https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4122

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT ISIOLO** **ELC APPEAL NO. E035 OF 2025** ISAACK MURIIRA ………………………………..…………..APPELLANT VERSUS ANWAR AHMED……………………………………..……1ST RESPONDENT THE COUNTY GOVERNMENT OF ISIOLO…………….2ND RESPONDENT THE NATIONAL LAND COMMISSION …………..……3RD RESPONDENT THE LAND REGISTRAR………………………….………4TH RESPONDENT THE DIRECTOR OF SURVEY………………….…..…….5TH RESPONDENT THE ATTORNEY GENERAL…………………..…………6TH RESPONDENT ***[Being an appeal against the dismissal and decree dated 09.12.2025 by Hon. M. A Odhiambo – S R M in Isiolo CMELC No. 18 of 2020]*** **JUDGEMENT** 1. On the 11.11.2025 the original suit, *namely;***Isiolo CMELC No. 18 of 2020**, came up for mention/directions before the Hon. M A Odhiambo – Senior Resident Magistrate [SRM], whereupon the learned trial magistrate proceeded to and issued various directions as pertains to the expeditious hearing and determination of the suit. 2. The directions which were issued by the learned trial magistrate are pertinent. To this end, it is imperative to reproduce same. The directions were: **“*The hearing shall proceed on the 09.12.2025. The Plaintiff shall avail all his witnesses on the next hearing date. Failure to avail witnesses, the case will stand automatically dismissed. Failure to avail all witnesses, the case will/shall be marked as closed with the witnesses on record.”*** 1. Additionally, the learned trial magistrate proceeded to and issued summons to all the witnesses. Moreover, the trial court directed that the summons issued be duly extracted and served by learned counsel for the Plaintiff. 2. On the return date, *namely*; the 09.12.2025, the matter was indeed called out and whereupon learned counsel for the Plaintiff [now appellant] intimated to the court that same was not ready to proceed. In addition, learned counsel posited that the Plaintiff was desirous to file a formal application to seek judgment as against the Defendants who had neither entered appearance nor filed their statement of defence. 3. Furthermore, learned counsel for the Appellant contended that the Appellant had filed an amended plaint, but failed to file a witness statement aligned to the amended plaint. In this regard, counsel sought an adjournment to enable same to file and serve a witness statement aligned to the amended plaint. Suffice it to state that counsel posited that he was not ready to proceed with the scheduled hearing. 4. Following the submissions by learned counsel for the Plaintiff [now appellant], and taking into account the directions which had been issued on the 11.11.2025, the learned trial magistrate proceeded to and dismissed the suit for want of prosecution. For good measure, the learned trial magistrate held that the directions issued on the 11.11.2025, were explicit, succinct and *devoid* of ambiguity. 5. It is the said decision by the learned trial magistrate which has aggrieved the Appellant and thereby provoking the subject appeal. The Appellant has filed the memorandum of appeal dated the 12.12.2025 and wherein the Appellant has highlighted the following grounds: 6. ***That the learned trial Senior Resident Magistrate erred in law and in fact by prematurely dismissing the Plaintiff’s suit thus denying him the right to a fair hearing or access to justice.*** 7. ***That learned trial Senior Resident Magistrate erred in law and in fact by dismissing the Plaintiff’s suit based on orders issued by the court when no party was present when the said orders were being issued.*** 8. ***That learned trial Senior Resident Magistrate erred in law and in fact by dismissing the Plaintiff’s suit when indeed the Plaintiff and his advocate were present in court only that the Plaintiff’s statement had been amended in tandem with the Plaintiff’s amended plaint.*** 9. ***That learned trial Senior Resident Magistrate erred in law and in fact by dismissing the Plaintiff’s case without following the correct Civil Procedure Rules and not giving proper notice to the Plaintiff before dismissal.*** 10. The subject appeal came up for directions on the 07.05.2026, whereupon learned 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. Moreover, learned counsel sought directions pertaining to the hearing and disposal of the appeal. Besides, learned counsel proposed to have the appeal canvassed by way of written submissions. 11. With the concurrence of the learned counsel for the 1st respondent, albeit in the absence of counsel for the rest of the respondents, the court proceeded to and issued directions pertaining to and concerning the hearing/disposal of the appeal. The directions were: The appeal shall be heard before one Judge, sitting at Isiolo, for one day; the appeal shall be canvassed by way of written submissions; the Appellant shall file and serve written submissions within 14 days from the date of the directions; the respondents shall file and serve written submissions within 14 days from the date of service; and the Appellant shall be at liberty to file and serve rejoinder submissions [if any] within 7 days from the date of service. 12. The Appellant filed written submissions dated the 15.05.2026. The Appellant has highlighted and canvassed three [3] key issues. The issues are: The dismissal of the Appellant’s suit without a hearing has breached/violated the Appellant’s right to fair hearing; the suit was dismissed prematurely; and the subject matter at the foot of the suit/appeal is a land matter and thus same ought to be determined on merits. 13. Regarding the first issue, learned counsel for the Appellant has submitted that every person, the Appellant not excepted, has a right to have any dispute to be resolved/decided in a fair manner, in accordance with the provisions of **Article 50 of the Constitution, 2010.** However, learned counsel has submitted that the learned trial magistrate dismissed the suit without hearing the Appellant and thus the learned trial magistrate violated the appellant’s right to fair hearing. 14. The next issue that has been canvassed touches on and concerns the aspect that the suit was dismissed prematurely. According to counsel for the appellant, same had filed an amended plaint, but had not filed a witness statement aligned to the amended plaint. Counsel has submitted that he sought an adjournment so as to file a witness statement aligned to the amended plaint, but the request was declined. 15. Additionally, it has been submitted that by the time the suit in the lower court was dismissed, some of the Defendants [now respondents] had neither entered appearance nor filed a statement of defence. To this end, learned counsel has submitted that it was necessary for the Appellant to be granted an opportunity to file a formal application to enter Judgment [sic] against the 2nd Defendant. 16. Be that as it may, learned counsel for the Appellant has submitted that the learned trial magistrate proceeded to and dismissed the suit, even though the Appellant had not filed a witness statement aligned to the amended plaint; and before the Appellant could file the formal application for entry of Judgment as against [sic] the 2nd Defendant. 17. The last issue that has been canvassed by the Appellant touches on the nature of the suit property. It has been contended that the dispute before the court relates to an immovable property [land] and therefore, the learned trial magistrate ought to have afforded the Appellant an opportunity to tender evidence and determine the matter on merits, as opposed to technicality. Furthermore, it has been posited that land matters are emotive and hence same deserve to be heard and determined conclusively on merit[s], as opposed to technicality. 1. Flowing from the foregoing, learned counsel for the Appellant has submitted that the appeal is merited and thus same ought to be allowed. In particular, learned counsel for the Appellant has invited the court to set aside the orders made on the 09.12.2025; reinstate the appellant’s suit for hearing and determination on merits; and to award costs to the appellant. 1. The 1st Respondent filed written submissions dated the 04.06.2026 and wherein same has highlighted and canvassed two [2] key issues. The issues are: Whether non -compliance with court orders/directions accrue legal consequences or otherwise; and Whether the Appellant herein was guilty of indolence and want of diligence in the prosecution of the suit before the lower court or otherwise. 2. With regard to the first issue, learned counsel for the 1st Respondent has submitted that the Appellant herein had been given various accommodation and indulgence by the trial court. In addition, it was submitted that learned counsel for the Appellant was present before the court on the 11.11.2025, when the court issued directions as pertains to the hearing and disposal of the suit. 3. Moreover, it has been submitted that the learned counsel for the Appellant was also privy to the further directions by the court and in particular, the directions to the effect that the Plaintiff [now Appellant] was to avail all his witnesses in court on the return date. 4. Despite the clear directions by the trial court, it has been submitted that both the counsel for the Plaintiff [now appellant] and the Plaintiff himself failed to abide by or comply with the directions. To this end, it has been submitted that the learned trial magistrate was correct in dismissing the suit for want of prosecution/non - compliance with the directions of the court. Notably, learned counsel for the 1st Respondent has submitted that court orders and directions are never made in vain. 5. Secondly, learned counsel for the 1st Respondent has submitted that the Appellant and counsel were guilty of indolence and want of diligence. It has been contended that both the Appellant and his counsel had not taken prompt and timeous steps towards having the matter in the lower court heard and disposed of. Moreover, it has been submitted that the Appellant herein had engaged in conduct that was intended/calculated to delay the expeditious hearing and determination of the suit. 6. As a result of the foregoing, it has been submitted that the Appellant herein was not deserving of the equitable discretion of the trial court on the 09.12.2025, when the suit was dismissed for non-compliance with the directions of the court. 7. Additionally, it has been submitted that the Appellant herein was equally not being honest with the trial court on the 09.12.2025. In particular, it has been submitted that when the matter was called out, learned counsel for the Plaintiff [now appellant] informed the court that same would be ready to proceed. It has been posited that premised on the intimation by learned counsel, the learned trial magistrate proceeded to and gave time allocation. 8. Nevertheless, learned counsel for the 1st Respondent has posited that when the allocated time was reached, learned counsel for the Plaintiff [now appellant] beat an about turn and contended that he was not ready to proceed. It has been posited that learned counsel for the Plaintiff raised various issues, whose net effect was to derail and defeat the scheduled hearing. 9. In short, learned counsel for the 1st Respondent has submitted that the overall conduct of the Appellant and his learned counsel, was calculated to delay, obstruct and defeat the hearing of the suit. In this regard, learned counsel has invited the court to take cognizance of the provisions of **Sections 1A and 1B of the Civil Procedure Act, Chapter 21 Laws of Kenya.** 10. Flowing from the foregoing, learned counsel for the 1st Respondent has invited the court to find and hold that the subject appeal is devoid of merits and that same courts dismissal. Simply put, the court has been implored to dismiss the appeal and award costs to the 1st Respondent. 11. Having reviewed the record of appeal; the grounds at the foot of the memorandum of appeal; the impugned decision; and the submissions by /on behalf of the respective parties, two [2] issues crystalize for consideration and determination. The issues are: Whether the dismissal of the appellant’s suit for non-compliance with the directions of the court breached/violated the rights of the Appellant to fair hearing or otherwise; and whether the decision by the learned trial magistrate constitute proper and judicious exercise of discretion or otherwise. 12. Before venturing to address the twin issues, which have been highlighted in the preceding paragraph, it is important to underscore that what is before me is a first appeal. In addition, it suffices to state that the appeal challenges the exercise of discretion by the trial court in dismissing the appellant’s suit for non-compliance with the directions and orders of the court. 13. It is pertinent to underscore that though this court is seized of the requisite jurisdiction to interfere with the discretion of the court of the first instance [lower court], the jurisdiction to interfere is not unfettered. On the contrary, the jurisdiction is circumscribed. This court can only interfere with the exercise of discretion of the lower court, if and only if, it is proven that: The lower court took into account extraneous matters; failed to take into account relevant matters; misapprehended the facts and the circumstances surrounding the matter beforehand; or misconstrued the established principles of the law and thus arrived at an erroneous conclusion. 14. The scope of the first appellate court’s jurisdiction to interfere with the discretion of the lower court has been the subject of various decisions. In particular, the jurisdiction of the first appellate court to interfere with the discretion of the lower court, was illuminated in the case of **Mbogo Versus Shah [1968] EA at page 93 thereof. The court [DE LESTANG JA]** stated thus: ***“I think it is well settled that this Court will not interfere with the exercise of its discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”*** 1. The foregoing position, which highlights the jurisdictional remit of the first appellate court was reaffirmed and reiterated in the case of **Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KECA 175 (KLR).**The Court of Appeal broke down the parameters as hereunder: ***“2. The Court of Appeal may only interfere with the exercise of a court’s judicial discretion if satisfied:*** * 1. ***The judge misdirected himself on law; or*** 2. ***that he misapprehended the facts; or*** 3. ***that he took account of considerations of which he should not have taken account; or*** 4. ***that he failed to take account of consideration of which he should have taken account; or*** 5. ***that his decision, albeit a discretionary one, was plainly wrong.”*** 1. Bearing in mind the principles highlighted in the decisions [supra], I am now well positioned to address the thematic issues, which were isolated for determination. I shall start with the first issue, namely; whether the dismissal of the appellant’s suit for non-compliance with the directions of the court violated the appellant’s rights to fair hearing or otherwise. 1. It is instructive to recall and reiterate that the Appellant approached the lower court vide plaint dated the 17.06.2020. The Appellant sought various reliefs as against the 1st respondent, who was the only Defendant in the lower court at the onset. Thereafter, the Appellant sought and obtained leave of the court to file and serve an amended plaint. To this end, the Appellant filed the amended plaint dated the 02.05.2023. 2. Following the filing of the amended plaint, the suit in the lower court came up for case conference and directions. In particular, the matter came up on the 15.02.2022 when the Plaintiff was given timelines to prosecute the suit. Furthermore, the suit also came up for further directions on the 14.10.2025, when the matter was reallocated to court number 2 for hearing and disposal. 3. It is imperative to outline that the Appellant herein was afforded due opportunity to prosecute his matter. Notably, the right to fair hearing, which entails due notice and opportunity to be heard, was extended to and in favor of the appellant. However, it is not lost on me that despite due notice and opportunity being granted to the appellant, same [appellant] failed to appropriate the opportunity that was granted. 4. Moreover, it is important to point out that on the 11.11.2025, the Appellant was granted an opportunity to be heard. In particular, the lower court issued succinct and apt directions, including that the Appellant was to avail all his witnesses on the return date. In addition, the trial court indicated that in the event of default, the appellant’s suit shall stand dismissed. To this end, there is no gainsaying that the Appellant was actually put on notice and stood duly forewarned. 5. Be that as it may, the Appellant failed to read the warning and adhere to the directions of the court. According to the appellant, the directions by the court and the warning attendant thereto, appear to have been [sic] ‘dead threats’,. I say dead threats because when the Appellant returned to court on the 09.12.2025, same appeared non- challant and still maintained the lackluster posture that had been displayed previously. It is apparent that despite the directions of the court, the Appellant was still indicating that he was not ready. 6. Additionally, the Appellant is also recorded as contending that the matter was not ready for hearing, even though previously, the Appellant himself had signaled compliance with **Order 11 of the Civil Procedure Rules, 2010.** In any event, it is also apparent that by the time the matter was being dismissed it had been in the corridors of the court for more than five years. 7. To my mind, the Appellant had been afforded the opportunity to partake of and appropriate the right to fair hearing. However, the Appellant herein by deliberate action or inaction failed to appropriate the opportunity. I wish to point out that the right to fair hearing does not mean that a party must play hide and seek [lottery] with due process of the court. In addition, it is common ground that the right to fair hearing must be counter balanced with the rule of law and the interest of justice. Furthermore, the right to fair hearing does not only look upto one party, in this case, the Appellant; and disregard the other. 1. In respect of the matter before the lower court, it is worth restating that the Appellant had sued /impleaded the rest of the respondents, including the 1st respondent. In this regard, it is common ground that both the Appellant and the 1st Respondent, were entitled to partake of and benefit from the right to fair hearing. The court was therefore enjoined to balance the rights of the disputants, without tilting the scales unduly in favour of one party. The Appellant herein could therefore not expect to be treated with kid gloves. 2. Furthermore, it is important to recall that the court had issued various directions. The directions of the court were issued so that same could be adhered to or complied with. I hasten to state that the directions/orders of the court are not mere suggestions to be disregarded or ignored with abandon. 3. Additionally, there is no gainsaying that the directions by the court are neither issued for ornamental purposes or to beautify the records of the court. Furthermore, Court orders are not cosmetic in nature. It is time that parties be forewarned that failure to comply with court orders attract and accrue legal consequences. The consequences of such failure are captured *vide* the provisions of **Sections 1A and 1B of the Civil Procedure Act, Chapter 21 Laws of Kenya**. Simply put, the consequences include dismissal of suit[s]. 4. In my humble view, dismissal of [a] suit is well provided for under the law. Dismissal of suit constitutes a segment of fair hearing. In any event, there is no gainsaying that whenever a court of law hears a matter, the court has the liberty to either allow the suit or to dismiss same. It does not mean that a party whose suit has been dismissed, was not granted a right to fair hearing. 5. Pertinently, I beg to underscore that the dismissal of the appellant’s suit *vide* the orders made on the 09.12.2025, did not breach or violate the appellant’s right to fair hearing in terms of **Article 50 [1] of the Constitution 2010,** either as contended or otherwise. 6. On the contrary, it is evident that the Appellant was granted all the opportunity and latitude to partake of or benefit from the right to fair hearing, but same threw his birthright with the water. The Appellant can only blame himself and not otherwise. 7. Before concluding on this issue, it apposite to reference the holding in the case of **Tana Teachers’ Cooperative and Credit Society Limited v Andriano Muchiri [2018] KECA 192 (KLR).** The Court of Appeal while dealing with a similar situation, where a party had failed to comply with the directions of the court stated thus: ***“Although parties are always in haste to invoke the “overriding principle” when seeking favourable exercise of discretion by the courts or covering up for some infractions they may have committed, they tend to forget that Section 1A (3) Civil Procedure Act as well as section 3A Appellate Jurisdiction Act enjoins them to assist the court in ensuring that court directions are complied with and that justice is dispensed expeditiously. A party cannot egregiously fail or refuse to comply with directions of the court claiming that the said directions were salutary and not accompanied by any sanctions and hope to seek refuge in the overriding principle. That in our view amounts to gross abuse of court process. There must be an end to litigation and it behoves this Court to tell the Appellant that its journey ends at this point.”*** 1. The next issue that falls for consideration is whether the learned trial magistrate exercised her discretion correctly and judiciously in dismissing the appellant’s suit.To start with, it is not lost on me that the appellant’s suit had been in court for more than five years. In addition, the matter had come up for hearing on various occasions, but same was adjourned at the instance and request of the appellant. 2. Furthermore, it is worthy to recall that the Appellant was aware and knowledgeable of the fact that the rest of the Defendants had neither entered appearance nor file statement[s] of defence to the amended plaint. To this end, learned counsel for the Appellant proceeded to and obtained interlocutory Judgment as against the 2nd, 3rd , 4th , 5th and 6th Defendants. [See the proceedings and orders made on 07.11.2023 in the presence of the Plaintiff]. 3. Despite the fact the Plaintiff and his counsel were aware that interlocutory judgment had been entered against the named respondents, learned counsel for the Appellant still appeared before the trial court and sought to mislead the court. For good measure, learned counsel for the Appellant is on record seeking to be granted more time to file a formal application for entry of interlocutory judgment. I beg to state that the submissions that were being made before the trial court were fraught with distortion and dishonesty. 1. Other than the foregoing, it is important to highlight that counsel for the Appellant had also appeared before the trial court during the call over and intimated to the court that same was ready to proceed. Premised on the intimation, the trial court proceeded to and allocated time for hearing. However, when the allocated time reached, learned counsel for the Appellant switched gears and beat an about turn. Such conduct bring the administration of justice to disrepute. Such conduct equally de-mean the integrity of the advocate[s] concerned. 2. Finally, I wish to point out that the orders and directions of the learned trial magistrate which were issued on the 11.11.2025, were self-executing. The orders in question contained a default clause. It was incumbent upon the Appellant to either avail his witnesses and proceed with the hearing, or be met with the legal consequences of the default clause. The Appellant did not avail his witnesses. The Appellant posited that he was not ready to proceed. In this regard, the Appellant had to suffer the obvious consequence of dismissal. 3. To my mind, the learned trial magistrate correctly exercised her discretion in dismissing the suit for non-compliance with the directions of the court. Further, and in any event, there is no gainsaying that the learned trial magistrate was herself bound by the directions which had been issued on the 11.11.2025. Simply put, the die was cast. There was no two way about it. 1. Before concluding on this issue, it is appropriate to underscore that parties [litigants] and their learned counsel [if any] are obligated to assist the court to realize the aspirations of the **Article 159 [2] [b] of the Constitution, 2010.** Justice must not be delayed. 2. In case of **Said Sweilem Gheithan Saanum v Commissioner Of Lands (being sued through Attorney General) & 5 others [2015] KECA 284 (KLR),** the Court of Appeal highlighted the importance of hearing and disposing matters without undue delay. The court stated thus: **“*In terms of Article 159 of the Constitution and sections 1A, 1B and 3A of the Civil Procedure Act on which the court below was invited to consider the application, the court’s duty is to avoid any form of prejudice or hardship caused by delay to the parties.*** **“Justice shall not be delayed”*is no longer a mere legal maxim in Kenya but a constitutional principle that emphasizes the duty of the advocates, litigants and other court users to assist the court to ensure the timely and efficient disposal of cases. The principles which are reiterated by sections 1A and 1B of the Civil Procedure Act are intended to facilitate the just, expeditious, proportionate and affordable resolution of disputes. The principle cannot therefore be a panacea which heals every sore in litigation, neither is it a licence to parties to ignore or contravene the law and rules of procedure.****“* **Conclusion** 1. The Appellant had complained that the dismissal of his suit for non-compliance with the directions of the court violated his right to fair hearing. However, the Appellant had forgotten that same had been afforded due opportunity to prosecute his case but had failed to do so. Moreover, the Appellant forgot that the right to fair hearing does not envisage playing lottery with the due process of the court. 1. It is important to reiterate that judicial time is the only asset that the judiciary has. The manner in which the time is managed, plays a critical role in the dispensation of justice. To this end, it behooves parties, the Appellant not excepted, to appraise themselves of the import and tenor of **Sections 1A and 1B of the Civil Procedure Act, Chapter 21 Laws of Kenya.** 1. With the foregoing in mind, I have no hesitation in finding and holding that the subject appeal is *devoid* of merits. To find otherwise, would be tantamount to sanctioning the slovenliness on the part of the Appellant and his learned counsel, which I am not prepared to do. **Final orders:** 1. Flowing from the foregoing, the final orders that commend themselves to the court are: 2. ***The Appeal be and is hereby Dismissed.*** 3. ***The dismissal orders of the lower court dated the 09.12.2025 be and are hereby Affirmed.*** 4. ***Costs of the Appeal be and are hereby awarded to the 1st Respondent.*** 5. ***The Costs in terms of clause [iii] shall be agreed upon and in default be taxed in the conventional manner.*** 6. It is so ordered. **DATED, SIGNED AND DELIVERED AT ISIOLO ON 30TH JUNE, 2026.** **OGUTTU MBOYA; FCIArb; CPM [MTI-EA].** **JUDGE.** In the presence of: Court Assistant: Zakayo /Mukami Mr. Mwirigi Mbaya for the 1st Respondent N/A for the Appellant N/A for the 2nd, 3rd, 4th, 5th and 6th Respondents.