https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4687

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KAJIADO** **ELC APPEAL NO. 8 OF 2017** **FRANCIS KASUKI & 50 OTHERS.........................................APPELLANTS/APPLICANTS** **VERSUS** **THE NATIONAL LAND COMMISSION.................................................1ST RESPONDENT** **THE KENYA RAILWAYS CORPORATION.........................................2ND RESPONDENT** **THE ATTORNEY GENERAL...................................................................3RD RESPONDENT** **KAJIADO COUNTY GOVERNMENT....................................................4TH RESPONDENT** **CHINA ROADS AND BRIDGES CONSTRUCTION COMPANY.......5TH RESPONDENT** ### **RULING** ***(In respect of the Notice of Motion application dated 18th December 2025 seeking to have the appeal reinstated)*** **Introduction** 1. This ruling is in respect of the Notice of Motion application dated 18th December 2025, brought by the Appellants/Applicants, Francis Kasuki & 50 Others. The application is brought under the provisions of Article 159 of the Constitution of Kenya, Sections 1A and 3A of the Civil Procedure Act, Order 51 of the Civil Procedure Rules, and all other enabling provisions of the law. 2. By the said application, the Applicants seek the following orders from this Court: "1. THAT this Honourable Court be pleased to set aside the Order of Honourable Justice David Mugo made on 2nd December 2025, dismissing Civil Appeal No. 8 of 2017 together with all other consequential Orders. 2. THAT the Appeal be reinstated for hearing on its merits. 3. THAT the costs of this Application be provided for." 3. The application is supported by the affidavit of Kieti D. Ndolo, an advocate practicing with the firm of Kilonzo & Company Advocates, sworn on 18th December 2025. The Applicants premise their request on the assertion that the dismissal of the appeal on 2nd December 2025 was based on a request for adjournment that was necessitated by the sudden exit of the previous counsel handling the matter and the current counsel’s commitment to pre-scheduled, global examinations. The Applicants further contend that their prior failure to comply with court directions regarding the identification and supply of a list of surviving Appellants was inadvertent, having been caused by previous counsel's failure to communicate, and that they are desirous of prosecuting the suit to its conclusion. 4. The application is opposed by the Respondents. The 1st Respondent, through its Grounds of Opposition filed on 26th March 2026, contends that the application is misconceived, incompetent, and an abuse of the court process, further arguing that this Honourable Court is *functus officio* as it has already dismissed the appeal. 5. Similarly, the 2nd Respondent opposes the application via a Replying Affidavit sworn by Stanley Gitari on 5th March 2026. The 2nd Respondent asserts that the Appellants have engaged in inordinate, premeditated, and systematic delay in prosecuting the appeal since 2015. It is the 2nd Respondent’s position that the dismissal of the appeal was lawful and that reinstating the matter would undermine the principle of finality in litigation, causing substantial prejudice to the Respondents. **Directions** 1. The application was canvassed by way of written submissions, the submissions of which have been duly considered in the writing of this ruling. **Issues for determination** 1. I have carefully considered the Notice of Motion dated 18th December 2025, the supporting affidavit, the Grounds of Opposition by the 1st Respondent, the Replying Affidavit filed by the 2nd Respondent, together with the written submissions and authorities relied upon by the respective parties. In my considered view, the singular issue that falls for determination is whether the Applicants have laid a sufficient basis to warrant the setting aside of the order made on 2nd December 2025 dismissing this appeal for want of prosecution and whether the appeal ought to be reinstated for hearing on its merits. **Analysis and Determination** 1. The power of the Court to set aside its own orders dismissing a suit or an appeal is well settled. It is an exercise of judicial discretion, which discretion, although wide, must be exercised judiciously, on sound legal principles and not capriciously. The overarching objective is to ensure that justice is administered fairly to all parties while balancing the competing principles of finality of litigation and the constitutional imperative that disputes be determined on their merits where circumstances permit. 2. The locus classicus on the exercise of judicial discretion to set aside ex parte orders remains ***Shah v Mbogo & Another [1967] EA 116***, where Harris J., as approved by the East African Court of Appeal, stated that: ***"This discretion 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."*** 1. This principle has consistently guided Kenyan courts whenever they are invited to exercise the discretionary jurisdiction to set aside dismissal orders. 2. Similarly, in ***Patel v E.A. Cargo Handling Services Ltd [1974] EA 75***, Duffus P. emphasized the breadth of the Court's discretion in the following terms: ***"There are no limits or restrictions on the judge's discretion except that if he does vary the judgment, he does so on such terms as may be just. The main concern of the court is to do justice to the parties."*** 1. It therefore follows that the Court is not constrained by rigid rules but must interrogate all the circumstances of the particular case to determine whether sufficient cause has been demonstrated. 2. The Applicants contend that the dismissal of the appeal arose after counsel sought an adjournment owing to the unexpected departure of the advocate previously handling the matter and because the advocate who assumed conduct of the file was engaged in pre-scheduled international examinations. They further attribute their previous failure to comply with directions requiring the filing of a list of surviving appellants to the omission of their former advocate, maintaining that they have always been desirous of prosecuting the appeal. 3. The Respondents, on the other hand, argue that the application is but another manifestation of a long history of delay spanning several years, and that the Applicants ought not to benefit from their indolence. The 1st Respondent has additionally contended that this Court became functus officio upon dismissing the appeal. 4. I shall first address the question whether this Court is functus officio. 5. The doctrine of functus officio embodies the principle that once a court has conclusively determined a matter, it lacks jurisdiction to revisit its decision except as provided by law. The Supreme Court in ***Raila Odinga & 2 Others v Independent Electoral and Boundaries Commission & 3 Others [2013] eKLR*** explained the doctrine thus: ***"The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision-making powers may, as a general rule, exercise those powers only once in relation to the same matter."*** 1. However, that principle does not operate in a vacuum. Where the law expressly grants a court jurisdiction to set aside or vary its own interlocutory or procedural orders, the doctrine does not preclude the court from exercising that jurisdiction. 2. Indeed, Order 12 Rule 7 of the Civil Procedure Rules provides: *"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. Further, Sections 1A and 1B of the Civil Procedure Act obligate courts to facilitate the just, expeditious, proportionate and affordable resolution of civil disputes, while Section 3A preserves the Court's inherent jurisdiction to make such orders as may be necessary for the ends of justice or to prevent abuse of its process. 2. In my view, an application seeking reinstatement of a matter dismissed for non-attendance or want of prosecution does not invite the Court to sit on appeal over its own judgment. Rather, it invokes a jurisdiction expressly donated by statute and the Rules. Consequently, I am unable to agree with the 1st Respondent's contention that the Court is functus officio. 3. The next question is whether the Applicants have demonstrated sufficient cause for the exercise of the Court's discretion in their favour. 4. The Court of Appeal in ***Ivita v Kyumbu [1984] KLR 441*** laid down the applicable test in applications arising from delay when Chesoni J. (as he then was) stated: ***"The test is whether the delay is prolonged and inexcusable, and, if it is, can justice nevertheless be done despite the delay. Justice is justice to both the plaintiff and the defendant; so both parties to the suit must be considered."*** 1. Likewise, in ***Philip Chemwolo & Another v Augustine Kubende [1982-88] KAR 103***, Apaloo JA famously observed: ***"Blunders will continue to be made from time to time and it does not follow that because a mistake has been made, the party should suffer the penalty of not having his case determined on its merits."*** 1. The Court however immediately qualified that principle by emphasizing that there is no excuse for a litigant who deliberately seeks to obstruct or delay the course of justice. 2. The record before me demonstrates that this appeal has remained pending for a considerable period. Equally evident is that this Court had previously directed the Applicants to identify the surviving appellants following the demise of some of them, a direction with which compliance was not forthcoming within the timelines given. It is also apparent that when the matter came up on 2nd December 2025, counsel sought an adjournment which was declined, culminating in the dismissal of the appeal. 3. There is no doubt that the delay in the prosecution of this appeal has been substantial. The Court cannot ignore the legitimate concerns raised by the Respondents regarding the prolonged pendency of the matter and the prejudice associated with continued litigation. Litigation must, at some point, come to an end, and parties are expected to prosecute their cases with diligence. 4. Nevertheless, the Court must equally examine whether the explanation tendered is so implausible or so wanting as to disentitle the Applicants from relief altogether. 5. The Applicants have attributed the failure to comply with previous directions to the omission of their former advocate and have explained the request for adjournment by reference to an unexpected transition of the Advocate who previously had the conduct of this matter and the present counsel's unavoidable engagement in pre-arranged professional examinations. Although these explanations do not wholly excuse the lengthy delay that has characterized this appeal, they do not likewise disclose a deliberate intention to obstruct or defeat the administration of justice. More importantly, there is no evidence that the Applicants themselves personally orchestrated the delay or acted in bad faith. 6. The Court is also mindful that the subject matter of this appeal concerns land rights arising from compulsory acquisition for the Standard Gauge Railway project, issues that implicate proprietary interests protected under Article 40 of the Constitution. Such disputes ought, where reasonably possible, to be determined on their substantive merits rather than terminated on procedural defaults, provided that the opposite parties can adequately be compensated by an award of costs and by the imposition of strict timelines. 7. Article 159(2)(d) of the Constitution commands courts to administer justice without undue regard to procedural technicalities. It provides that: *"Justice shall be administered without undue regard to procedural technicalities."* 1. That constitutional command, however, does not excuse indolence or non-compliance with court directions. As the Supreme Court observed *in* ***Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR***: ***"This Court, indeed all courts, must never provide succour and cover to parties who exhibit scant respect for rules and timelines. Those rules and timelines serve to make the process of judicial adjudication and determination fair, just, certain and even-handed."*** 1. At the end of it all, the Court must strike a careful balance between enforcing procedural discipline and ensuring that deserving litigants are not shut out from the seat of justice by mistakes that can be remedied without occasioning irreparable prejudice. 2. Having weighed all the competing considerations, I am satisfied that the prejudice likely to be occasioned to the Respondents by reinstatement can adequately be ameliorated by an award of costs and by imposing firm timelines for compliance and prosecution of the appeal. Conversely, sustaining the dismissal would permanently extinguish the Applicants' right to ventilate their grievance on appeal without the issues having been determined on their merits. 3. In the totality of the circumstances, and guided by the authorities cited above, I am persuaded that this is a proper case for the exercise of this Court's discretion in favour of the Applicants. However, the Applicants have only themselves to blame for the circumstances giving rise to the present application. They shall therefore not be indulged further beyond the strict timelines that shall accompany the orders of this Court, and any default in complying therewith shall attract appropriate sanctions, including possible dismissal without further recourse. 4. Consequently, I make the following orders: 5. The Notice of Motion dated **18th December 2025** is hereby **allowed**; the order made on **2nd December 2025** dismissing the appeal together with all consequential orders is hereby **set aside** and the appeal is hereby **reinstated** for hearing and determination on its merits. 6. The Appellants shall, within **Forty Five (45) days** from the date hereof, fully comply with all outstanding pre-trial directions, including filing and serving a verified list of the surviving Appellants and taking all necessary steps to regularize the record of appeal, where necessary. 7. In default of compliance with Order (b) above, within the stipulated period, the orders of reinstatement granted herein shall stand discharged unless the Court otherwise orders upon application. 8. The Applicants shall bear the costs of the present application, in any event. It is so ordered. **Dated, Signed and Delivered at Kajiado Virtually this 21st Day of July 2026.** **M.D. MWANGI** **JUDGE** **In the virtual presence of:** Mr. Nzolo h/b for Mr. Kilonzo for the Appellants/Applicants Ms. Kimathi for the 1st Respondent Mr. Nyakiti h/b for Mr. Agwara for the 2nd Respondent N/A by the 3rd – 5th Respondents Court Assistant: Alex **M.D. MWANGI** **JUDGE**