https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3993

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT THIKA** **ELC CASE NO. 397 OF 2017** **MARAGRET WANGUI KARUGU** **…………………..** **PLAINTIFF/APPLICANT** **VERSUS** **JOHN NJENGA KARUGU** **…………..……..** **1ST DEFENDANT/RESPONDENT** **MARY NJERI NJENGA …………………... 2ND DEFENDANT/RESPONDENT ELIUD KARUGU GATAMBIA ……….…... 3RD DEFENDANT/RESPONDENT ESTHER NYATUGA MURIITHI ………….4TH DEFENDANT/RESPONDENT** **DISTRICT LAND REGISTRAR** **KIAMBU……………………………….………. 5TH DEFENDANT/RESPONDENT** **RULING** 1. By a Notice of Motion dated 7th August 2025 the Applicant approached the Court seeking the following Orders: 2. *THAT the firm of WANJIKU MWAURA & COMPANY ADVOCATES be allowed to come on record after judgment so as to represent the Plaintiff/Applicant in place of KENLEE & COMPANY ADVOCATES. The Notice of Change of Advocates herein attached be deemed as duly filed.* 3. *THAT the Honourable Court be pleased to set aside its ruling dated 27th March 2024 dismissing the application dated 17th January 2024 seeking the review of the Judgment dated 9th December 2021.* 4. *THAT the Honourable Court be pleased to allow the application dated 17th January 2024 to be heard and determined on merit.* 5. *THAT pending the hearing and determination of this application the Honourable Court be pleased to issue preservatory orders for title number MUGUGA/KAHUHO/470 and/or if already subdivided the subsequent titles which resulted from the same subdivision be preserved.* 6. *THAT pending the hearing and determination of the application for review dated 17th January 2024 the Honourable Court be pleased to issue preservatory orders for title number MUGUGA/KAHUHO/470 and/or if already subdivided the subsequent titles which resulted from the same subdivision be preserved.* 7. *THAT the Plaintiff/Applicant be allowed to withdraw the Notice of Appeal dated 15th January 2021 to give way to give way to the hearing of the application for review of the judgment dated 9th December 2021.* 8. *THAT the costs of this application be provided.* 9. The application was premised on the grounds on the face of it and the supporting affidavit of Margaret Wangui Karugu sworn on even date. 10. The Applicant’s position is that their suit was dismissed by the judgment dated 9th December 2021. Thereafter the applicant instructed her former counsel on record, KIMATHI WANJOHI MULI ADVOCATES to file a Notice of Appeal dated 17th December 2021 and an application for stay of execution of the judgment dated 16th December 2021pending the hearing and determination of the appeal. 11. The Applicant asserts that by a ruling dated 9th March 2022, the application for stay was allowed on condition that the same be prosecuted in a period of 12 months. 12. The Applicant’s position is that, upon further consideration, her former counsel advised that the Notice of Appeal be withdrawn and that an application for review, dated 17th January 2024, be filed in its stead. However, the Applicant states that, for reasons unknown to her, the application for review was filed without first withdrawing the Notice of Appeal. 13. The Applicant contends that, owing to an error by her former advocates in failing to withdraw the Notice of Appeal, the application for review was ultimately dismissed on a technical ground arising from that omission, thereby defeating its determination on the merits. 14. The Applicant submits that the missteps of her former advocate ought not, in law or in equity, be laid at her feet. The Applicant maintains that she was entitled to repose confidence in counsel, who bore the duty to chart and execute the procedural course of the matter, including the withdrawal of the Notice of Appeal in accordance with the advice tendered. Any failure in that regard, she contends, lies wholly at the door of counsel and ought not be permitted to extinguish her right to be heard on the substance of her grievance. 15. The Applicant further urges that the intended application for review discloses arguable grounds with reasonable prospects of success and ought to be admitted for determination on its merits rather than disposed of on account of procedural default. 16. The application was vehemently opposed vide he replying affidavit of John Njenga Karugu sworn on 9th October 2025. The 1st Respondent termed the application as wholly without merit and urged the court to dismiss it with costs. 17. The application was canvassed by written submissions. 18. Having considered the application the, replying affidavit in opposition, the rival submissions and the relevant authorities, the key issue for determination is: *Whether sufficient cause has been shown to set aside the order dismissing the application for review.* **Analysis and Determination** 1. The Court is called upon to determine whether the door to substantive justice was unjustly closed on account of a procedural misstep, and if so, whether sufficient cause has been shown to warrant its reopening. 2. It is not in dispute that the application for review dated 17th January 2024 was not determined on its merits but was instead dismissed on 24th March 2024 on account of a procedural lapse said to have arisen from the existence of a Notice of Appeal dated 17th December 2021 that had not been withdrawn at the material time. 3. The Applicant attributes this lapse to an error on the part of her former advocates and urges the Court to find that she ought not to be punished for counsel’s omission. 4. The Court is alive to the established jurisprudence that a litigant should not, as a general rule, be visited with the mistakes of counsel where such mistakes are not shown to be part of a deliberate design, indolence, or abuse of process. 5. The Court’s discretion to set aside a dismissal order, though wide, is not at large. It must be anchored on material placed before the Court showing sufficient cause, for discretion is not exercised in a vacuum but on a factual foundation. 6. In **Shah v Mbogo & Another [1967] EA 116**, the Court stated: ***“The discretion to set aside an ex-part judgment is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error but it is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the cause of justice.”*** 1. The Court is therefore required to interrogate whether the circumstances placed before it disclose an excusable error or inadvertence, or whether the default is of such character as to fall outside the protective ambit of that discretion. 2. In the present case, the Applicant attributes the dismissal to an omission by her former advocates in failing to withdraw the Notice of Appeal prior to the filing of the application for review. 3. The Respondent resists the application and places reliance on delay. It is pointed out that the present application was filed some 19 months after the impugned ruling. 4. The Respondents contends that the delay by the Applicant is a reflection of a broader pattern in the conduct of the proceedings, which the Respondent characterises as indolent and indicative of an abuse of the court process. On that basis the Court is urged to decline the reliefs sought and bring the matter to finality. 5. Delay calls for a satisfactory explanation, for equity aids the vigilant and not the indolent. The Court must therefore ask whether the delay by the Applicant in filing the instant application has been sufficiently accounted for and whether it can be reconciled with the explanation tendered for the procedural lapse. 6. In the present case the explanation advanced traces the difficulty to counsel’s omission in the handling of the Notice of Appeal and the consequential dismissal of the application for review. While that explanation may address the immediate cause of the dismissal, it does not, in itself, fully account for the extended period thereafter before the present application was brought. 7. No material has been placed before the Court demonstrating steps taken to follow up the matter, seek clarification, or move with promptitude upon learning of the dismissal. The period that followed is marked by silence. 8. In those circumstances, the explanation falls short of accounting for the delay in its entirety. 9. The Respondent’s contention of indolence is therefore not without basis. The conduct disclosed on record reflects a lack of diligence inconsistent with the prompt pursuit of relief. 10. That finding, however, does not dispose of the Applicant's principal contention that the dismissal of the application for review stemmed from an error attributable to former counsel. 11. The Court has cautioned that the existence of counsel’s mistake, or reliance upon it, does not automatically entitle a party to relief. 12. In **Tana and Athi Rivers Development Authority v Jeremiah Kimigho Mwakio & 3 others [2015] eKLR**, the Court stated: ***“… it is without doubt that courts will readily excuse a mistake of counsel if it affords a justiciable, expeditious and holistic disposal of a matter. However, it is to be noted that the exercise of such discretion is by no means automatic.”*** 1. The principle presupposes a satisfactory explanation for the default and a litigant who has acted with reasonable diligence. Where those elements are absent, the mere attribution of fault to counsel cannot, without more, tilt the balance in favour of relief. 2. In the present case, the Court is not persuaded that the Applicant has discharged the burden placed upon her. The explanation offered addresses only part of the procedural history and leaves unexplained a significant period of inactivity. In the absence of a complete and credible account, the Court is unable to find sufficient cause to warrant the exercise of its discretion in her favour. 3. Accordingly, the application dated 7th August 2025 is hereby dismissed with costs. It is so Ordered. **Dated, Signed and Delivered, virtually at Thika this 29th day of June 2026** …………….………….. **J. M. ONYANGO** **JUDGE** **In the presence of:** Ms. Wanjjiku Mwaura for the Plaintiff/Applicant Mr. Wambola for Mr. Ongoya, SC for the Respondent Court Assistant : Hinga