Kurauka & another v Irungu & 3 others (Environment and Land Case Civil Suit E274 of 2025) [2026] KEELC 4728 (KLR) (21 July 2026) (Ruling)

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT THIKA** **ELC CIVIL SUIT CASE NO. E274 OF 2025** **JOSEPH KATHIAI KURAUKA………………………..…..……….1ST PLAINTIFF** **FAITH NJERU……………………………………..…….………..2ND PLAINTIFF** **VERSUS** **EVER WAMBUI IRUNGU…………………………..………….1ST DEFENDANT** **MESHACK MUTEMBEI…………………………….………….2ND DEFENDANT** **THE NATIONAL ENVIRONMENT MANAGEMENT** **AUTHORITY (NEMA)…………………………………..…….3RD DEFENDANT** **THE NATIONAL AGENCY AUTHORITY FOR THE** **CAMPAIGN AGAINST DRUG ABUSE (NACADA)…..……..4TH DEFENDANT** **RULING** 1. I am writing a Ruling for the Notice of Motion dated 05/04/2026 which is brought under Order 40 Rule 7 and 51 Rule (1) of the Civil Procedure Rules, Sections 3A and 63 (e) of the Civil Procedure Act and all other enabling Provisions of the law seeking the following orders: 2. Spent. 3. **THAT** the honourable Court be pleased to review its orders of the 4-02-2026 owing to the urgency and direct that; 4. The Applicant/1st Defendant and his members to be granted access to the suit premises to wit; Ruiru/Kiu Block 2/2802 House No 303 for purposes of attending to the patients locked therein. 5. The Ex parte orders issued on the 28-01-2026 be stayed pending the hearing and determination of the application dated 02-02-2026. 6. **THAT** any other relevant relief this honourable Court may deem fit and just to grant in the circumstances. 7. **THAT** cost of this application be in the cause. 8. The Application is supported by the Affidavit sworn by Meshack Mutembei the 2nd Defendant/Applicant sworn on 5/02/2026. In this Supporting Affidavit, Meshack Mutembei, the 2nd Defendant/Applicant, states that the Court's February 4, 2026, directive requiring service, submission exchanges, and a return date of 23/03/2026, as shown in the annexed Court order marked **“MM-l”**, creates a dangerously long delay. 9. He explains that due to earlier orders from 28/01/2026, he and his staff are locked out of the suit premises by Plaintiffs who have posted security at the gate, an issue supported by the annexed photographs marked **“MM-2”**. Consequently, eleven (11) patients are currently trapped inside without access to basic needs like food or medical attention. Warning that the patients' health will deteriorate further without immediate intervention, the Applicant requests the Court to revise its directions and grant him access to the facility pending the formal hearing of the application dated 2/02/2026. 10. The Application is opposed only by the 1st and 2nd Plaintiffs who filed a Replying Affidavit sworn on 20/03/2026 by Joseph Kathiai Kurauka. The 1st Respondent, deposes on behalf of the 2nd Plaintiff oppose the 2nd Defendant’s application. He asserts that the Kahawa Sukari facility is located in Kiambu County and only began operating around April 2025 with the consent of the 1st Defendant, disputing the Applicant's claim of continuous operation since 2017. The Plaintiff contends that the Applicant’s annexed Certificates of Accreditation marked **“MM1”** actually belong to a separate, pre-existing facility situated in Thome, Nairobi County. 11. To substantiate this distinction, the Plaintiff attaches website extracts marked **“JKK 1”** showing the Nairobi branch. He further notes that a multi-agency regulatory inspection was conducted at the Kahawa Sukari site on 20/02/2026, in the presence of legal, administrative, and public health officials, as documented by an attached photograph marked **“JKK 2”** showing the inspection team. According to the Plaintiff, representatives from NACADA, the Kenya Medical Practitioners and Dentists Council, and the Ruiru Sub-County Public Health Department all confirmed at the scene that the Kahawa Sukari center lacked the necessary independent approvals and accreditation required to operate a separate branch. 12. He further deposes that a regulatory letter dated 15/01/2026, did not grant the facility a green light to continue operations, and accuses the Applicant of defiantly running the center in blatant contempt of a 29/01/2026, Court order that suspended all activities. Addressing the Applicant’s previous absence from Court, the Plaintiff points out that the original application was served on 6/01/2026, giving the Applicant nearly a month to respond or appear personally for the inter-partes hearing on 28/01/2026. 13. He strongly challenges the Applicant's explanation regarding legal representation, stating that a search of the Law Society of Kenya database reveals no registered Advocate by the name of James Kiptui, supporting this claim with database search extracts marked **“JKK 3”**. The Plaintiff argues that the Applicant was simply indolent and that any alleged mistake by Counsel should not shield him from the consequences of his inaction, especially since he has the option to transfer the remaining patients to his accredited Thome facility. 14. The Plaintiff denies that the Court's suspension order prematurely determined the main suit, emphasizing that it was a lawful directive meant to preserve the administration of justice pending a final trial. He argues that the Applicant has failed to prove any substantial or irreversible loss and has instead approached the Court with unclean hands. The Plaintiff exposes what he characterizes as an attempt at forum shopping, revealing that an injunction application was recently filed by a third party in the lower Court under **Ruiru MCELC E041 of 2026 (Mary Nkoroi vs NACADA)** without disclosing the ongoing High Court dispute, attaching copies of the lower Court application and interim order marked **“JKK 4”** and **“JKK 5”** respectively. 15. Dismissing the Applicant's Motion as a frivolous and vexatious abuse of the judicial process designed solely to delay proceedings, the Plaintiff prays that the Court deny the requests and uphold the active suspension orders. 16. In response to the Replying Affidavit of the 1st Plaintiff, the 2nd Defendant/Applicant, filed a Supplementary Affidavit sworn by Meshack Mutembei on 20/04/2026. He responds to the Plaintiff's Replying Affidavit dated 20/03/2026, by confirming that the New Life Rehabilitation Centre has operated lawfully since 2017, having relocated to the suit property from Thome in April 2025 with the express permission of the 1st Plaintiff, and notes that no estate by-laws prohibit its operations. He vehemently denies the allegation that a multi-agency regulatory inspection on 20/02/2026, proved the facility lacked proper accreditation, explaining that NACADA had already inspected the facility in November 2025 and given the green light for continued operations while processing their renewal. 17. The official Certificate of Accreditation for 2026 was subsequently issued on 5/12/2025, and made available for collection in April 2026, as evidenced by the attached copy marked **“MM-l”**. He denies operating in defiance of the Court, clarifying that the Plaintiffs' security personnel have completely blocked the entrance, and explains that his previous failure to file a response was due to the professional negligence of his Advocate, James Kipkemei of **Kiptui Kipkemei and Co Advocates**, whose legitimate status as a High Court Advocate is verified by the attached Law Society of Kenya search engine printout marked **“MM-2”**. 18. Furthermore, the Applicant deposes that he was highly diligent in following up on the matter and warns that the current ex-parte orders have prematurely and unfairly determined the entire dispute through the back door. Because the facility has no alternative branches, the active lockout prevents him from generating income, admitting new patients, or caring for those inside, threatening the center with irreversible financial and operational ruin before the legality of his tenancy has even been tried. 19. He confirms that he has patiently complied with the Court's directives while awaiting a variance of the orders, and explicitly disclaims any knowledge of or involvement in the recently filed **Ruiru Civil Suit No MC EL E041 OF 2026.** Stating that the lower Court matter was not instituted by him and has no legal bearing on the current dispute, he requests the Court to have the current orders varied. 20. The Application was canvassed by way of written submissions. My scanning of the Case Tracking System (CTS) reveals that only the Applicant filed their written submissions dated 19/03/2026 as at the time of writing this Ruling. Despite the Court directing that the Respondent was to file their written submissions within 7 days from the date of 23/03/2026. 21. In their submissions, the 2nd Defendant/Applicant moves the Honourable Court to vacate the temporary injunctive orders issued *ex parte* on 28/01/2026, which effectively suspended the operations of his Rehabilitation Centre, and prays for the substitution thereof with an order maintaining the status quo alongside leave to file a formal Replying Affidavit to the Plaintiffs' application dated 22/12/2025. It is contended that the application proceeded unopposed solely due to a mistake of Counsel, who despite being properly instructed and promising to defend the Applicant’s interests, failed to file a response or appear for the *inter partes* hearing. 22. The Applicant deposes that he remained entirely diligent, and that the severe consequences of Counsel's inadvertence should not be visited upon an innocent litigant to drive him from the seat of justice, particularly when the active orders have prematurely and summarily determined the suit by blocking staff from accessing the premises to treat eleven recovering patients. 23. Invoking the fundamental right to a fair trial and access to justice under Articles 48 and 50(1) of the Constitution of Kenya, the Applicant submits that the Court's core duty is to ensure all parties are accorded a reasonable opportunity to ventilate their cases on merit. In moving the Court to exercise its wide judicial discretion to avert hardship, the Applicant relies on the Court of Appeal decision in **Philip Chemwolo & Another v Augustine Kubende [1986] eKLR,** which held that procedural blunders should not strip a party of their right to be heard since Courts exist to determine rights rather than impose discipline. 24. Additionally, he submits that this principle is further buttressed by **Gideon Mose Onchwati v Kenya Oil Co. Ltd & Another [2017] eKLR** (incorporating **Shah v Mbogo** **[1968] EA 93** and **Capt. Philip Ongom v Catherine Nyero Owota) is [2003] 1 UGSC 16),** which cautions that litigants must not bear the burden of an Advocate's default unless they were privy to it. To guide the Court on setting aside orders obtained in default, the Applicant cites **Pithoni Waweru Maina v Thuka Mugiria [1983] KECA 75 (KLR)** as approved in **Yamko Vsdpez Industries Limited v Kalka Flowers Limited [2013] eKLR**, establishing that judicial discretion is unfettered and must be deployed to rectify errors, accidents, or excusable mistakes provided there was no deliberate intention to obstruct the course of justice. 25. On the second issue, the Applicant demonstrates that he possesses a highly arguable and *prima facie* defence on the merits, establishing that the Plaintiffs' application fails to satisfy the threshold for interlocutory injunctions under the celebrated precedent of **Giella v Cassman Brown & Co. Ltd [1973] EA 358.** The Applicant maintains that the facility operates lawfully, is run by qualified professionals, is accredited by regulatory bodies, handles only alcohol and substance addiction cases without presenting a psychiatric safety risk, and is tightly secured with perimeter fencing and surveillance. Citing **Wachira Karani v Bildad Wachira [2016] eKLR,** the Applicant re-emphasizes that a person facing a claim is entitled *ex debito justitiae* to have an adverse determination set aside if natural justice is violated. 26. Furthermore, relying on **Sameer Africa Limited v Aggarwal & Sons Limited [2013] eKLR,** the Applicant asserts that a defence on the merits merely requires raising a triable issue rather than a guarantee of success, a position echoed by Aburili J in **Multiscope Consulting Engineers v University of Nairobi & Another [2014] eKLR.** Applying the principle of proportionality, the Applicant urges the Court to choose the lower risk of injustice by setting aside the *ex parte* orders, thereby allowing the dispute to be determined fairly without causing prejudice to the Respondents, who can be adequately compensated in costs. **Analysis and Determination** 1. Having meticulously evaluated the Affidavits, annexures, and the written submissions filed exclusively by the Applicant, the primary issues for determination are; 2. *Whether the Court should review and vary its orders of 4/02/2026 to grant the Applicant access to the suit premises pending hearing of the application dated 2/02/2026, and* 3. *Whether the ex parte orders of 28/01/2026 ought to be stayed in the interim* 4. The Applicant's case rests substantially on the contention that his erstwhile Advocate's failure to file a response or attend the inter-partes hearing of 28/01/2026 was an excusable mistake of Counsel that ought not to be visited upon an innocent litigant, particularly where the consequence is that eleven patients remain locked within the suit premises without access to food or medical care. 5. The Plaintiffs/Respondents oppose the application, contending that the Applicant was served as early as 6/01/2026 and was therefore accorded ample opportunity to respond, that the claimed Advocate, James Kiptui, is not traceable in the Law Society of Kenya register, and that the Applicant has approached the Court with unclean hands, having proceeded to operate the Kahawa Sukari facility in defiance of the suspension order of 29/01/2026 notwithstanding the findings of the multi-agency inspection of 20/02/2026 that the facility lacked independent accreditation. 6. On the question whether a mistake of Counsel may excuse a litigant's default, our Courts have consistently taken a liberal approach. In **Belinda Murai & Others v Amos Wainaina [1978] eKLR**, the Court of Appeal observed that the sins of Counsel ought not ordinarily to be visited upon a litigant where the litigant is shown to have been diligent and was not personally responsible for the default. This approach is reinforced by the Supreme Court's guidance in **Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & Others [2014] eKLR,** where it was held that the discretion to extend time or set aside orders made in default is to be exercised judicially, taking into account the length of the delay, the reason for it, the degree of prejudice to the other party, and the overriding interest of justice, with the Court cautioning that; ***"Whereas this discretion is wide and unfettered, the Court must weigh it against the need to ensure that there is finality to litigation."*** 1. On the setting aside of ex parte orders generally, the Court of Appeal in **James Kanyiita Nderitu & Another v Marios Philotas Ghikas & Another [2016] eKLR** stated that an ex parte order is by its nature provisional and may be set aside or varied where it is shown that its continued existence would occasion an injustice, particularly where the affected party was not heard on its merits. As to the threshold a Defendant must meet to resist or vary interlocutory orders, the Court of Appeal in **Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR** restated the long-standing principle that an Applicant for interim relief must demonstrate a prima facie case with a probability of success, that he stands to suffer irreparable harm not compensable in damages, and that where the Court is in doubt, it ought to decide the application on a balance of convenience a standard equally instructive in considering whether interim variation should be granted to avert harm pending full hearing. 2. This Court is, however, alive to the weighty matters raised in opposition, namely the unresolved questions as to the authenticity of the Applicant's claimed legal representation, the findings of the multi-agency regulatory inspection touching on accreditation, and the allegation of forum shopping arising from the filing of **Ruiru MCELC E041 of 2026.** These are matters that go to the heart of whether the Applicant has approached this Court with clean hands, and in keeping with the constitutional guarantees of access to justice and fair hearing under Articles 48 and 50(1), the competing risks of injustice must be carefully weighed, bearing in mind, as the Court of Appeal cautioned in **Nguruman Limited** (above), that the existence of a prima facie case alone does not automatically entitle a party to relief where the balance of convenience favours otherwise. 3. Balancing the imperative that no party be condemned unheard against the urgent and undisputed humanitarian concern that eleven patients remain locked within the suit premises without access to food, medical attention, or care, this Court finds that the lower risk of injustice lies in granting limited interim access to the Applicant and his staff to attend to the patients, without thereby pronouncing on the substantive merits of either party's claim to lawful occupation or accreditation, pending the hearing and determination of the application dated 2/02/2026, which shall proceed on its merits with each party at liberty to be heard fully thereon. 4. Consequently, 5. ***This Court sets aside the ex-parte orders of 28/01/2026 and orders that a status quo be maintained allowing staff access to the premises.*** 6. ***Leave is granted to the Applicant to file his formal Replying Affidavit to the main injunction application within seven (7) days from the date hereof and serve, failure to which the Court will still dispose the application.*** 7. ***Mention for directions on the disposal of the application on 30/07/2026.*** 8. ***Costs shall be in the cause.*** 9. Orders Accordingly. **DATED SIGNED AND DELIVERED VIRTUALLY AT THIKA VIA VIDEOLINK THIS 21ST DAY OF JULY, 2026.** …………………… **MOGENI J** **JUDGE** **In the presence of: -** Mr. Mwaura for the 1st and 2nd Plaintiffs 1st Defendant/Applicant – Absent B. Ongeri for the 2nd Defendant Mr. Kidwakwa for 3rd Defendant Mr. Karimu for 4th Defendant Mr. Melita - Court Assistant …………………… **MOGENI J** **JUDGE**