https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3778

Boru v Mburu alias Mzunguko (Environment and Land Appeal E001 of 2026) [2026] KEELC 3778 (KLR) (19 June 2026) (Judgment) Neutral citation: [2026] KEELC 3778 (KLR) Republic of Kenya In the Environment and Land Court at Isiolo Environment and Land Appeal E001 of 2026 JO Mboya, J June 19, 2026 Between Isaack Godana Boru Appellant and Samson Mburu alias Mzunguko Respondent (Being an Appeal from the Ruling Hon. A M Odhiambo – Senior Resident Magistrate in ELC 4 OF 2015) Judgment 1.The Appellant herein, was the Plaintiff in respect of the original suit; namely; Isiolo CMELC No. 4 of 2015, which suit was fixed for further hearing on the 25.11.2025. On the said date, the suit indeed came up before the Learned Trial Magistrate [Hon. M A Odhiambo- S R M], who called out the suit for hearing, but when neither party responded, she proceeded to and dismissed the suit. 2.It is imperative to reproduce the orders that were made by the Learned Trial Magistrate. 3.The same are reproduced as hereunder:“The case was for hearing. Advocates are not in court and neither are the parties. This is an old suit. The same is dismissed with no orders as to costs for non-attendance. [Order 12 Rule 3] . This suit is dismissed under Order 12 Rule 3 of the Civil Procedure Code, 2010. File marked as closed.” 4.Following the dismissal of the suit on the 25.11.2025, learned counsel for the Appellant filed the Notice of Motion Application dated the 25.11.2025 and wherein the Appellant sought, inter alia; orders to review the dismissal of the suit; and the reinstatement of the suit for hearing and determination on merits. It is instructive to highlight that the application under reference was filed on the same date when the suit was dismissed. 5.The Application dated the 25.11.2025 was heard and disposed of vide ruling dated the 30.01.2026. The Learned Trial Magistrate indicated that same appreciated the reasons/explanation proffered by the Appellant for non -attendance when the matter was called out, but proceeded to and dismissed the application. The Learned Trial Magistrate held, inter alia; that the suit was old; the Appellant had previously occasioned delay in the hearing of the suit; the Appellant had not demonstrated diligence in the prosecution of the suit; and no sufficient cause had been shown to warrant review of the dismissal orders and reinstatement of the suit. 6.It is the said Ruling and the consequential order, which has aggrieved the Appellant and thus provoked the subject appeal. The Appellant has approached the court vide memorandum of appeal dated the 15.02.2026. The grounds are numerous and prolix in nature. 7.Be that as it may, and for the sake of contextualization, the grounds are reproduced as hereunder:i.That the Learned Trial Magistrate erred in law and in fact by attributing technological failure to the Appellant and dismissing his case.ii.That the learned magistrate erred in law and in fact by blaming the Appellant for the delay of the matter notwithstanding the previous courts position that the matter had to wait for Mwangaza petition No. ELC E008 of 2018 which was pending before the Meru ELC and Isiolo ELC which Respondent used to seek multiple adjournments that delayed the matter at hand.iii.That the learned magistrate’s erred in law and in fact by failure to recognize that the Appellant counsel appeared in the matter while she was making her orders to dismiss and sought to proceed with the matter which the court declined and proceed with matter with court declined and proceeded to dismiss the appellant’s suit.iv.That the learned magistrate erred in law and in fact by failure to appreciate the usual practice where matters are called in the 1st instance in the morning when the court is going through the cause list and allocate time for hearing.v.That Learned Trial Magistrate erred in law and the fact by failing to the appreciate the virtual call briefly dropped and even without considering the counsel was present and it is the power that tripped or got off for less than a minute but proceeded to dismiss the Appellant suit notwithstanding also the counsel answered the court before she lost the call for seconds.vi.That the Learned Trial Magistrate erred in law and fact by failure to appreciate that the Appellant counsel had logged in early enough and was addressing the court prior to power going off and immediately she turned to use her mobile phoned to get back to call however the brief absence of less than a minute caused her matter to be dismissed.vii.That the Learned Trial Magistrate erred in law and fact by failure to appreciate earlier superior court position and precedent on technological failure during hearings.viii.That the learned magistrate erred in law and in fact by proceeding to dismiss the application for reinstatement which was filed the same day of the dismissal and reasons given thereto.ix.That the learned magistrate erred in law and in fact by dismissing the matter in the presence of the Appellant counsel instead of giving her a chance to proceed who also joined the court as it was making the dismissal order.x.That the learned magistrate erred in law and in fact by failure to note that the matter was a part heard and the Appellant was only presenting one last witness who was the county surveyor and was within the court compound.xi.That the learned trail magistrate erred in law and in fact by dismissing the appellant’s application which was not opposed.xii.That the Learned Trial Magistrate erred in law and fact by dismissing the Appellant application for reinstatement of the suit purely on account that the matter was old and need to get out of the court system in all possible manner. 8.The subject appeal come up for directions on the 25.05.2026, whereupon the counsel for the Appellant intimated to the court that same had filed and served the record of appeal. In addition, learned counsel posited that the record of appeal was complete and thereafter sought directions pertaining to the hearing and disposal of the appeal. Furthermore, counsel proposed to have the appeal canvassed by way of written submissions. 9.With the concurrence of the learned counsel for the Respondent, the court proceeded to and issued directions as pertains to the hearing and disposal of the appeal. The directions were: The Appellant shall file and serve written submissions within 7 days from the date of the directions; the Respondent shall file and serve written submissions within 7 days from the date of service; and the matter to shall be mentioned on the 11.06.2026 to ascertain compliance and thereafter to fix a date for Judgment. 10.Learned counsel for the Appellant filed written submissions dated the 28.05.2026 and wherein same has highlighted five [5] key issues. The issues are: The Learned Trial Magistrate failed to properly evaluate and appreciate the explanation for non-attendance; the Learned Trial Magistrate misapprehended the record of the court and the reasons that had culminated into the delay of hearing the matter; the Learned Trial Magistrate erred in blaming the Appellant for stalling the hearing and determination of the matter without lawful basis; the Learned Trial Magistrate improperly and injudiciously exercised her discretion; the Learned Trial Magistrate disregarded the submissions by the appellant; and the Learned Trial Magistrate breached/violated the appellant’s right to fair hearing. 11.Additionally, learned counsel for the Appellant has submitted that the Learned Trial Magistrate erred in invoking and deploying the provisions of Order 12 Rule 3 of the Civil Procedure Rules, 2010 in dismissing the suit, yet the said provisions were irrelevant; and inapplicable in the circumstance[s] of the case. 12.Moreover, learned counsel for the Appellant has also contended that by failing to review the dismissal orders, the Learned Trial Magistrate elevated procedural technicalities above substantive justice. To this end, it has been submitted that the Learned Trial Magistrate did not appreciate the import and tenor of Article 159, [2] [d] of the Constitution, 2010. 13.Flowing from the foregoing submissions, learned counsel for the Appellant has invited the court to find and hold that the subject appeal is meritorious and therefore the same ought to be allowed. The court has been implored to allow the appeal; set aside the impugned ruling; reinstate the suit for hearing and determination on merit. 14.The Respondent filed written submissions dated the 03.06.2026; and wherein the Respondent has canvassed three [3] key issues. The issues are: Whether the Appellant has tendered a reasonable explanation for his failure to attend court on the 25.11.2025 and failure to diligently prosecute his matter; whether there is a basis for the court to exercise its discretionary power to set aside the orders of 25.11.2025 and reinstate the suit for hearing; and Whether there would be any prejudice if the orders sought are granted. 15.Learned counsel for the Respondent has contended that the Learned Trial Magistrate correctly exercised her discretion in dismissing the appellant’s suit for non-attendance pursuant to the provisions of Order 12 Rule 3 of the Civil Procedure Rules, 2010. Nevertheless, it is common ground that learned counsel proceeded to and reproduced the provisions of Order 12 Rule 3 of the Civil Procedure Rules, which relate to a situation where only [sic] the defendant attends court and same does not admit the Plaintiff’s claim. 16.Furthermore, learned counsel for the Respondent has also contended that the Appellant herein had not exercised diligence in prosecuting his suit in the lower court and therefore the suit was rightfully dismissed. In particular, learned counsel has posited that the Appellant was responsible for the delay in the prosecution of the suit in the lower court. 17.Finally, learned counsel for the Respondent has submitted that the Respondent shall be disposed to suffer undue prejudice, hardship and injustice, if the appellant’s suit in the lower court was reinstated. The counsel has contended that the Respondent has been subjected to prolonged litigation and unnecessary anxiety by the Appellant herein. 18.As the result of the foregoing, learned counsel for the Respondent has invited the court to find and hold that the appeal is devoid of merit[s] and thus same ought to be dismissed. In addition, the court has been implored to affirm the ruling of the Learned Trial Magistrate dated and delivered on the 30.01.2026. 19.Having reviewed the record of appeal; the ruling of the Learned Trial Magistrate underpinning the appeal; the grounds of appeal; and upon taking into account the written submissions by/on behalf of the respective parties, only one[1] issue crystalize for consideration and determination. The issue is: Whether the Learned Trial Magistrate improperly and injudiciously exercised her discretion in refusing to reinstate the suit or otherwise. 20.Before venturing to address the singular issue, which has been highlighted in the preceding paragraph [supra], it is important to underscore that what is before me is an appeal challenging the exercise of judicial discretion by the court of the first instance. Though this court is seized of the requisite jurisdiction to interfere with the discretion of the lower court, the jurisdiction is however, circumscribed in nature; and same can only be exercised where it is shown inter-alia; that the Learned Trial Magistrate failed to take into account relevant factors; took into account extraneous issues; misapprehended the facts/ issues for consideration; or basically, exercised her discretion contra the established principle[s] of Law. 21.In the case Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KECA 175 (KLR), the Court of Appeal revisited the elements that were highlighted vide Mbogo Versus Shah [1968] EA and proceeded to state as hereunder:2.The Court of Appeal may only interfere with the exercise of a court’s judicial discretion if satisfied:a.The judge misdirected himself on law; orb.that he misapprehended the facts; orc.that he took account of considerations of which he should not have taken account; ord.that he failed to take account of consideration of which he should have taken account; ore.that his decision, albeit a discretionary one, was plainly wrong. 22.Back to the issue for determination. Did the Learned Trial Magistrate correctly apply and exercise her discretion? To begin with, it is important to underscore that the appellant’s suit in the lower court was actually part heard. In particular, the Appellant had tendered evidence; been cross examined; and re-examined. This much is apparent from the proceedings that were undertaken on the 21.10.2025. 23.Moreover, it is not lost on me that even the Learned Trial Magistrate clearly captured and pointed out that what was coming up on the 21.11.2025 [the date of dismissal of the suit] was further hearing. Insofar as the appellants suit was partly heard and the Appellant had testified, the Appellant could not be dismissed for non-attendance under Order 12, Rule 3 of the Civil Procedure Rules. 24.On the contrary, what the Learned Trial Magistrate ought to have done was to close the appellant’s suit; proceed to close the Respondent ’s suit and thereafter render a Judgment on whether or not, the evidence on record established the appellant’s claim. The Learned Trial Magistrate was enjoined to consider the evidence that was on the record of the court. It was not open for the Learned Trial Magistrate to deploy the summary approach and to dismiss the suit [sic] under Order 12 Rule 3 of the Civil Procedure Rules, 2010. 25.Secondly, it is important to highlight that the provisions of Order 12 Rule 3 of the Civil Procedure Rules 2010, which was deployed by the Learned Trial Magistrate was clearly irrelevant; and inapplicable in the circumstance[s] of the case. Notably, the said provisions can only be deployed when on the scheduled date for hearing, only the defendant attends and does not admit any portion of the plaintiff’s case. In this matter, the record shows that the neither the plaintiff nor the defendant was [sic]present before the Learned Trial Magistrate, when the matter was called out. That much is captured in the proceeding[s] of the Trial Court. 26.To my mind, the invocation and application of Order 12 Rule 3 of the Civil Procedure Rules, 2010, clearly denotes improper exercise of discretion. It is my humble position that the Learned Trial Magistrate misapprehended the import and tenor of the named provisions of the law. The invocation of same denotes a clear error of principle. 27.The provision under reference state thus:3.When only defendant attends [Order 12, Rule 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.(2)If the defendant admits any part of the claim, the court shall give judgment against the defendant upon such admission and shall dismiss the suit so far as it relates to the remainder except for good cause to be recorded by the court.(3)If the defendant has counterclaimed, he may prove his counterclaim so far as the burden of proof lies on him. 28.Additionally, it is worthy to point out that the Learned Trial Magistrate held that the Appellant was responsible and chargeable with the delay attendant to the failure to have the matter expeditiously heard and disposed of. However, the Learned Trial Magistrate failed to take cognizance of the fact that the court had previously been appraised of the existence of a petition, namely; Isiolo ELC Petition No. E008 of 2021, which was said to be related to the dispute before the court. Moreover, the court had thereafter proceeded to direct that the matter beforehand be held in abeyance pending the determination of the said petition. 29.The record of the court clearly shows that the matter was thereafter mentioned variously, with a view to updating [appraising] the court on the status of Petition E008 of 2021. To this end, the proceedings of 13.02.2024 are instructive. 30.The totality of the record, which was obtaining before the lower court drives me to the conclusion that the findings by the Learned Trial Magistrate that the Appellant was the one responsible for delaying the matter, are not well founded. Had the Learned Trial Magistrate reviewed the record, same would no doubt, have come to a contrary position. 31.There are two [2] other aspects that merit consideration. The first aspect touches on and concerns the failure by the Learned Trial Magistrate to interrogate the veracity of the explanation that was given by learned counsel for the appellant. Suffice it to state that learned counsel swore an elaborate affidavit and indicated that same had logged onto the court platform [virtual] but her call dropped because of power outage. 32.In addition, learned counsel for the Appellant posited that as soon as her power was restored, she logged back onto the virtual platform and found the court issuing dismissal orders. 33.There is no gainsaying that the application seeking review of the orders dismissing the suit was indeed filed on even date. The filing of the said application on the same date, constitute an indication that indeed counsel for the applicant was bona fide in her disposition. To my mind, the timelines attendant to the filing of the application, was a critical element that ought to have been taken into account, by the Learned Trial Magistrate, in an endeavour to discern sufficient cause. 34.I now wish to turn to the last aspect. The aspect herein touches on the subject dispute. It is common ground that the dispute before the court was in respect of the disputed properties. Insofar as the dispute concerned land, it was incumbent upon the trial court to endeavor, as much as possible, to have the dispute determined on merits. Merit determination would avert the filing of [sic] a plethora of applications or driving the parties to resort to [sic] self -help mechanisms, some of which may have serious ramifications. 35.From the foregoing, I am duly persuaded that the Learned Trial Magistrate did not properly and judiciously exercise her discretion. On the contrary, I find and hold that the Learned Trial Magistrate failed to take into account material issue[s] which were pertinent in assessing the bona fides of the application beforehand. In addition, the Learned Trial Magistrate also took into account extraneous issues, including the delay in the hearing of the matter, which were being attributed to the Appellant, albeit without regard to the record before the court. 36.Consequently, and in the premises, the Appellant herein has clearly established the ingredients that were highlighted in the case of Mbogo versus Shah [1968] EA; and thus the Appellant is entitled to favourable orders from this court. Conclusion: 37.The Appellant had contended that the Learned Trial Magistrate improperly and injudiciously exercised her discretion. The Appellant thereafter enumerated various elements that were indicated to vitiate the exercise of discretion. 38.Having reviewed the record, I have pointed out that the Appellant has clearly demonstrated that the discretion was not properly exercised. To this end, I have come to the conclusion that the Learned Trial Magistrate, with respect, misapprehended the provision[s] of the law that was deployed; and thereby committed an error of principle. 39.Regarding the question of costs, I have agonized on whether to award costs or otherwise. However, I wish to point out that the Respondent herein was privy to the circumstance[s] that led to the delayed hearing of the suit in the lower court. But, the Respondent proceeded to and contended that it was the Appellant who was [sic] responsible. 40.The obtaining circumstances drive me the conclusion that this is a matter where costs ought to follow the event. Consequently, and taking into account the provisions of Section 27 of the Civil procedure Act, Chapter 21 Laws of Kenya, I hereby award costs to the appellant. Final orders: 41.In view of the findings and conclusion[s] contained in the body of the Judgment, the final orders that commend themselves to the court are:i.The Appeal be and is hereby Allowed.ii.The ruling of the Learned Trial Magistrate delivered on 30.01.2026 be and is hereby Set Aside.iii.In lieu thereof, the application dated the 25.11.2025 be and is hereby Allowed.iv.Consequently, the orders of the trial court made on the 25.11.2025, dismissing the appellant’s suit be and are hereby Set Aside.v.The Appellant’ suit namely Isiolo CM ELC No. 4 of 2015 be and is hereby reinstated for hearing and determination on merits.vi.The suit shall be heard before any other magistrate other than Hon. M. A Odhiambo – S R M.vii.Furthermore, and taking into account the age of the file, it is hereby ordered that the hearing shall be taken on priority basis.viii.Costs of the appeal be and are hereby awarded to the appellant.ix.Costs in terms of clause [viii] shall be agreed upon and in default be taxed in the conventional way. 42.It is so ordered. DATED, SIGNED AND DELIVERED AT ISIOLO ON 19TH JUNE, 2026.OGUTTU MBOYA; FCIArb; CPM [MTI-EA].JUDGE.In the presence of:Court Assistant: Zakayo /MukamiMs. Asuma holding brief for Mr. Mutembei for the appellant.N/a for the Respondent