Kariuki & another v Kagona & 10 others (Environment and Land Case 164 of 2018) [2026] KEELC 3752 (KLR) (18 June 2026) (Ruling)

Kariuki & another v Kagona & 10 others (Environment and Land Case 164 of 2018) [2026] KEELC 3752 (KLR) (18 June 2026) (Ruling) Neutral citation: [2026] KEELC 3752 (KLR) Republic of Kenya In the Environment and Land Court at Thika Environment and Land Case 164 of 2018 JA Mogeni, J June 18, 2026 Between Mumbi Kariuki 1st Plaintiff Alice Njambi Mwangi 2nd Plaintiff and James Mungai Kagona 1st Defendant John Kirima Kariuki 2nd Defendant Lucy Nyambura Kariuki 3rd Defendant Francis Machira Wanjau 4th Defendant Timothy Kangei Njau 5th Defendant Maureen Annie Njeri 6th Defendant Naomi Gathoni Gichihi 7th Defendant John Kinyanjui Gichane 8th Defendant James Kangethe Mburiri 9th Defendant The Land Registrar Kiambu County 10th Defendant The Chairman, Land Control Board Kihara Division 11th Defendant Ruling 1.This Ruling is in respect of two Notice of Motion Applications dated 2/08/2025 and 2/10/2025. The first Application is brought under Order 8 Rule 3 (amendment of pleadings), Order 40 Rule 1 (injunctions and interlocutory orders) of the Civil Procedure Rules, Section 3A of the Civil Procedure Act (inherent jurisdiction of the Court), and all other enabling provisions of the law. 2.The Applicant seeks the following orders:1.Spent.2.That the Plaintiffs/Applicants be granted leave to amend the plaint on record and, inter alia, enjoin Safaricom Investment Co-operative (sic) as a co-Defendant, in terms of the attached draft Amended Plaint.3.That upon such enjoinment, the enjoined 11th Defendant (Safaricom Investment Co-operative (sic)), by itself, its officials, agents and/or Respondents, be restrained by way of an injunction from continuing with any construction, development, sale, transfer, mortgaging, alienation, leasing and/or further improvement of the suit property or any portion of the land they occupy, which is part of or a sub-division of the suit property herein (Kiambaa/Ruaraka/999), pending the hearing and final determination of the suit herein.4.That further, there be an order for maintenance of the status quo in all other sub-divisions of the suit property (Kiambaa/Ruaraka/999) as against the 1st to 9th Defendants, and/or that there be an injunctive order restraining the said 1st to 9th Defendants, by themselves, their agents, servants and/or employees, from occupying, alienating, leasing, charging, selling, developing and/or constructing on the said property, pending the hearing of the application.5.That pending the hearing of the instant application inter partes, there be an interim order in terms of prayer 4 above.6.That the costs of this application be provided for.7.That the Honourable Court be at liberty to issue such other or further orders as it shall deem just and expeditious in the circumstances. 3.The Applicants contend that it is imperative that the Plaint be amended so as to enjoin SAFARICOM INVESTMENT CO-OPERATIVE (SIC) as a co-Defendant, for the reason that the Court cannot adequately adjudicate on the issues in controversy unless all relevant parties are before it. Further, and in total disregard of the Lis Pendens doctrine, the intended Defendant and other occupants have, during the pendency of the suit, continued to develop sub-plots arising from what the Applicants aver to be the unlawful, illegal and unprocedural sub-division of the suit property Kiambaa/Ruaraka/999. It is therefore necessary that injunctive orders and/or an order for the maintenance of the status quo be issued so as to preserve the substratum of the suit. 4.The Applicants further contend that unless the prayers sought are granted, they stand to suffer irreparable loss and prejudice that cannot adequately be compensated by an award of damages. The interests of justice equally dictate that the orders sought be granted so as to ensure that all issues in controversy are determined on their full merits with all necessary parties properly before the Court. 5.In support of the application, Alice Njambi Mwangi, the 2nd Plaintiff/Applicant, deposes that ever since the suit was filed, some of the 1st to 9th Defendants have continued to trespass onto the suit property on the basis of an unlawful sub-division, and that after extensive enquiries, the Applicants discovered that Safaricom Investment Co-operative LTD (SIC) is among the latest trespassers, having put up a multi-storey building on one of the illegally carved-out sub-plots, with photographs of the said construction annexed as "AM-1". 6.She further deposes that the Applicants have changed Advocates and require the amendment not only to enjoin the new party but also to plead their case with greater clarity, with the proposed draft Amended Plaint annexed as "AM-2". She concludes by deposing that the orders sought are necessary to prevent the substratum of the suit from being defeated through successive transfers, sub-divisions, developments, alienations or encumbrances, and that the property must be preserved to avert great prejudice and substantial loss to the Plaintiffs pending the final determination of the suit. 7.Before the 1st Application was determined the Applicant filed 2nd Application dated 2/10/2025. The said application is brought under Order 12 Rule 7 of the Civil Procedure Rules, Section 3A of the Civil Procedure Act, and all other enabling provisions of the law. 8.The Applicant seeks the following prayers:i.Spentii.That the order made on 20/05/2024 dismissing the Plaintiffs' suit and the subsequent ex-parte hearing of the counter-claim be set aside, and that the Plaintiffs' suit be heard in full on its merits alongside a fresh re-hearing of the counter-claim.iii.That pending the hearing and final determination of the application herein, there be an order of stay of proceedings, and in particular a stay with regard to the fixing of a Judgment date in respect of the ex-parte hearing of the counter-claim.iv.That the costs of this application do abide the outcome of the main suit. 9.The Applicants aver that their non-appearance on 20/05/2024, which resulted in the dismissal of the Plaintiffs' suit and the subsequent ex-parte hearing of the Counter-claim, was occasioned entirely by the failure of their then Advocates, C.W. Kinuthia & Co. Advocates, to notify them that the matter was scheduled for hearing on that date. When the Applicants thereafter changed Advocates in mid-June 2025, owing to the indolence and lack of diligence of their previous Advocates in prosecuting the matter, the incoming Advocates received no co-operation whatsoever from the outgoing firm and were therefore compelled to rely solely on the case activity information available on the Court's online platform, which critically contained no indication that the Applicants' suit had ever been dismissed. 10.It was only after the new Advocates, acting on the Applicants' instructions and in complete ignorance of the dismissal, filed the application dated 20/08/2025 in a bid to kick-start the stagnated matter, and only after the intended 11th Defendant's Advocates raised the issue of the dismissal, that the Applicants and their new Advocates first became aware of the orders made on 20/05/2024. The Applicants therefore contend that they stand greatly prejudiced through no fault of their own making, and that it would be manifestly unjust to hold them bound by the consequences of their former Advocates' omissions. 11.In support of the application, Alice Njambi Mwangi vide the Supporting Affidavit sworn on 2/10/2025 deposes that the 1st Applicant is a 97-year-old individual who has been deaf, dumb and illiterate since childhood and who is the victim of an alleged fraud involving land, circumstances which make it all the more imperative that the suit be heard and determined on its full merits. She further deposes that the Applicants have at all material times been keen and eager to prosecute the matter, and that their failure to appear on 20/05/2024 is entirely attributable to the failure of their former legal representatives. 12.To deny the orders sought, she contends, would be to unjustly punish the Applicants for the conduct of their previous Advocates, and the interests of justice including the constitutional right to a fair hearing demand that the dismissal order be set aside, the suit reinstated, and the Counter-claim subjected to a fresh re-hearing so that all matters in dispute may be conclusively determined on their merits. 13.The Notice of Motion dated 2/08/2025 is opposed by only 5th and 6th Defendants who filed on 14/11/2025 Grounds of Opposition against the application. They aver that the application is misconceived, incompetent and bad in law, the suit having been dismissed for want of prosecution on 20/05/2024 and never reinstated, thereby leaving no competent proceedings within which any amendment or enjoinment can be entertained. The Applicants are further guilty of inordinate delay and laches, having brought the application some seven (7) years after filing the suit and over one year and five months after its dismissal without any reasonable explanation, and have in any event failed to demonstrate a prima facie case with a probability of success, irreparable harm incapable of compensation by damages, or a balance of convenience tilting in their favour. 14.Furthermore they stated that no complaint has been raised against the 5th and 6th Respondents capable of grounding injunctive relief, nor have the Applicants demonstrated any ongoing or threatened waste, alienation, construction or dissipation in respect of the said Respondents' 118-acre portion to be excised out of Kiambaa/Ruaka/4107, and the Honourable Court cannot in those circumstances issue orders in vain or without a factual and legal basis warranting their grant, the entire application being nothing more than a transparent attempt to derail, delay and frustrate the Respondents from concluding their Counterclaim and an abuse of the Court process that ought to be firmly rejected. 15.The Application dated 2/10/2025 is also opposed by only the 5th and 6th Defendants vide their Replying Affidavit sworn on 14/11/2025 by Timothy Kangei Njau the 5th Respondent with authority from the 6th Respondent. 16.They vehemently oppose the Plaintiffs' Notice of Motion dated 2/10/2025. He deposes that the history of this matter plainly demonstrates the Plaintiffs' consistent failure and disinterest in prosecuting their suit, tracing back to 2018 when their very first application was dismissed for want of prosecution on 6/03/2019. He further deposes that on the two hearing dates of 1/10/2023 and 15/03/2023, the Plaintiffs were not ready to proceed, and that on 15/03/2023, the Honourable Court, in the presence of the Plaintiffs and their Advocate, marked the adjournment as the last and fixed a further hearing date of 8/06/2023. Thereafter, despite indicating readiness to proceed on 8/06/2023, the Plaintiffs and their Advocate never again attended Court, even upon being duly served with a Hearing Notice dated 8/02/2024, copies of which Hearing Notice and the corresponding Affidavit of Service are annexed and marked "TK1a & b". 17.Consequently, on 20/05/2024, the Plaintiffs' suit was dismissed for want of prosecution and the 5th and 6th Defendants were permitted to proceed with their Counterclaim, during which the 5th Defendant testified and a further hearing date was taken for continuation thereof. 18.The deponent further deposes that the Plaintiffs' former Advocate only resurfaced on 20/05/2025, a full year after the dismissal, and was duly informed of the same. He contends that the blame attributed to previous Counsel is a mere scapegoat tactic, particularly given that no formal complaint has ever been lodged against the said Advocate, and that the Plaintiffs' own laxity and dereliction are self-evident, it being their duty as litigants to prosecute their own case. He further deposes, that the Plaintiffs have failed to demonstrate a meritorious case or raise any triable issues, and that the allegation that the 1st Plaintiff is a 97-year-old deaf, dumb and illiterate person is undermined by the fact that she has demonstrated capacity to instruct an Advocate, as evidenced by the Notice of Change of Advocates dated 9/06/2025 and her stated intention to appear and give evidence. 19.In summary the 5th and 6th Defendants depose that the grant of the orders sought would occasion further prejudice and delay to the 5th and 6th Defendants, who have already incurred costs, prepared witnesses and given evidence in the Counterclaim, and that the Plaintiffs' conduct amounts to an abuse of the Court process aimed at frustrating the said Defendants from enjoying the fruits of Judgment, and accordingly prays that the Notice of Motion be dismissed with costs to the 5th and 6th Defendants/Respondents. 20.The Application was canvassed by way of written submissions. No other party filed submissions save for the Plaintiff. Briefly the Plaintiff submitted vide their submissions dated 1/04/2026 that according to them there is only one sole issue for the Court's determination. This is whether sufficient grounds have been established to warrant the setting aside of the dismissal order made on 20/05/2024 and the consequential reinstatement of the Plaintiffs' suit. 21.They submit that the dismissal was occasioned not by any deliberate or evasive conduct on the part of the Applicants, but by a grave error and oversight on the part of their former Advocate, who neither attended Court on the material date nor advised the Applicants that the matter was coming up for hearing, a fact buttressed by the Court record of 20/05/2024 which confirms that the Plaintiffs' then Advocate was herself absent when the ex-parte order was made. The new Advocates, upon coming on record following the change effected in early June 2025 necessitated by the strained client/Advocate relationship, relied on the online case activity records annexed as "A-1" which showed the matter as still active, and it was only upon the 5th and 6th Respondents raising the issue of dismissal in their Grounds of Opposition dated 26/09/2025, annexed as "A-2", and the subsequent perusal of the physical Court file, that the dismissal was confirmed and the present application filed. 22.In support of this position, the Applicants rely on the Court of Appeal decision in Lee G. Muthoga v Habib Zurich Finance (K) Ltd & Anor, CA No. 236 of 2009, where it was held that a litigant should not suffer on account of their Advocate's oversight, and on Gideon Mose Onchwati v Kenya Oil Co. Ltd & Anor [2017] eKLR, where the Court of Appeal, citing Shah v Mbogo and Ongwom v Owota, held that a litigant ought not bear the consequences of an Advocate's default unless the litigant was privy to the default or the default resulted from the litigant's own failure to give due instructions. 23.The Applicants further urge the Court to exercise its wide discretionary jurisdiction favourably, having regard to the nature and gravity of the dispute, which concerns the fraudulent transfer, sub-division and sale of land belonging to a now 98-year-old deaf and dumb lady, allegedly perpetrated by, among others, her own daughter in collusion with some of the Defendants, and in respect of which no Judgment has yet been entered, leaving room for the Applicants to be heard on the merits. 24.Relying on Ivita v Kyumbu [1984] KLR 441, the Applicants submit that even where delay is prolonged, the Court retains the discretion to order that a matter be set down for hearing at the earliest available time if it is satisfied with the explanation offered, and that the Respondents have not demonstrated any prejudice that would be occasioned by the grant of the orders sought. They further rely on Khadaf Developers Limited v Diamond Trust Bank Limited [2020] eKLR for the proposition that the Court ought not uphold technicality at the expense of substantive justice, consistent with the oxygen principle enshrined in Article 159 of the Constitution and Sections 1A, 1B and 3B of the Civil Procedure Act, and on Philip Chemowolo & Anor v Augustine Kubede (1982-88) KAR 103, where the Court held that blunders will from time to time occur and that a party ought not suffer the penalty of not having his case heard on the merits unless fraud or intention to overreach is established, which the Applicants contend is wholly absent in the present matter. Analysis and Determination 25.The two applications before this Court raise distinct but interrelated issues. The first, dated 20/08/2025, raises the question of whether leave ought to be granted to amend the Plaint so as to enjoin Safaricom Investment Co-operative (SIC) as a co-Defendant and whether injunctive relief and/or a status quo order ought to issue in respect of the suit property Kiambaa/Ruaraka/999. The second, dated 2/10/2025, raises the more fundamental and logically anterior question of whether the dismissal order made on 20/05/2024 ought to be set aside and the Plaintiffs' suit reinstated. 26.It is trite law, and this Court so holds, that the second application must of necessity be determined first, for the reason that if the suit stands dismissed, there exists no competent proceeding within which any amendment, enjoinment or injunctive relief can be granted, and the first application would be rendered entirely incompetent. On the question of reinstatement, the applicable provision is Order 12 Rule 7 of the Civil Procedure Rules, which clothes the Court with discretion to set aside or vary any Judgment or order made ex-parte upon such terms as are just. 27.This discretion, as was stated by the Court of Appeal in Shah v Mbogo [1967] EA 155,“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 the person who has deliberately sought whether by evasion or otherwise to obstruct or delay the cause of justice." 28.The Court is further guided by the principle articulated in Lee G. Muthoga v Habib Zurich Finance (K) Ltd & Anor, CA No. 236 of 2009, where the Court of Appeal held that“It is a widely accepted principle of law that a litigant should not suffer because of his Advocates' oversight," 29.Additionally in Gideon Mose Onchwati v Kenya Oil Co. Ltd & Anor [2017] eKLR, where the same Court held that“A litigant ought not to bear the consequences of the Advocate's default unless the litigant is privy to the default or the default results from failure, on part of the litigant, to give the Advocates due instructions." 30.The Court record of 20/05/2024 is particularly instructive in this regard, as it discloses that the Plaintiffs' then Advocate was herself absent on the material date, which fact this Court finds significant, for it would be perverse to hold the Plaintiffs bound by an order made in circumstances where even their own Advocate did not attend Court. The 5th and 6th Defendants' contention that the Plaintiffs are guilty of inordinate delay and laches, while not without merit given the chequered history of this matter dating back to 2018, must be weighed against the established principle in Ivita v Kyumbu [1984] KLR 441, where the Court held that;“Even if delay is prolonged, if the Court is satisfied with the Plaintiff's excuse for the delay, the action will not be dismissed, but it will be ordered that it be set down for hearing at the earliest available time,"and further that"the Defendant must satisfy the Court that it will be prejudiced by the delay." 31.The 5th and 6th Defendants have not discharged this burden to the satisfaction of this Court, and the allegation that the Plaintiffs are merely using their former Advocate as a scapegoat is contradicted by the objective fact, borne out by the Court record, that the said Advocate did not appear on 20/05/2024 and was, on her own admission on 20/05/2025, still in the process of ceasing to act, having not even served the parties with the requisite notice, which plainly corroborates the Plaintiffs' averment that they were kept in the dark as to the true status of their matter. 32.On the question of the first application, which concerns amendment of the Plaint and the grant of injunctive and status quo orders, the applicable law is Order 8 Rule 3 of the Civil Procedure Rules, which provides that the Court may at any stage of proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and that all such amendments shall be made as are necessary for the purpose of determining the real questions in controversy between the parties. 33.The universally recognized locus classicus governing the amendment of pleadings is the landmark English decision of Cropper v Smith (1884) adopted with approval in numerous Kenyan decisions. In this case, Lord Justice Bowen famously outlined the principles of judicial leniency and the right to amend at any stage to ensure justice. The Court said:“I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or of grace... It does not seem to me that there is any injustice in the Defendant being allowed to amend his pleadings... [It] is the duty of the Court to have the real issues determined between the parties." 34.In allowing amendments at any stage, for the Court the overriding principle is that amendments ought to be allowed so as to enable the real questions in controversy to be determined, provided that no injustice is caused to the other side that cannot be compensated by an order of costs. In the landmark Court of Appeal case of Central Kenya Ltd v. Trust Bank Ltd & 5 others [2000]eKLR the Court stated that:“The purpose of allowing amendments is to make sure that the real controversy between the parties is determined and Courts should lean in favour of granting amendments unless the amendments would occasion injustice to the other party." 35.On the injunctive relief and status quo orders, the applicable three-pronged test, as laid down in Giella v Cassman Brown & Co. Ltd [1973] EA 358, requires the Applicant to demonstrate a prima facie case with a probability of success, that they stand to suffer irreparable harm incapable of adequate compensation by damages, and that the balance of convenience favours the grant of the orders. The deposition by Alice Njambi Mwangi that a multi-storey building is being actively constructed on an illegally carved-out sub-plot of the suit property, supported by photographic evidence marked "AM-1", is sufficient to raise a prima facie case, and the ongoing construction and potential alienation of portions of the suit property constitute the kind of irreparable harm that damages cannot adequately remedy, particularly given the emotive and irreplaceable nature of land as a subject matter. 36.As was observed by Justice James Makau in Khadaf Developers Limited v Diamond Trust Bank Limited [2020] eKLR,“The Court should not uphold a technicality and sacrifice substance or justice" and "where necessary, the Court should bend backwards to accommodate a litigant rather than displace him from the seat of justice for want of form,"a principle firmly anchored in Article 159(2)(d) of the Constitution of Kenya 2010, which enjoins Courts to administer justice without undue regard to procedural technicalities, and in Sections 1A, 1B and 3B of the Civil Procedure Act. 37.The further principle articulated by Justice Apaloo in Philip Chemowolo & Anor v Augustine Kubede (1982-88) KAR 103 that:“Blunders will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case heard on merit" and that "unless there is fraud or intention to overreach, there is no error or default that cannot be put right by payment of costs" 38.This position reinforces this Court's inclination to resolve both applications in favour of the Plaintiffs, bearing in mind always that the suit concerns the alleged fraud perpetrated against a now 98-year-old deaf, dumb and illiterate lady in respect of her land, and that the denial of these orders would effectively shut out a vulnerable litigant from the seat of justice without her case ever being heard on its merits. Final Disposal Orders 39.Having carefully considered both applications, the Grounds of Opposition, the Replying Affidavit of the 5th Respondent, and the written submissions of the Plaintiffs/Applicants, and being guided by the overarching principle that Courts exist, as was stated in Philip Chemowolo & Anor v Augustine Kubede (supra),“For the purpose of deciding the rights of parties and not the purpose of imposing discipline," 40.This Court finds that the Plaintiffs/Applicants have on a balance established sufficient grounds to warrant the grant of the orders sought in both applications, and accordingly makes the following orders:i.In respect to the application dated 2/10/2025:i.The application dated 2/10/2025, the dismissal order made on 20/05/2024 is hereby set aside and the Plaintiffs' suit is reinstated for hearing on its merits.ii.The ex-parte evidence recorded in the Counterclaim is hereby vacated, and the Counterclaim shall be heard afresh alongside the main suit.iii.The Applicants shall pay the 5th and 6th Defendants thrown-away costs of Kshs. 50,000/- within thirty (30) days from the date hereof, as a condition precedent to the continuation of the suit.ii.In respect to the application dated 2/08/2025:iv.The Plaintiffs are hereby granted leave to amend their Plaint in terms of the Draft Amended Plaint annexed to the application and the said draft Amended Plaint is deemed as duly filed upon payment of the requisite filing fees.v.The Amended Plaint shall be filed and served upon all Defendants (including the 11th Defendant) within fourteen (14) days.vi.The enjoined 11th Defendant, Safaricom Investment Co-operative (SIC), by itself, its officials, agents and/or servants, is hereby restrained by way of an injunction from continuing with any construction, development, sale, transfer, mortgaging, alienation, leasing and/or further improvement of the suit property or any portion thereof forming part of or a sub-division of Kiambaa/Ruaraka/999, pending the hearing and final determination of this suit.vii.An order is hereby issued for the maintenance of the status quo in respect of all other sub-divisions of the suit property Kiambaa/Ruaraka/999 as against the 1st to 9th Defendants, restraining them, their agents, servants and/or employees from occupying, alienating, leasing, charging, selling, developing and/or constructing on the said property, pending the hearing and final determination of this suit.viii.The costs of the application dated 20/08/2025 shall be in the cause.ix.The matter is hereby fixed for a Pre-trial Conference on 30/06/2026 for the purpose of setting a firm hearing schedule, and the parties and their Advocates are placed on strict notice that no further indulgences by way of adjournments shall be countenanced by this Court.Orders Accordingly. DATED SIGNED AND DELIVERED VIRTUALLY AT THIKA VIA VIDEOLINK THIS 18TH DAY OF JUNE, 2026.………………………MOGENI JJUDGEIn the presence of:Mr. Njenga Jeremy for the Plaintiff/ApplicantM/s Waititu for the 5th and 6th Defendants1st, 2nd, 3rd, 4th and 7th – 11th Defendants - AbsentMs. Lillian - Court Assistant………………………MOGENI JJUDGE