers Limited [2014] eKLR**, the Court held that: *“The discretion of the court must always be exercised judiciously with the sole intention of dispensing justice to both or all the parties. Each case must therefore be evaluated on its unique facts and circumstances."* 5. The Court of Appeal recently reiterated the same position in **Tabuche Vs Tinga & 2 Others (Civil Appeal E003 of 2022) [2024] KECA 551 (KLR) (24 May 2024)** when it stated that**: *“Reinstatement of a suit dismissed for want of prosecution is a discretionary remedy and not as of right. In any event, each case depends on its own circumstances."*** 6. In determining whether or not to reinstate a suit, the Court is required to consider the length of the delay, the reasons for the delay, whether the delay is excusable and whether the opposite party is likely to suffer prejudice. In the celebrated case of **Ivita Vs Kyumbu [1984] KLR 441**, the Court held as follows:***“****The test is whether the delay is prolonged and inexcusable, and if it is, 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."* 7. The record shows that on 17th February 2016, the parties recorded a consent staying these proceedings pending the determination of a reference before the National Land Commission. The Plaintiff's case is that the reference proceeded before the Commission but no formal communication of the outcome was ever made to either the parties or the Court. The Plaintiff further attributes the delay to the relocation of its former advocates, changes in its management occasioned by the death and retirement of directors and the subsequent discovery in 2025 that the suit had been dismissed on 22nd September 2020. 8. The 1st Defendant has argued that the Plaintiff was under a continuing obligation to monitor the progress of its case and that the delay of over five years after dismissal is inordinate and inexcusable. Indeed, it is settled law that the duty to prosecute a suit rests upon the party who instituted it. However, the peculiar circumstances of this matter cannot be ignored. The proceedings had been formally stayed by consent pending a process before the National Land Commission, and the explanation offered by the Plaintiff regarding the events that followed has not been shown to be entirely implausible. 9. I have also considered the nature of the dispute before the Court. The suit concerns competing claims over land and allegations of encroachment, annexation and displacement of the Plaintiff's title. Those issues have not been determined on their merits. The Court is enjoined, where possible, to sustain rather than terminate litigation, particularly where the dispute concerns proprietary rights and where a party has placed before the Court material explaining the circumstances leading to the delay. 10. While the delay herein is undoubtedly lengthy, I am satisfied that the Plaintiff has offered an explanation sufficient to invoke this Court's discretion. I am not persuaded that the delay was deliberate or intended to obstruct the course of justice. Further, any prejudice that may be suffered by the Defendants can adequately be compensated by an award of costs and by appropriate directions for the expeditious hearing of the suit. 11. In the circumstances, I find that the Plaintiff has established sufficient cause to warrant the setting aside of the orders made on 22nd September 2020 and the reinstatement of the suit. 12. Having found that the Plaintiff has established sufficient cause for the setting aside of the orders made on 22nd September 2020 dismissing the suit for want of prosecution, it follows that the prayer for leave to amend the Plaint should also be granted. The proposed amendments seek to bring before the Court matters that are said to have arisen subsequent to the institution of the suit and which, in the Court’s view, can be more appropriately interrogated at a full hearing. Any prejudice that may be occasioned to the Defendants can be compensated by an award of costs and by granting them leave to respond to the amended pleadings. 13. For those reasons, the Notice of Motion dated 14th November 2025 is allowed on the following terms: 14. The orders made on 22nd September 2020 dismissing this suit for want of prosecution be and are hereby set aside. 15. This suit is hereby reinstated for hearing and determination on its merits. 16. The Plaintiff is granted leave to amend the Plaint within fourteen (14) days from the date hereof. 17. The Defendants shall be at liberty to amend their respective pleadings, if necessary, within fourteen (14) days of service of the Amended Plaint. 18. The suit shall be fixed for case management and further directions on a priority basis. 19. The costs of the application shall abide the outcome of the suit. **It is so ordered.** **DATED**, **SIGNED** and **DELIVERED** virtually at **NAIROBI** on this **10th** day of **June, 2026.** **MOHAMMED N. KULLOW** **JUDGE** **Ruling delivered in the presence of: -** **Mr. Sichangi** for Plaintiff/Applicant **Ms. Mbai** for 1st Respondent **N/A** for 2nd and 3rd Respondents **Philomena W.** Court Assistant