https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4429

REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND AT NAIROBI ELC L PETITION NO. E084 OF 2024 KENPOL SERVICES LIMITED …………….…………….. PETITIONER VERSUS THE MINISTRY OF TRANSPORT, INFRASTRUCTURE, HOUSING & URBAN DEVELOPMENT ……………………….…… 1ST RESPONDENT THE CHIEF LAND REGISTRAR …………….…… 2ND RESPONDENT THE ATTORNEY GENERAL …………………….. … 3RD RESPONDENT THE NATIONAL LAND COMMISSION ………... 4TH RESPONDENT AND KENYA METEORELOGICAL DEPARTMENT ……………………………….……. INTERESTED PARTY RULING ELC L PETITION NO. E084 OF 2024 Ruling Page 1 of 14 1. What is before the Court for determination is the Petitioner’s Notice of Motion application dated 8th December 2025, where it seeks the following orders: a) Spent. b) Spent. c) That an order be and is hereby issued reinstating the Petition dated 7th October 2024 filed herewith. d) That the Court be pleased to make any other order that meets the ends of justice. e) That there be no orders as to costs. 2. The application is premised on grounds on its face and on the supporting affidavit of Anthony Moses Njehu, who describes himself as a donee of the Petitioner’s Power of Attorney to deal with the suit property, LR No. 24893. He avers that this suit was dismissed on 12th November 2025 for non- ELC L PETITION NO. E084 OF 2024 Ruling Page 2 of 14 attendance, which he claims was an inadvertent mistake by Counsel who misdiarised the mention for 13th November 2025 instead of 12th November 2025. 3. He avers that while the Petitioner’s Counsel learnt of the mistake immediately, and required him to attend his office to record and sign the instant replying affidavit, he was taken ill with cancer and was too weak to do so. Further, that when he regained his strength and was ready to record and sign the affidavit, his advocate was also taken ill, as he was battling a back injury and had taken a seven (7) days’ bed rest thus, the unfortunate events delayed the filing of the instant application. 4. He avers that no prejudice will be suffered if the reliefs sought are granted while the Petitioner will be highly prejudiced if the application is declined. He urges the Court not to visit the mistake of Counsel upon the Petitioner. Response ELC L PETITION NO. E084 OF 2024 Ruling Page 3 of 14 5. The 4th Respondent filed Grounds of Opposition. It avers that the Petitioner has instituted parallel proceedings in ELC Case No. E303 of 2025 - Kenpol Services Limited v Ministry of Lands, Housing and Urban Planning & 6 Others, which concerns the subject of the instant suit and raises similar issues, thus, the application offends the doctrine of sub judice as provided under Section 6 of the Civil Procedure Act. Further, that the Petitioner failed to disclose the existence of the said suit and demonstrate sufficient cause to warrant the exercise of this Court’s discretion in its favour. It also contends that the Petitioner was indolent in prosecuting its case and that reinstatement would occasion prejudice to the Respondents by subjecting them to duplicative proceedings and the risk of conflicting decisions. 6. The Petitioner filed a further affidavit sworn by Anthony Moses Njehu ELC L PETITION NO. E084 OF 2024 Ruling Page 4 of 14 in response. He avers that the allegation of concealment of material facts from the Court is misleading, as he became aware of the existence of ELC No. E303 OF 2025 on 12th December 2025 and immediately filed an application for joinder. 7. The 1st to 3rd Respondents and the Interested Party did not file responses. 8. The application was canvassed by way of written submissions. Submissions 9. The Petitioner insists that ELC Case No. E303 of 2025 was filed without the knowledge of Anthony Moses Njehu, the donee of the Power of Attorney to deal with the suit land. He concedes that the two suits concern the same subject matter and that consistent with the overriding objective under Sections 1A and 1B of the Civil Procedure Act, they ought to be consolidated not dismissed. ELC L PETITION NO. E084 OF 2024 Ruling Page 5 of 14 10. It also submits that it is settled law that mistake of Counsel should not be visited upon a client where the client is blameless and the mistake is excusable. To this end, it submits that the impugned mistake was inadvertent, and not deliberate, and that it acted promptly once the mistake was discovered, subject to delays caused by the illness of both the deponent and Counsel. Further, that the Respondents have not demonstrated any prejudice that cannot be compensated by costs while, if the Petition is not reinstated, it stands to lose its constitutional right to be heard under Article 50(1) of the Constitution and its right to property under Article 40(1). 11. On its part, the 4th Respondent insists that the instant suit is sub judice ELC Case No. E303 of 2025 as issues in both proceedings revolve around ownership, interests, and rights over the same property, and the reliefs sought are substantially similar. Relying on the case of Kenya National Commission on Human Rights v Attorney General; ELC L PETITION NO. E084 OF 2024 Ruling Page 6 of 14 Independent Electoral & Boundaries Commission & 16 Others (Interested Parties) [2020] eKLR, and Thiba Min. Hydro Co. Ltd v Josphat Karu Ndwiga [2015] eKLR, it urges this Court to stay this suit or dismiss it. 12. It also submits that the Petitioner’s conduct of filing of multiple suits over the same subject matter amounts to forum shopping and constitutes abuse of court process. Further, that the Petitioner’s conduct, including the institution of parallel proceedings, demonstrates a lack of diligence and good faith and that non-disclosure of material facts disentitles it from equitable remedies. It also submits that equity aids the vigilant, not the indolent. 13. To buttress its averments, it relied on the following decisions: Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 Others [2009] eKLR; Ivita v Kyumbu [1984] KLR 441; Fran Investments Limited v G4S Security Services (K) Limited (2015) eKLR, and ELC L PETITION NO. E084 OF 2024 Ruling Page 7 of 14 Uhuru Highway Development Ltd v Central Bank of Kenya & 2 Others [1996] eKLR. Analysis and Determination 14. Having considered the instant Notice of Motion application including the respective affidavits, Grounds of Opposition and rivalling submissions, the only issue for determination is whether the Petitioner has demonstrated sufficient grounds to warrant this Court’s discretion to reinstate the instant suit. 15. This Court dismissed the instant suit on 12th November 2o25, on the basis of the Petitioner’s non-attendance. The Petitioner now seeks to set aside the said dismissal orders. It attributes the non-attendance to Counsel's inadvertent misdiarisation of the mention date, stating that Counsel mistakenly diarised the matter for 13th November 2025 instead of 12th November 2025. It also attributes delay in filing the instant application to illness of both its Counsel and agent with authority to represent it in the matter. Ruling ELC L PETITION NO. E084 OF 2024 Page 8 of 14 16. On its part, the 4th Respondent opposes the application on the basis that the Petitioner also filed ELC Case No. E303 of 2025, which concerns the same parcel of land and substantially similar issues, thus, reinstating the Petition would offend the doctrine of sub judice under Section 6 of the Civil Procedure Act, and amounts to forum shopping. 17. The Court of Appeal stated as follows in CMC Holdings Ltd vs James Mumo Nzioka CMC Holding Limited v Nzioki [2004] KECA 143 (KLR): “The discretion that a court of law has, in deciding whether or not to set aside ex-parte order such as before us was meant to ensure that a litigant does not suffer injustice or hardship as a result of among other things an excusable mistake or error. It would in our mind not be a proper use of such discretion if the court turns its back to a litigant who clearly demonstrates such an excusable mistake, inadvertence, accident or error” ELC L PETITION NO. E084 OF 2024 Ruling Page 9 of 14 18. The Court of Appeal also stated as follows in Tabuche v Tinga & 2 others (Civil Appeal E003 of 2022) [2024] KECA 551 (KLR) (24 May 2024) (Judgment): “We take to mind the High Court decisions in Habo Agencies Limited v Wilfred Odhiambo Musingo [2015] eKLR; and Tana and Athi Rivers Development Authority v Jeremiah Kimigho Mwakio & 3 others [2015] eKLR where the court correctly held that it is not enough for a party in litigation to simply blame the advocate on record for all manner of transgressions in the conduct of the litigation and that, while the mistake of counsel is excusable, if it is accompanied by a litigant’s carelessness and inactivity, then the refusal by the court to exercise discretion in favour of such a party cannot be impugned.” 19. In the case of Shah v Mbogo and Another [1967] EA 116 it was held that: “This discretion is intended to be exercised to avoid injustice or hardship resulting from ELC L PETITION NO. E084 OF 2024 Ruling Page 10 of 14 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.” 20. Further, in the case of Wachira Karani v Bildad Wachira [2016] eKLR Mativo J (as he then was) held that: “Sufficient cause is thus the cause for which the defendant could not be blamed for his absence. Sufficient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a straight-jacket formula of universal application. Thus, the defendant must demonstrate that he was prevented from attending court by a sufficient cause...” 21. It is trite that setting aside of an Order dismissing a suit for non attendance is discretionary and the Court is expected to consider sufficient cause proffered by the Applicant, before proceeding to do so. I note the Petitioner indeed admitted ELC L PETITION NO. E084 OF 2024 Ruling Page 11 of 14 that there is a pending civil suit whose fulcrum revolves around the suit property herein. 22. From my analysis above, including the Court record, I opine that the Petitioner, including its erstwhile Advocate, intentionally failed to attend Court. In my view, the Petitioner has failed to provide plausible reasons to demonstrate sufficient cause why together with its Advocate, it failed to attend court for mention and now seek to set aside the orders claiming it will suffer irreparable harm. 23. It is my considered view that since there is already a pending suit involving the same suit land, there is no sufficient cause warranting the setting aside of the impugned Order and blaming an erstwhile Counsel cannot be a cure for all ills as cases belong to the litigants and not their Counsels. Insofar as the Court has a discretion to set aside the impugned Order, but having perused the Petition noting that the Petitioner seeks for validation of its title and compensation, I ELC L PETITION NO. E084 OF 2024 Ruling Page 12 of 14 opine that these are issues which will be best dealt with in the aforementioned civil claim. Further, at this juncture, I find that reinstating this suit when there is pending suit dealing with the same subject matter would render it sub judice. To my mind, the Petitioner’s conduct of instituting parallel proceedings, demonstrates a lack of good faith and that non-disclosure of material facts disentitles it from equitable remedies. 24. In the circumstances, while associating myself with the decisions cited, I find the Notice of Motion application dated the 8th December, 2025 unmerited and will proceed to dismiss it. 25. Each party to bear their own costs. DATED SIGNED AND DELIVERED AT NAIROBI THIS 15TH DAY OF JULY, 2026 CHRISTINE OCHIENG JUDGE ELC L PETITION NO. E084 OF 2024 Ruling Page 13 of 14 In the presence of: Ms Mwanyika for 4th Respondent Court Assistant: Vena ELC L PETITION NO. E084 OF 2024 Ruling Page 14 of 14