https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3741

Kinyanjui v Board of Trustees NSSf (Environment and Land Case Civil Suit 71 of 2013) [2026] KEELC 3741 (KLR) (18 June 2026) (Ruling) Neutral citation: [2026] KEELC 3741 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Case Civil Suit 71 of 2013 MN Kullow, J June 18, 2026 Between Lee Mwathi Kinyanjui Plaintiff and Board of Trustees NSSF Respondent Ruling Introduction 1.In the Notice of Motion application dated 7th March 2025, the Applicant sought the following orders:a.That the dismissal orders for want of prosecution and all consequential orders be set aside forthwith and the suit be reinstated forthwith for hearing and final determination.b.That upon grant of prayer (1) above the honourable court be pleased to grant a pre-trial direction forthwith.c.That the defendant is ready and willing and pay reasonable away costs for the application. 2.The Application was premised on the grounds that Applicant had sort for different representation by counsel and only became aware of the dismissal when served with a notice to show cause. 3.The Respondent opposed the application by filing a replying affidavit sworn by Kinyanjui Theuri. He deponed that the Applicant had not prosecuted the matter since its filing in the year 2013. That at the inception of the suit, the applicant filed an application which was dismissed. The Applicant filed an appeal in the year 2014 but did not pursue the same appeal.He deponed that based on the lack of interest to prosecute, the Defendant/Respondent filed an application dated 17th February 2016 to dismiss the mater which matter was dismissed on the 20th June 2018.The Respondent deponed that after the said dismissal, they filed a bill of costs whereby they obtained a certificate of taxation indicating that all these proceedings were done with the knowledge of the Applicant’s advocates.That subsequently the Respondent filed a notice to show cause why the applicant should not be committed to civil jail for failing to file the decretal sum which notice prompted this application.The application was canvassed by way of written submissions. The Applicant has not filed any submissions as at the time of drafting this ruling, whereas the Respondent has filed submissions dated 6th May 2026. Respondent’s submissions 4.The Respondent reiterated the contents in its replying affidavit and further indicated that the factual averments in the replying affidavit had not been controverted by the Applicant.Counsel further argued that the Applicant had not provided any reasons for the non-prosecution of the suit property and the inordinate delay in filing the application for reinstatement of suit that counsel for the Applicant never logged in in court on the date of 9th June 2025 and further the court was satisfied of non-attendance before dismissing the suit. Counsel submitted that the Applicant was indolent in prosecuting the matter and that equity does not favor the indolent. That the Applicant should have followed up with his advocate on the status of his matter relying on the case of Violet Wanjiru Kanyiri Vs Kuku Foods Limited [2022] eKLR, the court relied on the case of Alice Mumbi Nyanga Vs Danson Chege Nyanga & Another [2006] Eklr.Counsel further submitted that re-instatement of the suit will prejudice the Respondent as the inordinate delay will not favour the Respondents. Analysis and Determination 5.Having looked at application, the replying affidavit and Submission the only issue arising for determination is; Whether the application to reinstate suit is merited 6.Whether to reinstate a dismissed suit would call for exercise of discretion in line with Articles 50 and 159 of the Constitution, and the oxygen principle in Sections 1, 1A and 3A of the Civil Procedure Act, Cap 21, Laws of Kenya. These were discussed in John Nahashon Mwangi Vs Kenya Finance Bank Limited (in Liquidation) [2015] eKLR [2015] KEHC 6789 (KLR) (Gikonyo, J), where it was stated that the fundamental principles of justice are enshrined in Article 159 of the Constitution, coupled with Article 50, with respect to the right to be heard, and to serve substantive justice to all. It was underscored that those principles ought to be factored when considering reinstatement of dismissed suits, bearing in mind that dismissal of suits is of grave effect. 7.Having perused the court, the chronology of events is as follows; the suit had been filed on 16th January 2013. No action had been taken on the matter, and the same was dismissed in on 20th June 2018 as evidenced with the order annexed to Respondent’s replying affidavit. Having been dismissed, the Respondent then filed for a party to party bill of costs and was issued with a certificate of taxation dated 3rd December 2020. The Applicant was then required to settle the said decretal amount which he has not, prompting the Respondents to serve a notice to show cause why he should not be committed to civil jail, that has led to the filing of the instant application. 8.The Applicants appear to blame their Advocates, hence their plea that the sins of the Advocates ought not be visited on them. However, courts have held before that a suit filed in a court belongs to a litigant and it is his duty to follow up on the same, such case law includes the case of Duale Mary Anne Gurre Vs Amina Mohamed Mahmood & another [2014] eKLR. 9.The case was in limbo between when it was filed, and 20th June 2018 when it was dismissed. The Applicants have provided no proof of the efforts they made to ensure that their Advocates progressed the matter, after filing it. I do hold that the Applicant was indolent and had lost interest in prosecuting the matter.I am not persuaded, therefore, that this case warrants for the orders to reinstate the suit. Final dispositionThe upshot of the matter is to make the following orders;-i.The Notice of Motion Application dated 7th March 2025 lacks merit and is hereby dismissed.ii.The costs shall be to the Respondent.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 18TH DAY OF JUNE 2026.MOHAMMED N. KULLOWJUDGERuling delivered in the presence of: -Mr. Mabeya...............for the Plaintiff/ApplicantN/A...................for the RespondentPhilomena W...............Court Assistant