https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1483

Waweru v Kirige & 5 others (Civil Appeal E054 of 2021) [2026] KECA 1483 (KLR) (24 July 2026) (Judgment) Neutral citation: [2026] KECA 1483 (KLR) Republic of Kenya In the Court of Appeal at Nakuru Civil Appeal E054 of 2021 JM Mativo, MB Kairaria & AI Hassan, JJA July 24, 2026 Between John Njoroge Waweru Appellant and Kariuki Kirige 1st Respondent Sampet Kenya Ltd. 2nd Respondent Philip Kamau Kara 3rd Respondent Samuel T. Kabue 4th Respondent Director Of Land Adjudication And Settlement. 5th Respondent Land Registrar 6th Respondent (Being an appeal against the ruling and orders of the Environment and Land Court of Kenya at Nyahururu (M. C. Oundo, J.) dated 14th January 2020 in ELC Case No. 314 of 2017 Environment & Land Case 314 of 2017 ) Judgment 1.This protracted litigation has been in court for three decades. It was instituted by the appellant against the respondents at the High Court of Kenya at Nairobi on 12th July 1996 vide a plaint dated 18th June 1996. The substance of the dispute was that on 29th April 1987, the appellant entered into a sale agreement with the 1st respondent to purchase a 5-acre piece of land known as Ol Kalou Salient Plot Number 2430 Unit Number 334 (Mawingo Farm) for a consideration of Kshs.43,000/=, which was fully paid. At the core of the dispute were allegations of fraud. 2.As the record shows, on 11th July 2002, an interlocutory judgment was entered against the 1st respondent for failing to enter an appearance or file a defense within the prescribed period. On 26th May 2015, the suit was dismissed for want of prosecution under Order 17 Rule 2 (1) of the Civil Procedure Rules. However, on 23rd June 2016, the appellant successfully applied to reinstate the suit. However, the court gave strict directions that the suit must be set down for a pre-trial conference and heard within eight months, failing which it would stand automatically dismissed. On the 7th February 2017, the Court suo moto transferred the suit from Nairobi to the Environment and Land and Court, Nyahururu. 3.On the 4th May 2017 Oundo, J. noted that the appellant had not set down the suit for pre-trial case conference and thereafter for hearing within the 8 months from the 26th June 2016, as per the orders of that date. Accordingly, the learned judge ordered that the suit stood automatically dismissed as per the earlier court order. By an application dated 8th May 2017 brought under Order 17 Rule 2 (1) (2), Order 51 Rule 1 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, the appellant applied for reinstatement of the suit/review of the orders dismissing the suit and that the suit be heard on merits. 4.In support of the application, the appellant’s counsel acknowledged having failed to comply with the orders issued on 23rd June 2016, claiming that the non-compliance was because parties had consented that there be discovery pursuant to the provisions of Order 11 of the Civil Procedure Rules, but they were yet to comply. Counsel also cited difficulties in accessing crucial documents from the office of the Settlement Fund Trustee in respect of which they had sought help from the Hon. Attorney General to no avail, hence, they could not move the matter forward. Counsel also attributed their failure to prosecute the matter to backlog at the Environment and Land Court at Nairobi, which according to him contributed to unavailability of hearing dates. He also blamed shortage of judges. Lastly, counsel submitted that the appellant had a legitimate proprietary claim over the suit property and that the respondents would suffer no prejudice if the re-instatement was granted. 5.On 14th January 2020, Oundo, J delivered a ruling dismissing the appellant’s application for reinstatement of the suit and or review of the orders issued on 23rd June 2016. The learned judge noted that on 23rd June 2016, the court exercised its discretion and despite the fact that the matter had not been prosecuted for close to 13 years, the trial judge reinstated the suit giving the applicant a chance to redeem himself within 8 months. However, the appellant did not bother to redeem his case. The learned judge noted:“14.There is nothing on record to prove that within the 8 months the applicant tried to set the matter down for hearing or to address the court on any difficulties he was facing so as to seek further directions for the court.15.Further, when the orders were issued the Applicant was present in court yet as the record reflects on the 7th February 2017 and on the 4th May 2017 when the matter was called out in court, the applicant had not moved the court. In fact on the 4th May 2017, the court, on its own motion, having found that the applicant had failed to comply with the orders issued on the 26th July 2016, dismissed the suit a second time.…18.…… The question I ask myself is whether it will be possible to conduct a fair hearing after the lapse of 21 years since the suit was filed. Having regard to the fact that the suit was filed in 1996, I find that the delay is a source of prejudice to the Respondent as well as to the fair administration of justice…I also find that the Applicant's conduct in the prosecution of this matter is an abuse of the court process. Accordingly, and with a lot of trepidation, I dismiss the application dated the 8th May 2017. I will, however, not condemn the applicant to costs as he has already lost his right to be heard on merit.” 6.The appellant is now before this Court seeking to overturn the above verdict citing 11 grounds of appeal which for the sake of brevity can be reduced into three as follows:(a)The learned judge erred by acting as an "umpire" who took it upon herself to oppose and dismiss an application that was otherwise unopposed;(b)The learned judge unfairly punished an innocent litigant for the mistakes, omissions, and indolence of his former advocates;(c)Upon his new advocates taking over the file, they unearthed unpresented evidence which should have legally qualified as a "sufficient reason" to warrant a review and reinstatement of the suit under Order 45 Rule 1 of the Civil Procedure Rules, 2010. 7.The appellant prays for an order that the appeal be allowed, the impugned ruling be set aside, and the appellant’s suit be deemed as reinstated and the same be set down for hearing before a different judicial officer and the costs of this appeal be awarded to the appellant. 8.In support of the appeal, the appellant’s counsel submitted that the appellant’s application before the trial court was unopposed, and asserted that the suit was dismissed by the trial court on its own motion on 4th May 2017 without issuing a notice to show cause to the appellant to explain why he had not taken any steps for 8 months. Therefore, the appellant was condemned unheard. Counsel also argued that at the time of making the application for reinstatement, the appellant’s then advocate failed to adduce before the court letters taking steps to fix the case for hearing. According to counsel, the said letters were only discovered by the appellant after his application for reinstatement was dismissed. Counsel argued that it was on the basis of the discovery of new evidence and the mistake of counsel that the appellant appointed a new advocate who applied for review and or reinstatement of the suit. 9.To buttress his submissions, counsel relied on Articles 50 (1) and 159 (2) (d) of the Constitution and Sections 1A, 1B and 3A of the Civil Procedure Act to urge that this Court’s inherent powers exist to ensure just, efficient and cost sharing effective resolution of disputes prioritizing substantive justice over technicalities. Counsel underscored that Order 45 Rule 1 of the Civil Procedure Rules, 2010, allows parties aggrieved by a decree or an order to apply for its review. 10.Counsel relied on Shah vs. Mbogo [1967] EA 116 to argue that discretion must be exercised to avoid injustice arising from mistake or inadvertence and added that in this case the appellant demonstrated sufficient cause. Lastly, counsel argued that by instructing a new counsel, the appellant has demonstrated diligence. He relied on Philip Chemwolo & another vs. Augustine Kubende [1982] KAR in support of the proposition that it does not follow that because a mistake has been made, a party should suffer penalty of not having his case determined on merits. 11.The respondents did not attend court nor did they file submissions despite being served. Therefore, this appeal is undefended. 12.The appellant has faulted the learned judge on several fronts.First, the appellant contends that the learned judge erred by dismissing the suit without serving the appellant with a notice to show cause. This line of reasoning is legally frail and infirm because the trial court in no uncertain terms reinstated the appellant’s suit and ordered the appellant to fix the case for hearing within 8 months. An order specifying that a suit will automatically be dismissed if a party fails to perform an action, such as listing or fixing a case for a hearing within a designated timeframe is known as an "Unless Order.” Courts interpret these conditional orders through a strict, sequential framework focused on unambiguous wording, automatic consequence, and material compliance. As was held in Thind vs. Salvesen Logistics Ltd (UKEAT/0487/09):“Unless orders are an important part of the tribunal’s procedural armoury (albeit one not to be used lightly), and they must be taken very seriously; their effectiveness will be undermined if tribunals are too ready to set them aside.” 13.“Unless Orders” entail what is referred to as the “Principle of Automatic Operation.” A breach of an “Unless Order” results in automatic dismissal without requiring a further order or court hearing. The foregoing statement of the law was underscored in Marcan Shipping (London) Ltd vs. Bazola [2007] EWCA Civ 1351 where the U.K. Court of Appeal held that when an “Unless Order” is breached, the sanction (dismissal) takes effect automatically by virtue of the original order itself. The court does not need to re-examine the case or make a secondary decision; the claim is dead as soon as the deadline expires. This was the case before the learned judge. When the file was placed before him after the expiry of the 8 months, the learned judge noted that the appellant had not complied with the timelines allowed by the court to fix the case for hearing and correctly stated that the case stood dismissed upon the expiry of the 8 months. 14.Because an “Unless Order” carries the ultimate litigation penalty (extinguishing a claim without a trial on the merits), courts apply rigorous interpretive criteria to the text of the order. The language must be crystal clear, prescriptive, and cast iron. The party subject to the order must be able to look at it and know precisely what they must do, and by what exact time, to avoid dismissal. (See Secure BT (Pty) Ltd vs. Norris and Another (21699/2021) [2023] ZAGPJHC 1037 (15 September 2023)). 15.If there is any ambiguity or linguistic doubt as to what "fixing a case for hearing" required (e.g., whether it meant applying for a date, paying a listing fee, or securely obtaining a signed date from the registry), the ambiguity is traditionally construed in favor of the defaulting party to prevent disproportionate striking out. No argument was made before us to suggest that the order was ambiguous. 16.As was held in Wentworth-Wood & Others vs. Maritime Transport Ltd [2016] UKEAT, while the starting point is the ordinary meaning of the words, an “Unless Order” should not be read expansively or punitively against a party if the drafting is vague. Again, there is nothing before us to suggest that the order was vague. 17.The order was “self-propelling” and it came into operation at the lapse of the 8 months. Therefore, it was not necessary for the learned judge to issue a notice to the appellant to show cause why the suit should not be dismissed. It stood dismissed by the operation of the law upon the lapse of the 8 months. Therefore, the argument that the appellant was not issued with a notice to show cause collapses, and with it, the much-hyped argument citing alleged failure to be afforded an opportunity to be heard and violation of Article 50 (1) rights. 18.The other argument presented by the appellant is that the plea for review ought to have been allowed on account of discovery of new evidence. The appellant blames the failure to fix the case on his previous advocate but quickly states that upon taking over the conduct of the file, his “new advocate” discovered letters addressed to the Court requesting for dates. This argument sounds attractive. However, that is how far it goes because it collapses not on one, but several fronts. First, a reading of Order 45 Rule 1 of the Civil Procedure Rules, 2010 leaves no doubt that an application for review of a judgment or order must be brought without unreasonable delay, and an unexplained or inordinate delay is fatal to the application. While Section 80 of the Civil Procedure Act confers the right to seek review, Order 45 Rule 1 of the Civil Procedure Rules attaches a strict procedural prerequisite that the application must be brought timeously. This Court has consistently strictly enforced this principle across several landmark decisions. (See Nyong’o & Others vs. Attorney General (Civil Appeal 250 of 2019) [2026] KECA 200 (KLR) (6 February 2026) (Judgment)). 19.This Court in Pancras T. Swai vs. Kenya Breweries Limited [2014] eKLR held that review is a discretionary remedy, but that discretion can only be activated if the applicant satisfies the statutory guidelines, one of which is moving the Court promptly. The Court established that where a delay is not explained, the Court is left with no material or basis upon which to exercise its discretion to grant a review. A party cannot sleep on their rights and then seek the Court's equitable intervention. 20.This Court in Francis Origo & Ano. vs. Jacob Kumali Mungala [2005] eKLR emphasized that an application for review is not an open-ended mechanism to bypass the timelines of an appeal. More important, the Court was categorical that any applicant seeking the Court's review powers must show utmost diligence. If there is a lapse of time between the date of the challenged decree and the filing of the review, that delay must be meticulously accounted for on a day-to-day basis. In the absence of a plausible explanation, the application must be rejected strictly on the ground of delay. As was held in Habo Agencies Limited vs. Wilfred Odhiambo Musingo [2015] eKLR, it is not enough to simply blame advocates. Parties must take an active interest in their cases. This Court in Sing'oei & 2 Others vs. Teleposta Pension Scheme Registered Trustees [2025] KECA 187 (KLR), reaffirmed that significant delays cannot be justified by blaming a lawyer when the applicant showed no diligence. Lastly, the Supreme Court in George Kang'ethe Waruhiu vs. Esther Nyamweru Munene & Ano. [2021] eKLR ruled that clients must present evidence of active follow-up to avoid consequences of counsel’s negligence. 21.In this case there was a previous delay of 13 years. After the case was reinstated, the appellant never took steps to fix the case for hearing within the 8-month window granted by the court. Other than blaming the “previous advocate” for alleged “inaction” (an accusation which was made casually and in a superficial manner), there is nothing to show the incapacity of body or mind the appellant was suffering from for 8 months such that he could not follow up his case with his advocate. A case belongs to the litigant and not to their advocate; consequently, a client bears a persistent duty to follow up on its progress. While the courts traditionally recognize that a mistake or blunder by an advocate should not automatically punish an innocent client, this "excusable mistake" exception expires if the client exhibits absolute indolence, inaction, or fails to actively manage their legal representative. In this case, we are steering at an unexplained inordinate delay of 8 months.The attempt to pass the blame to the advocate is unpersuasive. The appellant was indolent. 22.We also find no basis upon which the appellant could have expected the learned judge to exercise his discretion in his favour on the face of an 8-month unexplained delay and a detailed history of unexplained delays and dismissals as alluded to earlier. By now, it is manifestly clear that the appellant has not persuaded this Court that the learned judge erred in dismissing his application. Accordingly, we dismiss this appeal in its entirety. Since the respondent did not participate in the appeal, we make no orders as to costs. DATED AND DELIVERED AT NAKURU THIS 24TH DAY OF JULY, 2026.J. MATIVO................................JUDGE OF APPEALMURUNGI B. KAIRARIA................................JUDGE OF APPEALAHMED ISSACK................................JUDGE OF APPEALI certify that this is a true copy of the original.Signed.DEPUTY REGISTRAR.