https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/701

 **REPUBLIC OF KENYA** **IN THE SENIOR PRINCIPAL MAGISTRATE'S COURT AT MAKINDU** **ENVIRONMENT AND LAND CASE NO 84 OF 2014** **JOSEPH KATISYA…………………………......................................................PLAINTIFF/APPLICANT** **VERSUS** **KOTOO NDANGILI………………..................................................1ST DEFENDANT/RESPONDENT** **NDOLO NGUMBI………………………...........................................2ND DEFENDANT/RESPONDENT** **MUNYWOKI KINYILI………………………………………………………….…3RD DEFENDANT/RESPONDENT** **MUTIE MAKALA…………………………………………………………………..4TH DEFENDANT/RESPONDENT** **RULING** **THE APPLICATION** The application for determination is dated 6/5/2025 brought by the plaintiff pursuant to the provisions of Order 12 rule 7 of the Civil Procedure rules. The application seeks the following orders: 1. That the Honourable court be pleased to set aside the order dated 4/9/2018 dismissing the suit for non-attendance and admit it for hearing; 2. Costs be awarded. The application is supported by the affidavit sworn by one Pius Mutuku, Advocate for the plaintiff and is premised on the following ground: 1. The plaintiff was sick thus unable to proceed with the case. In the affidavit in support of the application, counsel for the plaintiff reiterated the ground on the face of the application and further deposed that when he went to check what had happened, he realised that the matter had been dismissed for non-attendance. That all that time, the plaintiff had been unwell but was now ready to prosecute the matter. **RESPONSE BY THE DEFENDANTS** The defendants did not file any response to the application. **MAIN ISSUES OR QUESTIONS FOR DETERMINATION** Having perused the application, I find that the main issues or questions for determination are as follows: 1. Whether there are sufficient grounds to warrant setting aside of the order of dismissal of the suit made on 4/9/2018; 2. Whether the suit herein ought to be reinstated; 3. What other orders should the court make if need be? 4. What orders should the court make with respect to costs of the application. **The legal provisions** Order 17 rule 2 of the Civil Procedure Rules provides that: ***"(1) In any suit in which no application has been made or step taken by either party for one year, the court may give notice in writing to the parties to show cause why the suit should not be dismissed, and if cause is not shown to its satisfaction, may dismiss the suit.*** ***(2) If cause is shown to the satisfaction of the court it may make such orders as it thinks fit to obtain expeditious hearing of the suit.*** ***(3) Any party to the suit may apply for its dismissal as provided in sub-rule 1.*** ***(4) The court may dismiss the suit for non-compliance with any direction given under this Order.*** ***(5) A suit stands dismissed after two years where no step has been undertaken.*** ***(6) A party may apply to court after dismissal of a suit under this Order.”*** Section 1A of the Civil Procedure Act provides as follows: ***"(1) The overriding objective of this Act and the rules made hereunder is to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act.*** ***(2) The Court shall, in the exercise of its powers under this Act or the interpretation of any of its provisions, seek to give effect to the overriding objective specified in subsection (1).*** ***(3) A party to civil proceedings or an advocate for such a party is under a duty to assist the Court to further the overriding objective of the Act and, to that effect, to participate in the processes of the Court and to comply with the directions and orders of the Court".*** Section 1B provides thus: ***"(1) For the purpose of furthering the overriding objective specified in section 1A, the Court shall handle all matters presented before it for the purpose of attaining the following aims— (a) the just determination of the proceedings;*** ***(b) the efficient disposal of the business of the Court;*** ***(c) the efficient use of the available judicial and administrative resources;*** ***(d) the timely disposal of the proceedings, and all other proceedings in the Court, at a cost affordable by the respective parties; and*** ***(e) the use of suitable technology".*** Section 3A provides: ***“Nothing in this Act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court".*** Article 159(2) (b) of the Constitution provides that in exercising judicial authority, the courts and tribunals shall be guided by the principle that justice shall not be delayed. **ANALYSIS AND DETERMINATION** I have carefully considered the application. To begin with, the application was made under the wrong provision of law. The plaintiff appears to have been under the wrong impression that the suit was dismissed for non-attendance. The record indicates that the suit was dismissed under Order 17 rule 2 of the Civil Procedure Rules. The dismissal was for want of prosecution. The application ought to have been brought under Order 17 rule 2(6) of the Civil Procedure Rules. From the provisions of Order 17 rule 2(6) of the Civil Procedure Rules, it is clear that the power to set aside an order of dismissal of a suit is within the discretion of the court. In the case of ***Edward Juma Malovi v Peter Ndirangu [2006] eKLR,*** it was held that the court has unfettered discretion to set aside a dismissal order and further, that such discretion ought to be exercised judiciously to avoid injustice. In the case of ***Patel v EA Cargo Handling Services Ltd [1974] EA 75*** the Court of Appeal per Duffus President of the Court stated thus: ***“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 and the court will not impose conditions on itself or fetter the wide discretion given it by the rules……….the principle obviously is that unless and until the Court has pronounced judgment upon the merits or by consent, it is to have power to revoke the expression of its coercive power where that has obtained only by a failure to follow any of the rules of procedure.”*** In ***Shah v Mbogo [1967] E.A 116*** at 123, Harris J. held as follows; ***"I have carefully considered, in relation to the present application, the principles governing the exercise of the court's discretion to set aside a judgement obtained ex parte. This 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 has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice."*** In the case of ***Smith v Middleton [1972] SC 30***, it was held that discretionary power should be exercised judicially and in a selective and discriminatory manner, not arbitrarily and idiosyncratically. The suit had been in court for over four (4) years before it was dismissed. There has been delay in prosecuting the suit. No witness has ever testified herein. It is the plaintiff who brought the defendants to court and who seeks a remedy from the court. The plaintiff therefore bears the main burden of bringing the suit to conclusion. My view is buttressed by the finding in the case of ***Mukisa Biscuit Manufacturing Company Limited v West End Distributors Limited [1969] EA 696***, where it was held that it was the duty of the plaintiff to bring his suit to early trial and he cannot absolve himself of this primary duty by saying that the defendant consented to the delay. Similarly, in the case of ***Mobile Kitale Services v Mobil Oil Kenya Limited & Another***, Warsame J (as he then was), while citing the case of ***Nilani v Patel [1969] EA 341***, observed thus: ***"....it is only too trite to say that as in every civil suit, it is the plaintiff who is in pursuit of a remedy, that he should take all the necessary steps at his disposal to achieve an expeditious determination of his claim. He should not be guilty of laches. On the other hand, when he fails to bring his claim to a speedy conclusion, it is my view that a defendant ought to invoke the process of the court towards that end as soon as is convenient by either applying for its dismissal or setting down the suit for hearing........Delay in these cases is much to be deplored. It is the duty of the plaintiff's advisor to get on with the case. Every year that passes prejudices a fair trial................."*** The record indicates that the last time the matter was in court before the dismissal was on 4/6/2014. It took over four years before the matter was dismissed. According to Order 17 rule 2(5) of the Civil Procedure Rules, a suit stands dismissed by operation of law after two years if no action or step is taken. This implies that upon expiry of two years from 4/6/2014, the suit stood dismissed when the plaintiff failed to take any step or action. The application herein was filed on 18/6/2025. That is after a period of about seven years from the date of dismissal of the suit. It is alleged that the plaintiff did not attend court because he was sick. The allegation was made by counsel for the plaintiff. I have a problem with the manner in which the court was moved. The affidavit in support of the application was sworn by counsel for the plaintiff. Order 19 rule 3(1) of the Civil Procedure Rules provides as follows: ***"Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove:*** ***Provided that in interlocutory proceedings, or by leave of the court, an affidavit may contain statements of information and belief showing the sources and grounds thereof".*** In the case of ***Gerphas Alphonse Odhiambo v Felix Adiego [2006] eKLR***, Waki JA (as he then was) held as follows: ***"An affidavit, by definition, is evidence given on oath and is subject to the provisions of the Evidence Act, Cap 80 – see section 2(2). Admissibility of hearsay evidence must therefore be shown to comply with the provisions of that Act. Ordinarily, an affidavit should not be sworn by an advocate on behalf of his client or clerk when those persons are available to swear and prove the facts of their own knowledge. In appropriate cases such affidavits may be struck out or given little or no weight at all. Even where exception is made to section 2(2) of the Evidence Act, as it is in interlocutory proceedings under the Civil Procedure Rules, Order 18 rule 3(1) (now Order 19), the need to ensure that facts are proved by a person or persons who have personal knowledge of such facts is closely guarded. This Court interpreted that provision in Kenya Horticultural Exporters [1977] Ltd v Pape (trading as Osirua Estate) [1986] KLR 705 where it stated:*** ***“Order XVIII rule 3(1)(now Order 19) of the Civil Procedure Rules is not to be understood to provide that an affidavit in interlocutory proceedings may be sworn by a deponent who is unable of his own knowledge to prove facts, or that such an affidavit may be confined entirely to statements of information and belief even if the sources and grounds are shown. The words “may contain” suggest that the main body of such an affidavit has to be confined to facts which the deponent is able of his own knowledge to prove.”*** (Emphasis supplied) In my view, the issue of the plaintiff’s sickness ought to have been deposed by the plaintiff himself and not his counsel. Why couldn’t the plaintiff swear an affidavit to state so? That is not a matter which counsel could prove of his own knowledge. It is not clear where counsel obtained the information that the plaintiff was unwell. It is not clear for how long the plaintiff was unwell since he went into slumber from 4/6/2014 to 18/6/2025. Was the plaintiff unwell for eleven (11) years? Furthermore, there is absolutely no evidence to show that the plaintiff was unwell even for one day. The application was made so casually without bothering to attach any evidence. There has been inordinate delay in filing the application. In the case of ***Argan Wekesa Okumu v Dima college Limited & 2 Others [2015] eKLR***, Mabeya J held that when delay has been established, unless it is well explained, it becomes inexcusable. The explanation given by counsel for the plaintiff is not plausible at all and is not supported by any evidence. It is even doubtful whether counsel was instructed to file the application since there is no affidavit by the plaintiff. No reason at all has been given to explain why it took the plaintiff or his counsel 11 years to move the court. Section 1A of the Civil Procedure Act provides that the overriding objective of the Act and the rules made thereunder is to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act and that the Court shall, in the exercise of its powers under the Act or the interpretation of any of its provisions, seek to give effect to the overriding objective. It is also provided that a party to civil proceedings or an advocate for such a party is under a duty to assist the Court to further the overriding objective of the Act and, to that effect, to participate in the processes of the Court and to comply with the directions and orders of the Court. Section 1B of the Civil Procedure Act enjoins the court to ensure timely disposal of proceedings, among other things. The plaintiff has, without reasonable cause or excuse, failed to assist the court to further the overriding objective of the Act. My view is that a party in default cannot claim as of right, but must earn the court's succour. It does not matter that the application is unopposed. The same applies to the overriding objective captured under sections 1A and 1B of the Civil Procedure Act. A party who decides to sit on their rights and delay or derail the due process cannot hide under the guise of "procedural technicality". Expeditious disposal of disputes is key to all cases and is fundamental to the administration of justice. It is a component of substantive justice as opposed to mere procedural technicalities. I would borrow the words of the Court of Appeal in the case of ***John Ongeri Mariaria & 2 Others v Paul Mutundura [2004] 2******EA 163***, wherein the Court observed quite authoritatively that: ***“Legal business can no longer be handled in such sloppy and careless manner. Some clients must learn at their costs that the consequences of careless and leisurely approach to work must fall on their shoulders ….whereas it is true that the court has unfettered discretion, like all judicial discretions, must be exercised upon reason not capriciously or sympathy alone……justice must look both ways as the rules of procedure are meant to regulate administration of justice and they are not meant to assist the indolent.”*** In the case of ***AGGREY O. OBARE v TELKOM KENYA LIMITED [2011] KEHC 2161 (KLR),*** Kimaru J (as he then was) had this to say on the issue of delay: ***“In the present application, although the proceedings were ready on 30th August 2010, (within the period in which the applicant would have lodged the appeal) the applicant did not present the present application to this court until three months later i.e. on 1st December 2010. The applicant did not give a cogent reason for this delay. It is clear that the applicant was indolent. He is guilty of laches. This court cannot exercise its discretion in favour of such indolent litigant. The justice of this case demands that this court declines to exercise its discretion in favour of the applicant”.*** In the case of ***Abigael Barmao v Mwangi Theuri [2013] KEELC 78 (KLR),*** Munyao Sila J (as he then was) held: ***“My view of this application is that the plaintiff has been guilty of laches. If a proper explanation had been provided as to why there has been a delay of more than 4 years, then probably I would have been moved to grant the injunction. But no explanation has been given, and I can only conclude that the plaintiff is guilty of delay. There is no doubt that 4 years before seeking relief is a period that is inordinately too long. I therefore decline to grant the injunction sought but make no orders as to costs. I direct the plaintiff to set down the suit for hearing and the matter to be determined on merits”***. The remedy sought by the plaintiff is founded in equity and one of the maxims of equity is that ***"delay defeats equity".*** In Snell's *Equity*, 30th Edition at p 33 para 3-16 (quoting Lord Camden L.C in ***Smith v Clay (1767) 3 Bro.* *C.C. 639n. at 640n****)* it is asserted that a court of equity: ***"..has always refused its aid to stale demands,* *where a party has slept upon his right and acquiesced for a great length of time. Nothing can call forth* *this court into activity, but conscience, good faith, and reasonable diligence; where these are wanting,* *the court is passive, and does nothing."*** The plaintiff herein is guilty of laches. He has not even explained why he could not move the court in good time. It is not even clear when the plaintiff or his counsel discovered that the suit had been dismissed. It took the plaintiff seven (7) years to move the court after dismissal. In the case of ***Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR***, the Supreme Court of Kenya held as follows: ***"Time is a crucial component in dispensation of justice, hence the maxim: Justice delayed is justice denied. It is a litigant's legitimate expectation where they seek justice that the same will be dispensed timeously. Hence, the various constitutional and statutory provisions on time frames within which matters have to be heard and determined............. Extension of time being a creature of equity, one can only enjoy it if he acts equitably: he who seeks equity must do equity. Hence, one has to lay a basis that he was not at fault so as to let time to lapse. Extension of time is not a right of a litigant against a court, but a discretionary power of the courts which litigants have to lay a basis where they seek courts to grant it".*** The Supreme Court, in the above case, laid down the following underlying principles that a court should consider when exercising its discretion to extend time: 1. Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court; 2. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court; 3. Whether the court should exercise the discretion to extend time is a consideration to be made on a case to case basis; 4. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court; 5. Whether there will be any prejudice suffered by the respondent if the extension is granted; 6. Whether the application has been brought without undue delay; and 7. Whether in certain cases like election petitions, public interest should be a consideration for extending time. Given the circumstances of this case, the plaintiff does not meet the threshold that would warrant the court to grant him an extension of time to prosecute his case***.*** I have already pointed out that no good reasons have been given to explain the delay. My understanding of sections 1A, 1B and 3A of the Civil Procedure Act is that the provisions cannot be invoked as a matter of course so as to excuse all and any kind of failing on the part of a party to abide by the requirements of the rules. In my view, the overriding objective was brought to ensure that justice is served to both parties and further, where there is a conflict of the Oxygen Rules Principles with the substantive law, the law ought to be interpreted in such a manner that will ensure the administration of justice. I find nothing in the overriding objective to suggest that the delay herein, which has not been sufficiently explained can be excused. Delay is an anathema to a fair trial which is one of the key fundamental rights provided to all litigants under Article 50 of the Constitution. Furthermore, it would be an abuse of the court process and contrary to the constitutional principles espoused in Article 159 that requires justice to be administered without delay, to allow a party to bring their action after inordinate delay, without any justifiable reason. The application is clearly an afterthought. Our system of justice is adversarial in nature. The court should not be used to aid an indolent party under the tag of “interest of justice”. I think I have said enough to show that the application is untenable. The conduct of the plaintiff as explained above defeats the prayers sought. The plaintiff cannot go into slumber then wake up and expect the court to assist him without even explaining why he was asleep all that time. **DISPOSITION** Consequently, I find that the application dated 6/5/2025 is devoid of merit. I proceed to DISMISS it. Since the application was unopposed, there shall be no orders as to costs. For avoidance of doubt, the suit stands dismissed. **DATED, SIGNED AND DELIVERED IN OPEN COURT AT MAKINDU THIS 4TH DAY OF AUGUST, 2026.** **Y.A SHIKANDA** **SENIOR PRINCIPAL MAGISTRATE.**