https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3581

Mukorwe v John & another (Environment and Land Appeal E012 of 2023) [2026] KEELC 3581 (KLR) (11 June 2026) (Judgment) Neutral citation: [2026] KEELC 3581 (KLR) Republic of Kenya In the Environment and Land Court at Embu Environment and Land Appeal E012 of 2023 EC Cherono, J June 11, 2026 Between John Nthiga Mukorwe Appellant and Catherine Wawira John 1st Respondent The Hon. Attorney General 2nd Respondent Judgment 1.This is an appeal arising from the ruling of the Honourable Senior Principal Magistrate Nyakweba, delivered on 2nd March 2023 in Embu Chief Magistrate's Court, CM ELC No. 92 of 2018 – John Nthiga Mukorwe v Catherine Wawira John – in which the learned trial Magistrate, on his own motion, struck out the pleadings of all parties for failure to comply with pre-trial conference directions, invoking Order 11 Rule 3(2)(d) of the Civil Procedure Rules, 2010. 2.The Appellant, being aggrieved, preferred the present appeal by way of an Amended Memorandum of Appeal dated 24th October 2023 raising four grounds of appeal, which I shall consider seriatim. Background 3.The former suit, Embu-ELC Case No. 92 of 2018, was a product of consolidation of two earlier suits. In the first suit, the Appellant/Plaintiff had filed a plaint dated 17th February 2016 seeking the eviction of the 1st Respondent from Land Parcel No. NGANDORI/KIRIGI/T.100 and an order for mesne profits. The second suit, Embu CM-ELC No. 14 of 2016 – Catherine Wawira John v Daniel Gachoki Ireri & John Nthiga Mukorwe – had been dismissed for want of prosecution on 12th March 2018 under Order 17 Rule 2(1) of the Civil Procedure Rules. 4.The 1st Respondent filed a Defence dated 2nd October 2020, and the 2nd Respondent filed a Defence dated 31st May 2022. By consent, the parties fixed a mention for pre-trial directions on 2nd March 2023. On that date, the trial Magistrate took note that the matter had been filed since 2016 and that no pre-trial conference had been conducted. Parties had also not filed agreed issues for determination as directed. The learned Magistrate thereupon made the following order, suo motu:“This matter was filed in year 2016. Until now, pre-trial conference has not been done. The parties were required to comply by today and file the issues for determination. This has not been done. As a consequence, the pleadings as filed are hereby struck out in accordance with the provisions of Order 11 Rule 3(2)(d) Civil Procedure Rules 2010 for failure to comply with pre-trial directions as directed several times previously and more particularly on 14/02/2023." 5.Aggrieved by the said decision, the Appellant preferred the present appeal. Issues For Determination 6.Upon considering the Memorandum of Appeal and submissions filed by both parties, the following issues commend themselves for determination:(i)Whether the trial court had power, suo motu, to strike out pleadings on a mention date for non-compliance with pre-trial conference directions;(ii)Whether the trial court properly exercised its discretion under Order 11 Rule 3 of the Civil Procedure Rules, 2010; and(iii)What orders ought to be made. Analysis And Determination 7.The Appellant submits, and I agree with him, that the suit was called on a mention date – not a scheduled pre-trial conference hearing. The distinction is important. Under Order 11 Rule 1 of the Civil Procedure Rules, 2010, the object of pre-trial directions and case conferences is to set a roadmap for the expeditious hearing of the suit, ensuring that once the trial commences, it proceeds on a day-to-day basis without interruption. A mention date serves the limited purpose of giving directions, scheduling events, or confirming compliance. A striking out of pleadings, which is a drastic, terminal remedy, is plainly not an appropriate order to make on a mere mention. 8.Order 11 Rule 3(2)(d) of the Civil Procedure Rules confers on the court broad case management powers at a case management conference. However, those powers must be read harmoniously with the overarching principles of natural justice and the right to a fair hearing enshrined in Article 50(1) of the Constitution of Kenya, 2010. The right to be heard before an adverse order is made against a party is so fundamental that a court which deprives a party of that right acts in excess of its jurisdiction: see D.T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & another [1980] eKLR (Civil Appeal No. 37 of 1978), where Madan JA stated in terms that the court must act very cautiously before striking out a case, and ought not to do so without a full appreciation of all the relevant facts. 9.In the present case, the parties had fixed the mention of 2nd March 2023 by consent for pre-trial directions. There was no interpartes application for striking out before the court. No party was on notice that the suit stood to be struck out. The trial Magistrate made the striking out order entirely on his own motion, without affording any party an opportunity to be heard on the gravity of such a step. That alone renders the order fundamentally flawed. 10.The 1st Respondent seeks to defend the impugned order by relying on Order 11 Rule 3(2)(f), (j) and (o) which grant broad case management powers. I accept that those sub-rules vest the court with wide discretion. However, the existence of a discretionary power does not authorize its exercise without observing the rules of natural justice. The power must be exercised judicially, fairly, and in a manner consistent with the Constitution. As was held in Njoroge Baiya v Standard Group Ltd [2015] eKLR, the power of the court to dismiss a suit under Order 11 is not equivalent to the power to punish a party by permanently depriving it of its day in court for procedural non-compliance, particularly without hearing the offending party. 11.The role of this court on appeal is to determine whether the trial court exercised its discretion judicially. An appellate court will interfere with a lower court's exercise of discretion only where there is an error in principle, or where the court acted in a manner that is plainly wrong: see James Kagia v Two Rivers Development Ltd [2021] eKLR. I find that there are such errors of principle in the present case, for the reasons that follow. 12.First, the striking out of pleadings is a draconian remedy reserved for the clearest of cases. It permanently deprives a party of the right to have a dispute determined on its merits. The power must be exercised sparingly: D.T. Dobie (supra). The record shows that as at the material date, both parties had filed their pleadings, the Appellant had filed his witness statements and list of documents, and the suit was substantially ready for hearing. The only outstanding step was the filing of agreed trial issues. Striking out all pleadings for the sole reason that agreed issues had not been filed goes far beyond what the circumstances warranted. 13.Secondly, the procedural history of this suit reveals a degree of bilateral delay. Both parties contributed to the non-completion of the pre-trial process. In such circumstances, it would have been manifestly unjust to punish only the Appellant – or indeed all parties – by permanently extinguishing the suit. The appropriate response to delay in compliance with pre-trial directions lies in the graduated remedies available under Order 11, such as imposing peremptory timelines, awarding costs thrown away, or issuing unless orders – not the irreversible extinction of the proceedings. 14.Thirdly, the trial Magistrate invoked Order 11 Rule 3(2)(d) as the basis of the striking out order. That sub-rule empowers the court to give directions as to the way in which a party is to comply with any order previously made and to set timelines for compliance. It is not, on its proper construction, a standalone power to strike out an entire suit. The power to strike out pleadings for non-compliance with case management directions is more properly located in Order 11 Rule 3(2)(o), read with Rule 7, which requires an application or at minimum a hearing before such an order is made. The trial Magistrate thus acted without proper jurisdictional basis for the specific order made. 15.Fourthly, Article 159(2)(d) of the Constitution of Kenya, 2010 requires courts to be guided by the principle that justice shall be administered without undue regard to procedural technicalities. The failure to file agreed trial issues, while a procedural default, was curable and certainly did not render the suit beyond redemption. The constitutional mandate of the courts is to adjudicate disputes on their merits wherever possible. 16.The 1st Respondent relies on Njeru v Kinanda [2022] KECA 946 (KLR) and Nicholas Kiptoo Arap Korir v Independent Electoral and Boundaries Commission & 6 Others [2013] eKLR. I have considered both cases and find that they do not assist the 1st Respondent's position, and must be distinguished. 17.In Njeru v Kinanda (supra), the Court of Appeal was dealing with a party who had demonstrated persistent, willful and contumacious non-compliance with multiple court orders over a protracted period. The court took the view that such sustained disobedience justified the terminal sanction. In the present case, the record does not disclose the type of deliberate, repeated defiance that characterized the conduct in Njeru v Kinanda. The failure to file agreed issues was at best a bilateral procedural lapse on a single occasion. The factual matrix is therefore materially different and the ratio decidendi of Njeru v Kinanda is not applicable to this appeal. 18.As for Nicholas Kiptoo Arap Korir v IEBC (supra), that case arose in an election petition context governed by strict statutory timelines which are constitutionally prescribed. The court's firm approach to procedural compliance in that context reflects the unique nature of electoral litigation, where timelines are jurisdictional rather than merely directory. The present suit is an ordinary civil dispute concerning land, governed by the ordinary procedural rules of the Civil Procedure Rules, 2010. The principle that procedural rules must be strictly enforced in electoral matters does not translate, without modification, to ordinary civil litigation where the courts have broad case management discretion and where the overriding objective under Section 1A of the Civil Procedure Act – just, expeditious and proportionate resolution of disputes – expressly counsels against undue formalism. Nicholas Kiptoo is accordingly of no assistance to the 1st Respondent. 19.I have similarly considered the case of Fran Investment Limited v G4S Security Services Ltd [2015] eKLR, relied upon by the Appellant. That case concerned an application for reinstatement of a suit that had been dismissed for want of prosecution, and the court there declined reinstatement owing to the inordinate and unexplained delay in prosecution of the suit. While that case correctly states the principle that courts must guard against delay, it equally affirms that the courts must consider all the circumstances before making a terminal order. Here, the suit had subsisting pleadings, filed witness statements, and was approaching readiness for hearing. The circumstances are therefore different from those in Fran Investment, and the case supports rather than undermines the Appellant's position that the striking out was disproportionate. 20.Having found that the trial Magistrate erred in principle in striking out the pleadings suo motu on a mention date, without a hearing, and that the order was disproportionate to the nature of the default alleged, the proper course is to allow the appeal, set aside the striking out order, and reinstate the suit for hearing and determination on its merits. 21.In so holding, I am alive to the fact that this suit was instituted in 2016 and has been pending for a considerable period. That is unsatisfactory. The parties and their advocates bear a joint responsibility for the diligent prosecution of the suit, and the courts have an institutional interest in the expeditious resolution of disputes. I therefore direct that upon reinstatement, the matter shall be placed before the trial court for a substantive pre-trial conference to be conducted within thirty days (30) days from the date of this judgment, at which all outstanding pre-trial requirements shall be dispensed with, failing which appropriate sanctions shall be visited upon the defaulting party. 22.On the question of costs, I am guided by the general rule that costs follow the event. However, given the bilateral nature of the procedural default in the court below, and the fact that the delay was not attributable to the Appellant alone, I award the Appellant costs of this appeal against the 1st Respondent only. Each party shall bear its own costs in the lower court. Final Orders 23.In the premises, this Court makes the following orders:(a)The appeal is hereby allowed.(b)The ruling of the Hon. Senior Principal Magistrate Nyakweba dated 2nd March 2023 in Embu CM-ELC No. 92 of 2018, striking out the pleadings of all parties, is hereby set aside.(c)Embu CM-ELC No. 92 of 2018 – John Nthiga Mukorwe v Catherine Wawira John & another – is hereby reinstated for hearing and determination on its merits.(d)Upon reinstatement, the parties shall within thirty days (30) days appear before the trial court for a substantive pre-trial conference. In the event of further default, the trial court shall exercise its discretion as it deems appropriate, with due regard to the principles set out in this judgment.(e)Costs of this appeal are awarded to the Appellant against the 1st Respondent. Each party shall bear its own costs in the court below.It is so ordered. DATED, DELIVERED AND SIGNED AT EMBU THIS 11TH DAY OF JUNE, 2026.HON. E.C CHERONOELC JUDGE, EMBUIn the presence of;1. Mr. Njeru for the Applicant2. 1st Respondent/Adocate-absent3. Mr. Muriithi H/B for Mr. Mwatzuma for the 2nd Respondent4. Ruth C/A