https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4437

Kahariri v Ndura & 2 others (Land Case Appeal E042 of 2026) [2026] KEELC 4437 (KLR) (13 July 2026) (Ruling) Neutral citation: [2026] KEELC 4437 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Land Case Appeal E042 of 2026 MN Kullow, J July 13, 2026 Between Patrick Macharia Kahariri Appellant and Mary Wambua Ndura 1st Respondent Embakasi Ranching Company Ltd 2nd Respondent The Chief Land Registrar 3rd Respondent Ruling 1.In the Notice of Motion application dated 1st May 2026 the Applicant sought the following orders:a.Spentb.That the court be pleased to set aside, vary and/or discharge the orders issued on 26th March 2026 dismissing the appellant’s Notice of Motion dated 13th March 2026.c.That the court be pleased to reinstate the applicant’s notice of motion dated 13th March 2026 dismissed on the 26th March 2026 for hearing and determination on merit.d.That pending hearing and determination of this application inter partes the court be pleased to grant an interim stay of execution, enforcement and/or implementation of the judgement and consequential orders issued in Milimani MCELC 263/2022.e.That pending hearing and determination of the reinstated notice of motion application dated 13th March 2026 the court be pleased to grant an interim stay of execution, enforcement and /or implementation of the judgement and consequential orders issued in Milimani MCELC 263/2022.f.That pending hearing and determination of the reinstated notice of motion application dated 13th March 2026 the 1st respondent whether by herself, agents, servants, auctioneers, employees, assignees or any person acting under her instructions be restrained from evicting, removing, entering upon, interfering with, alienating, wasting, constructing on, selling, transferring, charging, leasing or in any manner dealing with the suit property Nairobi/ Block 136/5659.g.That the firm of Danstan Omari & Company Advocates be granted leave to come on record after judgement.h.Costs of the application be in the cause. 2.The Application was premised on the grounds that applicant being dissatisfied with the judgment in MCELC E236 OF 2022 lodged the current appeal and filed an application dated 13th March 2026 to stay the judgement which application was dismissed for non-attendance. It was stated that the non-attendance was inadvertent, excusable and the delay in bringing forth the application was not inordinate as the applicant had taken steps to immediately reinstate the said application. 3.The applicant went ahead to ask the court to administer justice without regard to procedural technicalities. He indicated that he will be prejudiced if the application is not reinstated and heard on merit and the appeal will be rendered nugatory as the 1st Respondent will commence eviction proceedings. 4.The 1st Respondent opposed the application by filing a replying affidavit sworn on the 15th May 202. She deponed that the applicant was the one that served the Respondent with the hearing date of application and failed to attend court prompting an oral application for dismissal by the 1st Respondent which application was dismissedShe further deponed that upon the said dismissal, she served the applicant with the notice of dismissal on the 25th March 2026 which the applicant acknowledged but only moved the court on the 9th April by filing a similar application for stay orders.Counsel argued that this was a deliberate attempt to mislead the court which prompted a notice of preliminary objection to the application and further the applicant withdrawing the application and filing the current application. Counsel argued that the applicant had not given sufficient reason for the non-attendance to warrant the reinstatement of the application 5.The application was canvassed by way of written submissions. The applicant filed submissions dated 21st May 2026 whereas the 1st Respondent submitted on the 10th June 2026. Applicant’s submissions 6.The applicant reiterated the contents in her replying affidavit indicating that non- attendance was neither intentional or calculated but was an inadvertent lapse for which the Applicant has expressed remorse.Counsel urged the Court to make a distinction between a litigant who has made an excusable procedural mistake and a litigant who has deliberately obstructed the course of justice which in this case he argued the applicant belonged to the former category. That the record shows an intention to pursue the matter, not abandon it. To buttress this argument, he relied on the provision ofArticle 50(1) and Article 159(2)(d) of the constitution and further relied on the case of Richard Ncharpi Leiyagu -Vs- Independent Electoral and Boundaries Commission & 2 Others [2013] eKLR 1st Respondent’s submissions 7.Counsel for the Respondent in rebuttal submissions argued that the applicant had not given any sufficient reason for the non-attendance and the inordinate delay in filing the application for reinstatement that would warrant the court to reinstate the application dated 13th March 2026 relying on the case of James Kanyiita Nderitu & Another -Vs- Marios Philotas Ghikas & another [2016] KECA 470 (KLR) Counsel submitted that the court’s discretion in allowing for such an application provided for in Order 12 Rule 7 of the civil procedure rules should be done judiciously placing reliance on the Court of Appeal’s decision in Patriotic Guards Ltd. -Vs- James Kipchirchir Sambu [2018] KECA 799 (KLR) Analysis and Determination 8.Having looked at Application, the replying affidavit and Submissions the only issue arising for determination is; Whether the application to reinstate suit is merited 9.Whether to reinstate a dismissed suit would call for exercise of discretion in line with Articles 50 and 159 of the Constitution, and the oxygen principle in sections 1, 1A and 3A of the Civil Procedure Act, Cap 21, Laws of Kenya. These were discussed in John Nahashon Mwangi -Vs- Kenya Finance Bank Limited (in Liquidation) [2015] eKLR [2015] KEHC 6789 (KLR) (Gikonyo, J), where it was stated that the fundamental principles of justice are enshrined in Article 159 of the Constitution, coupled with Article 50, with respect to the right to be heard, and to serve substantive justice to all. It was underscored that those principles ought to be factored when considering reinstatement of dismissed suits, bearing in mind that dismissal of suits is of grave effect. 10.In this instant, the applicant did in fact have knowledge of the hearing date of the application dated 13th March 2026 and even served the 1st Respondent evidenced by the email correspondence attached to the 1st Respondent’s replying affidavit facts that have not been controverted by the applicant.The applicant did not attend court on the said date and the 1st Respondent was heard on his application and dismissal orders were issued. The applicant has indicated that the non-attendance was not deliberate but has not given the specific reason for the non- attendance. 11.Order 12 Rule 1 of the Civil Procedure Rules provides as follows;“If on the day fixed for hearing, after the suit has been called on for hearingoutside the court, neither party attends, the court may dismiss the suit.”Order 12 Rule 7 of the Civil Procedure Rules provides as follows on setting aside dismissal orders issued under Order 12 of the Civil Procedure Rules;“Where under this Order judgment has been entered or the suit has been dismissed, the Court, on application, may set aside or vary the judgment on order upon such terms as may be just’’ 12.In the judicial decision of Dennis Odhiambo -Vs- Elius Njoka & another [2021] eKLR, the Court while considering whether to reinstate an application that had been dismissed for want of prosecution observed as follows; “The general principles governing applications like the one at hand are anchored in the realm of judicial discretion. However, I find it relevant to invoke the provisions of Section 1A(1) of the Civil Procedure Act which provides for the overriding objective of the court so as to facilitate the just, expeditious, proportionate and affordable resolution of disputes in court. A party in civil proceedings or an advocate for such a party is under a duty in accordance to the Act, to assist the court to further the overriding objective by participating in the processes of the court and to complying with the directions and orders of the court as directed. The foregoing discussion is in tandem with the spirit under Article 159 of the Constitution, which guides the courts in exercise of its judicial authority to administer substantive justice without undue regard to procedural technicalities.” 13.The jurisdiction of the court to review and set aside its decisions is wide and unfettered. In Shah -Vs- Mbogo and Another [1967] EA 116 the Court of Appeal of East Africa held that: “ This discretion (to set aside ex parte proceedings or decision) is intended so to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist a person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice.” 14.The legal threshold to consider before exercising the said discretion is whether the applicant has demonstrated a sufficient cause warranting setting aside of the ex-parte decision or proceedings as it was held In Wachira Karani -Vs- Bildad Wachira [2016] eKLR where the court indicated “sufficient cause is thus the cause for which the defendant could not be blamed for his absence. Sufficient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances in the case at hand. Thus, the Defendant must demonstrate that he was prevented from attending court by a sufficient cause...” 15.It is therefore my view that the Applicant has not shown sufficient cause to warrant the exercise of this court’s discretion in his favour. The applicant has simply indicated that the failing to attend court on the day set for hearing was not deliberate but not given the reasons for failing to attend. Nevertheless, I invoke the provision of Section 1A, 1B and 3A of the Civil Procedure Act which provisions of law deal with the Overriding Objective of the Act, which is to facilitate just, expeditious, proportionate and affordable resolution of disputes before it. Further, under Section 3A, the court has power to issue orders that are necessary for the end of justice to be met. I will also rely on the provisions of Article 159(2)(d) of the Constitution which oblige the court not to focus so much on technicalities at the expense of substantive justice. 16.The applicant’s conduct prior to the dismissal of the application has indicated the desire to prosecute the application and the entire appeal. The applicant herself served the 1st Respondent with the hearing notice and the circumstances that led the non-attendance might not be known to the court, but there is an indication of good will to prosecute the matter. The application was dismissed on the 25th March 2026, the application for reinstatement filed on the 1st May 2026 and the applicant has indicated the delay was due to the technicalities in between of inadvertently filing of the wrong application which argument I will permit as the delay is not prolonged. The 1st Respondent will not be prejudiced if the application is heard and determined on merit as it stand the application to reinstate does not act as a stay against the judgement. In the case Ivita -Vs- Kyumbu [1984] KLR 441, the considerations were said to include whether the delay is prolonged and inexcusable; whether justice can be done despite the delay; justice is justice for both sides, and so the positions of both sides must be considered; whether the other side would be prejudiced, by justice not being done by the prolonged delay; and the reasons given for the delay. Final disposition 17.Having carefully considered the Notice of Motion Application dated 1st May 2026, the rival written submissions, cited authorities and relevant provisions of law, I hold that it would be in the interest of justice to hear the application on merit as opposed to not hearing and therefore allow the application in the following terms;-i.The firm of Danstan Omari and Company Advocates is hereby granted leave to come on record for the applicant.ii.The orders of this Honourable Court issued on the 25th March 2026 are hereby set aside and the Notice of motion application dated 13th May 2026 is hereby reinstated for hearing.iiiThe Applicant shall forthwith set down the application dated 13th March 2026 for hearing within the next 14 days failure to which the application will stand dismissed.iv.The applicant shall bear the costs of the Application. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 13TH DAY OF JULY 2026.MOHAMMED N. KULLOWJUDGERuling delivered in the presence of: -Mr. Kilonzo for Omar for the Appellant/ApplicantMr. Maina for the RespondentMs. Mwangi Court Assistant