https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3489

Kavoo & 2 others v Lukenya Ranching and Farming Co-operative Society Limited & 3 others; King’Ola (Interested Party) (Environment and Land Case 43 of 2016) [2026] KEELC 3489 (KLR) (9 June 2026) (Ruling) Neutral citation: [2026] KEELC 3489 (KLR) Republic of Kenya In the Environment and Land Court at Machakos Environment and Land Case 43 of 2016 AY Koross, J June 9, 2026 Between Bernard Mbole Kavoo 1st Plaintiff Mutunga Musyoki 2nd Plaintiff David Mutuku Nzau 3rd Plaintiff and Lukenya Ranching and Farming Co-Operative Society Limited 1st Defendant John Kimani Mwega 2nd Defendant Machakos District Land Registrar 3rd Defendant Josiah Makau Nzioka 4th Defendant and Nzili King’Ola Interested Party Ruling 1.In this matter, it is necessary to highlight the background that triggered the applications dated 23 March 2026, 21 April 2026, and 26 April 2026, which were filed by various parties and are now the subject of this ruling. 2.The plaintiffs commenced proceedings against the defendants on 13 June 2016 and obtained an ex parte judgment in their favour on 16 November 2018. However, this judgment was subsequently set aside on 25 June 2021, and the matter was scheduled for rehearing. The parties then complied with pre-trial directions, resulting in the issuance of a hearing date for 12 November 2024. On that date, the plaintiffs’ then-counsel requested an adjournment, which was granted, thereby rescheduling the matter for a hearing on 5 March 2025. On that occasion, the plaintiff’s then counsel also sought an adjournment, which the court declined. 3.Hence, resulting in the dismissal of the plaintiff’s claim pursuant to Order 12 Rule 3 of the Civil Procedure Rules (CPR). Thereafter, the court proceeded with the counterclaim and, upon conclusion, directed the parties to file written submissions. During the course of these proceedings, the 1st plaintiff violated the doctrine of lis pendens by transferring Land Reference Mavoko Block 3/3342 (the “suit property”) to himself, subdividing and retaining one portion in his name while transferring the other parcels to third parties. 4.This resulted in some of the defendants seeking recourse from the court and on hearing the parties, the court, in its ruling dated 10 February 2026, ordered the government surveyor to amend the Registry Index Map (RIM) and directed the land registrar to cancel these subdivisions so that the suit property would revert to its original status in the name of John Kimani Mwega (2nd defendant and also 2nd plaintiff in the counterclaim), as evidenced by the title deed dated 28 May 2013. 5.This determination led to a flurry of applications, mentioned earlier in this ruling, all of which were unopposed, as in spite of the 2nd defendant presenting replying affidavits in opposition to the applications, he never bothered to file them despite being invoiced by the court. In the circumstances, these unfiled replying affidavits deposed on diverse dates of 31 March 2026 and 30 April 2026 are hereby expunged. Therefore, we shall highlight these applications by their filing dates. 6.The first application filed by the 1st plaintiff is dated 23 March 2026 and seeks the following orders: -a.Spent.b.That this honourable court be pleased to set aside the orders made on 5th March 2025, dismissing the plaintiffs’ suit for non-attendance, together with all consequential orders, and reinstate the suit for hearing on the merits.c.That the 1st plaintiff be granted leave to file the requisite pleadings, witness statements, and all supporting documents necessary for the just determination of this suit.d.That pending the hearing and determination of the suit, status quo be maintained, with all parties, their authorised agents, servants and/or employees restrained from interfering with the suit property.e.That the costs of this application should be in the cause. 7.Prayer (d) is overtaken by events, as a judgment will be rendered shortly. The motion is supported on the face of it by several grounds and by the supporting affidavit of the 1st plaintiff, deposed on 23 March 2026. In a nutshell, he avers that he was unaware that his case had been dismissed because his previous counsel failed to inform him of a hearing. Upon hiring new counsel, he discovered the dismissal and uncovered new evidence that the 4th defendant misled the court by failing to disclose ownership of two 20-acre parcels. He states that he seeks to have the suit reinstated so all facts can be considered, particularly as he is now the sole surviving plaintiff. He contends that justice requires reopening the case to protect his property rights. 8.His further affidavit, sworn on 17 April 2026, reiterated these averments and further maintains that, when filing an earlier replying affidavit in the May 2025 contempt application, he was not privy to the suit being dismissed and that the contempt proceedings were distinct and did not cure the prejudice occasioned by the dismissal of the substantive suit. 9.The 2nd application is filed by the legal administrators of the 3rd plaintiff and dated 21 April 2026. They pray for the following orders from this court: -a.Spent.b.That the applicants herein, namely Agnes Mukulu Mutuku and Serah Mwikali Mutuku, being the legal representatives of the estate of the deceased's 3rd plaintiff, be substituted in place of the 3rd plaintiff for purposes of prosecuting this suit.c.That the honourable court be pleased to set aside the orders made on 5th March 2025, dismissing the plaintiff's suit for non-attendance, together with all consequential orders and reinstate the suit for hearing on its merits.d.That the applicants be granted leave to amend and file the requisite pleadings, witness statements, and all supporting documents necessary for the determination of the suit.e.Spent.f.That the costs of this application be provided for. 10.The motion is supported on the face of it by several grounds and by the supporting affidavit of Agnes Mukulu Mutuku, deposed on 21 April 2026. Some of the assertions largely repeat the 1st plaintiff’s assertions, and this court need not restate them. However, she additionally avers that they only recently learned that, before their husband passed away, he, along with the 1st and 2nd plaintiffs (now deceased), had filed this suit against the defendants. The suit was dismissed on 5th March 2025 for non-attendance, and the defendants' counterclaim proceeded in the absence of the 3rd plaintiff or his legal representative. The failure to attend court and continue the case was unintentional, as the legal representatives of the deceased's estate were unaware of the suit. That they have now obtained a grant of letters of administration ad litem. 11.Additionally, in her supplementary affidavit sworn on 5 May 2026, Agnes Mukulu Mutuku informs the court that the motion is not an afterthought and that after the 3rd plaintiff’s death in 2019, only duly appointed legal representatives could act for his estate and the authority to act on record could not suffice. Further, at the time of his passing, he held a favourable court judgment, which was later set aside. She avers that the deceased had lawfully acquired the suit property, subdivided and sold parts of it, but kept a portion for himself. 12.The last application, dated 26 April 2026, is filed by the intended interested party (IP), and he seeks the following orders: -a.Spent.b.That this honourable court be pleased to join the applicant herein, namely Nzili King'ola, as an interested party in this suit.c.That upon joinder, the applicant be granted leave to participate in these proceedings and file all necessary pleadings, affidavits and documents.d.That the costs of this application be in the cause. 13.The motion is primarily supported by several grounds and by the supporting affidavit of the intended IP, sworn on 26 April 2026, and, concisely, he states that he is a bona fide purchaser for value, having bought part of the suit property from the late 3rd plaintiff in 2017. He claims to have acquired legal and beneficial interests in the land and has maintained possession since then. He informs the court that he was not originally included in the court proceedings despite his direct interest in the property. He argues that joining him in the case is essential, as any decisions made will significantly affect his rights, and failure to join him could cause him serious and irreparable harm. Lastly, his participation is necessary for the court to make a comprehensive and fair determination regarding the suit property. 14.In accordance with the court’s directive, various applications have been thoroughly argued through written submissions submitted by counsel representing the respective parties. The submissions on behalf of the 1st and 3rd plaintiffs were filed by Ms. B.M. Mung’ata & Co. Advocates; those on behalf of the defendants were filed by Ms. Chege & Sang Co. Advocates LLP; and the submissions pertaining to the intended IP were filed by Ms. B.T. Atancha & Co. Advocates. 15.Several issues are raised by these submissions. Accordingly, having considered the motions, grounds, affidavits together with annexures, rival submissions, the provisions of law, and the judicial precedents, the following issues arise for determination:(a)whether the orders of 5 March 2025 should be set aside and the suit reinstated;(b)whether the intended IP should be joined as a party to these proceedings;(c)whether the legal administrators of the deceased 3rd plaintiff should be allowed to substitute him in these proceedings; and(d)whether, upon granting of prayers (a), (b), and (c), the parties should be allowed to file their documents and/or amend them as necessary.Thus, we will now proceed to analyse and determine these issues in succession. a. Whether the orders of 5 March 2025 should be set aside and the suit reinstated 16.This issue is addressed by both the 1st and 3rd plaintiffs and the defendants in their submissions. In resolving this matter, the court will examine the relevant legal provisions authorising the reinstatement of dismissed suits and review established jurisprudence on the issue. Concerning the law, and as correctly referenced by the parties in their submissions, the relevant statutory provision is found in our Order 12, Rule 7 of the Civil Procedure Rules, which stipulates that where a judgment has been entered, or the suit dismissed, the court, upon application, may set aside or vary the judgment or order on such terms as are just. Consequently, the motion is properly presented before this court. 17.The jurisprudence that guides this court in the exercise of judicious discretion in dealing with such motions is settled, and the decision of Shah v Mbogo and Another [1967] EA 116 Limited [2020] eKLR, which was cited with approval in the case of John Waweru Njenga & 5 others v Motor Botique, detailed the guiding principles as follows: -“This discretion (to set aside ex parte Court decisions) 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.” 18.These criterion is also restated in the long-cited decision of Ivita v Kyumbu [1975] KEHC 4 (KLR), whereby in this case, the court held that the tests to be applied are whether the delay is prolonged and inexcusable, and, if it is, can justice be done despite such delay. In this decision, the court stated thus: -“So the test is whether the delay is prolonged and inexcusable, and, if it is, can justice be done despite such delay. Justice is justice to both the plaintiff and defendant; so both parties to the suit must be considered and the position of the judge too, because it is no easy task for the documents, and, or witnesses may be missing and evidence is weak due to the disappearance of human memory resulting from lapse of time. The defendant must however satisfy the court that he will be prejudiced by the delay or even that the plaintiff will be prejudiced. He must show that justice will not be done in the case due to the prolonged delay on the part of the plaintiff before the court will exercise its discretion in his favour and dismiss the action for want of prosecution. Thus, even if delay is prolonged if the court is satisfied with the plaintiff’s excuse for the delay and that justice can still be done to the parties notwithstanding 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. Where the defendant satisfies the court that there has been prolonged delay and the plaintiff does not give sufficient reason for the delay the court will presume that the delay is not only prolonged but it is also inexcusable and in such case the suit may be dismissed.” 19.Since the 1st and 3rd plaintiffs are the ones who have made the assertions as to why the exercise of discretion should be in their favour, the onus was on them to substantiate those assertions. However, it is necessary for the court to highlight the circumstances that led to the dismissal of the plaintiffs' case on 5 March 2025. 20.This particular hearing date was taken ex parte by the plaintiffs’ then counsel. On that day, Miss Koki, for the plaintiffs, presented various objections as to why the matter could not proceed, claiming that the defence and counterclaim had not been properly served upon her firm, that they had been improperly amended and that pretrial directions had not been undertaken. However, the receipt stamp from her law firm confirmed that the defence and counterclaim had been duly served, that pre-trial directions had been issued, and that only one defence and counterclaim was on record. 21.When the matter was called for hearing at 11:24 am, Miss Koki stated that, owing to the absence of her witnesses, the court could proceed with the defendant's case. She further informed the court that the plaintiffs were aware of the hearing date but were absent despite notice. She requested that the court adjourn to the following day at 2:00 pm, a request the court declined. Miss Koki then sought a brief indulgence of five minutes, which the court granted. Subsequently, she informed the court that she was unable to secure the attendance of her witnesses. Hence, resulting in the dismissal of the plaintiffs' case in accordance with Order 12 Rule 3 of the Civil Procedure Rules. 22.Now, the 1st plaintiff contends that Miss Koki mistakenly failed to inform him of the hearing date and that it is only upon perusal of this file by his current law firm that he discovered the impugned orders of 5 March 2025. When dealing with issues of alleged mistake by counsel, the apex court in Gaciani & 11 others v Kimanga & another [2023] KESC 23 (KLR) stated as follows: -“Whereas mistakes of an advocate ought not to be visited upon a litigant, there must be cogent and credible evidence, the applicants have not demonstrated any efforts or due diligence, through evidence or correspondence of the follow up with the advocates or to pursue their rights as we found in George Kang’ethe Waruhiu v Esther Nyamweru Munene & another Civil Application No 18 of 2020 [2021] eKLR. It is not enough for a party to simply blame the advocates on record for all manner of transgressions. Courts have always emphasized that parties have a responsibility to show interest in and to follow up on their cases even when they are represented by counsel, and it does not matter whether the party is literate or not.” 23.As in this case, the 1st plaintiff has failed to present cogent and credible evidence demonstrating that Miss Koki committed a mistake. It is on record that his then counsel informed the court that her clients were aware of the hearing date but failed to attend. This assertion has not been rebutted by the plaintiffs’ tangible evidence. Additionally, from the record, even after the hearing date, the 1st plaintiff participated in these proceedings, swore an affidavit on 28 May 2025, and instructed his then counsel to lodge a notice of appeal dated 10 February 2026. Contrary to his claims, these actions indicate he was aware of the proceedings, and the court finds his assertion of unawareness of the hearing date far-fetched. The case was his, not his counsel’s; he was responsible for following up on his case. If he did so, he should have provided the court with evidence of such correspondence, whether by letter, email, or other electronic means, which he has not done. 24.Moreover, the motion was filed with undue delay, and the court finds unpersuasive the assertion that the 1st plaintiff only became aware of the dismissal after his current counsel reviewed the court record. This is because the specific date of the perusal is not provided, and it is unclear whether the perusal was conducted via the CTS portal or by perusing the physical file. Additionally, there is no evidence to demonstrate that his counsel submitted a formal request for access to the file in accordance with the procedures prescribed in the High Court Registry Operation Manual. 25.To this court’s mind, the motions by the 1st plaintiff and by the 3rd plaintiff’s legal representatives, with the latter claiming ignorance of this case for the past ten years and subsequently mysteriously learning of the suit without substantiation of how they knew of the suit, are mere afterthoughts prompted by the court’s decision to halt their alleged illegal dealings with the suit property during the pendency of this case. The plaintiffs’ absence from court during hearings constitutes a breach of Article 159(b) of the Constitution, which mandates the expeditious disposal of judicial matters, and, in this court’s view, such intentional absence disqualifies them from invoking protection under Article 50 of the Constitution. 26.The record shows that this matter has been in court for 10 years; additionally, the 4th defendant, who has testified, is over 90 years old and has had difficulty recalling pertinent documents. Given these circumstances, the reinstatement of the case would undoubtedly prejudice the defendants. As to the alleged new evidence, this court finds that the issue of the 1st defendant’s records was already raised in the plaint. In this court’s opinion, discovery of new evidence would form the basis for a review of the court’s decision or a recall of a witness, not the reinstatement of a dismissed suit. Consequently, this court finds that the legal threshold for setting aside orders dismissing the plaintiffs’ case and reinstating the suit has not been met. b. Whether the intended IP should be joined as a party to these proceedings. 27.Order 1 Rule 10(2) of the Civil Procedure Rules (CPR) has predominantly been construed to mean that the party who ought to be joined or added to civil proceedings, whether as a defendant, plaintiff, or interested party, whose presence in the proceedings would be essential to assist the court in determining the matter effectively and comprehensively, should be incorporated into the proceedings. This proviso states as follows: -“The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added.” 28.The Black’s Law Dictionary, 11th Edn, page 1351, defines an interested party in the following terms:“A party who has a recognizable stake (and therefore standing) in a matter.” 29.The meaning of this definition was reiterated in the Supreme Court of Kenya's decision in Trusted Society of Human Rights Alliance v Matemo & 5 others [2014] KESC 32 (KLR), as follows:“3.An interested party was one who had a stake in the proceedings, though they were not initially a party to the cause. Such a person felt that their interest would not be well articulated unless they personally appeared in the proceedings, and championed their cause.” 30.When considering a motion for joinder, the court exercises prudent discretion rooted in law and reason. Therefore, this court adopts the guiding principles established in Muruatetu & another v Republic; Kenya National Commission on Human Rights & 2 others (Interested Parties); Death Penalty Project (Intended Amicus Curiae) [2016] KESC 12 (KLR), thus: -“37.From the foregoing legal provisions, and from the case law, the following elements emerge as applicable where a party seeks to be enjoined in proceedings as an interested party: One must move the Court by way of a formal application. Enjoinment is not as of right, but is at the discretion of the Court; hence, sufficient grounds must be laid before the Court, on the basis of the following elements:The personal interest or stake that the party has in the matter must be set out in the application. The interest must be clearly identifiable and must be proximate enough, to stand apart from anything that is merely peripheral.The prejudice to be suffered by the intended interested party in case of non-joinder, must also be demonstrated to the satisfaction of the Court. It must also be clearly outlined and not something remote.Lastly, a party must, in its application, set out the case and/or submissions it intends to make before the Court, and demonstrate the relevance of those submissions. It should also demonstrate that these submissions are not merely a replication of what the other parties will be making before the Court.” 31.In this matter, the defendants and the intended IP are in opposition. The defendants contend that the motion fails to meet the requisite legal threshold, whereas the intended IP party maintains that it has met that threshold. Hence, having scrutinised the annexures supporting the motion, this court concurs with the defendants and determines that the intended IP’s joinder to this suit fails to meet the applicable legal threshold, as the documents do not substantiate his proprietary interest in the suit property. Although the intended IP party claims to have entered into a sale agreement with the 3rd plaintiff concerning the suit property in 2017, the agreement he has produced is unrelated to him; specifically, the agreement dated 13 March 2004 is between the 3rd plaintiff and Benson Nzivo William. 32.The other document presented to the court, dated 13 January 2014, is included in the plaintiff's list of documents dated 27 January 2016 and consists of a letter authored by Mutunga Musyoki and has no nexus with the intended IP. Suffice it to say, no tangible evidence demonstrating that the intended IP has a stake in the suit property has been tabled before this court. Accordingly, this court finds that the criteria for the joinder of the intended IP have not been met. c. Whether the legal administrators of the deceased 3rd plaintiff should be allowed to substitute him in these proceedings 33.In addressing this issue, it is relevant to highlight the applicable law and the prevailing jurisprudence, and to establish whether the legal representatives of the 3rd deceased plaintiff have met the legal threshold. To start us off, as pointed out in the motion, the relevant provision of law is found in Order 24 of the Civil Procedure Rules (CPR), and the pertinent Rules are:Order 24 Rule 3: -“(1)Where one of two or more plaintiffs dies and the cause of action does not survive or continue to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the cause of action survives or continues, the court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.(2)Where within one year no application is made under subrule (1), the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the court may award to him the costs which he may have incurred in defending the suit to be recovered from the estate of the deceased plaintiff:Provided the court may, for good reason on application, extend the time.”And Order 24, Rule 7: -“(1)Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action.(2)The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the trustee or official receiver in the case of a bankrupt plaintiff may apply for an order to revive a suit which has abated or to set aside an order of dismissal; and, if it is proved that he was prevented by any sufficient cause from continuing the suit, the court shall revive the suit or set aside such dismissal upon such terms as to costs or otherwise as it thinks fit.” 34.In examining these provisions of the law in relation to the reliefs sought in the motion, it is evident that Agnes Mukulu Mutuku and Serah Mwikali Mutuku, being the legal representatives of the deceased 3rd plaintiff, were appointed by a limited grant issued on 23 April 2026, by the Chief Magistrate’s Court in Machakos, following the deceased’s death on 29 October 2019. Accordingly, they possess the legal capacity to file the motion. Having passed away over six years ago and in agreement with the defendants, the suit by the 3rd plaintiff abated around 30 October 2020. It has been stated that the cause of action survived the deceased. 35.The legal representatives have provided reasons for the delay as anticipated by Order 24, Rule 7 of the CPR. Nonetheless, they neither applied for an extension of time as required by Order 24, Rule 3 of the CPR, nor sought revival of the abated suit as anticipated by Order 24, Rule 7 (2) of the CPR. In similar circumstances, where a party fails to comply with the legal framework of Order 24 of the CPR, the Court of Appeal in Rebecca Mijide Mungole & another v Kenya Power & Lighting Company Ltd & 2 others [2017] KECA 544 (KLR) held as follows:“…it is imperative and we may add, logical, where the legal representative is not so joined within one year, that an application be made for extension of time to apply for joinder of the deceased plaintiff’s legal representative. It is only after the time has been extended that the legal representative can have capacity to apply to be made a party. Order 24 must be construed by reading it as a whole and the sequence in which it is framed must be followed without short circuiting it. The proviso to rule 3(2) to the effect that the court may, for good reason on application, extend the time goes to show that without time being extended, no application for revival or joinder can be made. It is the effluxion of time that causes the suit to abate. It is that time that must, first be extended. Once time has been enlarged, only then can the legal representative bring an application to be joined in the proceedings. Again it is only after the legal representative has been joined as a party that he can apply for the revival of the action. In our view there is nothing objectionable to making an omnibus application for all the three prayers. But it is incompetent to seek joinder or revival when the prayer for more time to apply has not been granted. The learned Judge, supported by the authority of Joseph Gachuhi Muthanji (supra) was therefore right in dealing with that aspect of the application in the manner he did.” 36.Ultimately, guided by the law and judicial precedent, this court need not say more and, in agreement with the defendant’s counsel, finds the motion incompetent. Following this, the prayer for reinstatement, which this court had earlier considered on the merits, cannot have legs to stand on. 37.In the end, for the aforementioned reasons and findings, a determination of issue (d) is deemed unnecessary. The applications dated 23 March 2026, 21 April 2026, and 26 April 2026 are all found not to be merited. As all these applications are preliminary, costs shall be in the cause.It is so ordered. DELIVERED AND DATED AT MACHAKOS THIS 9TH DAY OF JUNE, 2026.HON. A. Y. KOROSSJUDGE09.06.2026Ruling delivered virtually through Microsoft Teams Video Conferencing PlatformIn the presence of;Ms. Kanja Court Assistant.Miss Mutuku for plaintiffs/applicants.No appearance for other parties.