Kamau & 8 others v Njoki & 6 others (Environment and Land Case E233 of 2024) [2026] KEELC 5238 (KLR) (6 August 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND COURT AT NAIROBI** **ELC NO. E233 OF 2024** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **FRANCIS NJOROGE KAMAU** **& 8 OTHERS - PLAINTIFFS /APPLICANTS** **VS** **ANTHONY NJOROGE NJOKI** **& 6 OTHERS - DEFENDANTS/RESPONDENTS** **RULING** **(In respect of the Plaintiffs’ Application dated 6/2/2026)** 1. Before the court is the applicant's application dated 6/2/26, seeking orders to set aside the proceedings of 4/2/26, including the dismissal of the Plaintiffs' suit for want of prosecution and the hearing of the defendant's counterclaim, thereby reinstating the suit. That the court direct a pretrial conference under Order 11 of the CPR and grant the Plaintiffs leave to file and serve their witness statements, list of documents, reply to defence, and defence to counterclaim within the timelines to be set by the court. 2. The applicants aver that the dismissal of the plaintiffs' suit and the subsequent hearing of the counterclaim resulted from the inexcusable mistake and neglect of the plaintiffs' former advocate, who failed to file witness statements and was served with the defence and counterclaim only a few days before the hearing. They further aver that the error of counsel should not be visited upon the innocent plaintiffs, who risk losing their properties. They further aver that the error on the part of their advocate constitutes gross professional misconduct, and that this court has inherent power and duty to ensure that justice is served under Sections 1A, 1B and 3A of the Civil Procedure Act. The dismissal of the suit is therefore disproportionate, especially as the default is on the part of counsel. The defendants will therefore suffer prejudice that cannot be compensated by costs. 3. The 1st Defendant opposed the application. The matter was fixed for hearing on 4/2/26, when the Plaintiffs’ advocate informed the court that he had not filed his witness’s written statements, despite the witness having been put in the witness box. He stated that he may have left the statements in his chambers during pretrial. Upon checking the CTS, it was found that the same witness statements were not available. Counsel for the 1st Defendant confirmed that he had not been served with the said witness statements. This forced the Plaintiffs’ counsel to stand down his witness. The court marked the Plaintiffs’ case as closed and proceeded to hear the 1st Defendant’s case. The Plaintiffs’ counsel cross-examined the 1st Defendant’s witness. The court gave directions on the filing of written submissions. Instead of complying with the court’s directions, the Plaintiffs filed this application. 4. Parties have filed written submissions which I have read and considered. 5. The key issue for determination is whether the suit should be reinstated. 6. The law applicable for setting aside judgment or dismissal is Order 12 Rule 7 of the Civil Procedure Rules which provide as follows; “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 or order upon such terms as may be just.” 1. Reinstatement of a suit is discretionary. Section 3A of the Civil Procedure Act confers on the court inherent power to make such orders as may be necessary to achieve the ends of justice. The considerations the court should bear in mind when exercising discretion were emphasised in the case of Esther Wamaitha Njihia & 2 Others -vs- Safaricom Ltd [2014] eKLR, where, citing relevant cases on the issue, the court held inter alia: “The discretion is free and the main concern of the courts is to do justice to the parties before it (see Patel vs E.A. Cargo Handling Services Ltd.) the discretion is intended 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 deliberately sought, whether by evasion or otherwise, to obstruct or delay the cause of justice (see Shah vs. Mbogo). The nature of the action should be considered, the defence if any should also be considered; and so should the question as to whether the Plaintiff can reasonably be compensated by costs for any delay bearing in mind that to deny a litigant a hearing should be the last resort of a court…. It also goes without saying that the reason for failure to attend should be considered.” 1. In the case of Lucy Bosire –vs- Kehancha Div. Land Dispute Tribunal and 2 others [2013] KEHC 681 (KLR), the Court held as follows: - “The principles guiding the setting aside ex parte orders are trite that the court has wide powers to set aside such ex parte orders save that where the discretion is exercised the Court will do so on terms that are just. In CMC Holdings Limited vs. Nzioki [2004] 1 KLR 173 it was held as follows: - “That discretion must be exercised upon reasons and must be exercised judiciously…... In law the discretion that a court of law has, in deciding whether or not to set aside ex parte order was meant to ensure that a litigant does not suffer injustice or hardship as a result of amongst others an excusable mistake or error. It would not be proper use of such discretion if the Court turns its back to a litigant who clearly demonstrates such an excusable mistake, inadvertence, accident or error. Such an exercise of discretion would be wrong principle...The answer to that weighty matter was not to advise the appellant of the recourse open to it as the learned magistrate did here. In doing so she drove the appellant out of the seat of justice empty handed when it had what it might have well amounted to an excusable mistake visited upon the appellant by its advocate.” 1. It follows that the decision whether to set aside an ex parte order is discretionary. The discretion is intended to be exercised to avoid injustice and hardship arising from accident, inadvertence, or excusable mistake or error, but not to assist a person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice. See Shah v Mbogo & Another (1967) EA 116. 2. In the present suit, the court issued directions on 4/11/24 for compliance with Order 5 of the Civil Procedure Rules by close of business on 9/12/24. At the subsequent appearance, the Plaintiffs sought additional time to serve the defendants. The matter was thereafter fixed for formal proof on 15/10/25, when all parties were absent. A further hearing was fixed for 4/2/26. On 26/11/26, the firm of Sausi & Co Advocates ceased acting for the Plaintiffs. Counsel for the 1st defendant sought and obtained leave to file and serve the defence, list of documents and witness statements by 10/12/25. 3. On the material date for hearing, 4/2/26, the Plaintiff realised, after putting his witness on the stand, that he had not complied with the directions issued under Order 11, and sought time to do so. On opposition from the 1st Defendant's counsel, the court determined that the Plaintiff had been accommodated many times and had failed to comply with the directions of the court. It proceeded to dismiss the suit and to proceed with the 1st Defendant's defence and counterclaim, which the Plaintiff's counsel fully participated in. 4. The court has been urged to set aside the dismissal orders to allow the plaintiffs to be heard on the merits on account of their previous lawyers' mistake for failing to comply with the court's directions. 5. Under Article 50 (1) of the Constitution, every party has a right to be heard, and the fundamental duty of the court is to ensure that parties seeking justice can access it by affording them that opportunity to be heard. 6. Purely in the interest of justice, I will allow the application but on terms. 7. **Final orders for disposal** 8. Therefore, in the interests of justice, I am inclined to allow the application dated 6/2/26 to the extent that the 1st defendant has leave to file witness statements, a list of documents and a reply to the counterclaim within 7 days 9. Accordingly, the order dated 4/2/26 dismissing the Plaintiffs’ suit is hereby set aside, and the suit is reinstated on the condition that; 10. the Plaintiff pays the Defendant’s throw-away costs of Kshs. 30,000/= within the next 7 days. 11. The Applicants shall fix the matter for hearing within the next 7 days; in default, the orders shall lapse, after which the Defendants shall be at liberty to file their written submissions and take directions on the date of judgment. 12. It is so ordered **DELIVERED, DATED AND SIGNED AT NAIROBI THIS 6TH DAY OF AUGUST 2026 VIA MICROSOFT TEAMS.** **J. G. KEMEI** **JUDGE** **Delivered Online in the presence of:** 1. Mr Mukire for the Plaintiff 2. Mr Mararo HB for Gikenye for the 1st Defendant 3. N/A for the 2nd and 3rd Defendants 4. CA- Mr Amos