https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4765

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MERU** **ELC APPEAL NO. E078 OF 2022** LAWRENCE MURUNGI ……………………….….…………APPELLANT ***VERSUS*** BONFACE NG’ENTU ……………………………....…..……RESPONDENT *[****Being an appeal from the Ruling of the Hon. S. Abuya , Senior Principal Magistrate in Meru Civil Suit No. 247 of 1992 delivered on 25.06.2020]*** **JUDGMENT** 1. Delay in the hearing and prosecution of suits, has been a serious blemish in the Judiciary. In deed the delay in disposal of suits was and remains, one of the serious contributing factors to the backlog that bedevils the administration of justice in our jurisdiction. Everyone appreciates that there does exists backlog. However, the causes of backlog are various and diverse. Some of the causes are attributable to the Judiciary. But, some are attributable to the parties, who deploy [sic] slovenly approach, in the conduct of their matter[s]. 2. The subject appeal brings to mind the realities, that often and do arise, when suits are not heard and determined expeditiously. The suit leading to this appeal was filed in the year 1992. The appellant, who was the plaintiff appears to have been lackluster in his approach and thus the suit was not heard expeditiously. In fact, the suit was ultimately dismissed for want of prosecution on various occasions including on the 25.08.2011. 3. Be that as it may, the suit was reinstated for hearing. However, the appellant reverted back to slumber, culminating into the suit being dismissed again on the 24.07.2017. The subsequent dismissal, precipitated the filing of an application dated 20.02.2020, and which application was heard and dismissed *vide* ruling delivered on the 25.06.2020. 4. It is the said ruling and the consequential order which irked the appellant and thus provoking the subject appeal. The appellant approached the court *vide* memorandum of appeal dated 15.12.2022. Suffice it to state that the appeal was filed pursuant to leave which was granted, by this Court [differently constituted] on the 14.12.2022. 5. The grounds underpinning the appeal are: 6. ***That the learned trail magistrate erred in law and fact in refusing to accept the explanations given by the appellant that he failed to attend court because he was not aware of the dates yet this is a sound explanation.*** 7. ***That the learned trial magistrate erred in law in dismissing the application by the appellant meaning that the appellant is very keen to be heard.*** 8. ***That the learned trial magistrate erred in law and fact in punishing the appellant for the mistakes of his previous advocates who did not attend court and did not notify him of hearing/mention dates.*** 9. ***That the learned trial magistrate erred in law and fact in failing to uphold the rule to a fair trial and appreciate that the right to a fair trial is a constitutional right and has a very high value in our judicial system and that it can only be taken away in very exceptional circumstances.*** 10. ***That the learned trial magistrate erred in law and fact in failing to appreciate that the appellant is an old man who depended wholly on his advocate but his advocate failed him terribly and as a result a miscarriage of justice occurred to the prejudice to the appellant.*** 11. ***That the learned trial magistrate erred in law and in fact in failing to appreciate the history of the suit before dismissing the application.*** 12. ***That the entire finding and ruling of the learned trial magistrate is bad and is against the law.*** 13. The subject appeal came up for final directions on the 29.06.2026, where upon learned counsel for the appellant intimated to the court that the same had effectively substituted the appellant, who had passed on during the pendency of the appeal. Learned counsel further posited that same had also filed and served the record of appeal. In addition, counsel posited that the record of appeal was complete. To this end, learned counsel sought directions as pertains to the hearing of the appeal. 14. With the concurrence of the learned counsel for the respondent, the court proceeded to and issued directions. The directions were: The appeal shall be canvassed by way of written submissions; the appellant shall file and serve the written submissions within 14 days from the date of the directions; the respondent shall file and serve the written submissions within 14 days from the date of service; and the appellant shall be at liberty to file and serve rejoinder submissions [if any] within 7 days of service. 15. The appellant filed written submissions dated the 07.07.2026 and wherein the appellant has highlighted four [4] key issues. The issues are: The appellant was failed by his previous counsel; the mistake of counsel ought not to be visited upon the client; the Court is obligated to protect the appellant’s right to fair hearing under Article 50 of the Constitution, 2010; and the respondent shall not suffer any prejudice or injustice, if the appeal is allowed and the suit in the lower court is reinstated/restored, for hearing on merits. 16. To buttress the foregoing submissions, learned counsel for the appellant has cited various decisions. The decisions are: **John Nahason Mwangi versus Kenya Finance Bank Limited [in liquidation] [2015] eKRL; Adiel Mureithi Philip versus Thomas Maingi [2016] eKLR; Philip Keiptoo Chemolo and another versus Augustine Kubende [1986] eKLR and Njuca Consolidated Company Limited versus Commercial International Bank and two others [2025] KEHC,** respectively. 17. Learned counsel for the appellant has thereafter invited the court to find and hold that the appellant has established sufficient basis to warrant the appeal being allowed. To this end, the court has been implored to allow the appeal; set aside the impugned ruling; and to allow the application dated the 20.02.2020. For the avoidance of doubt, the appellant is keen to have the original suit revived and reinstated for hearing and determination. 18. Learned counsel for the respondent filed written submission dated the 09.07.2026. The respondent has raised three [3] key issues. The issues are: The delay culminating into the dismissal of the original suit was unreasonable and inordinate; the appellant failed to tender credible explanation underpinning the delay; and the respondent shall be exposed to grave prejudice and injustice, if the appeal, were to be allowed. 19. To buttress the submissions, learned counsel for the respondent has cited four decisions. The decisions are: **Nyamu versus Mugambi [2022] KEHC 405; Rajesh Rughani versus Fifty Investment and another [2005] eKLR; and Bi-Mach Engineers Limited versus James Kahoro Mwangi,** respectively. 20. Flowing from the foregoing submissions, learned counsel for the respondent has invited the court to find and hold that the subject appeal, is devoid of merits. The court has been implored to dismiss the appeal; and to award costs to the respondents. 1. Having reviewed the record of the appeal; the grounds of the appeal; the impugned ruling; and upon considering the submissions by/on behalf of the respective parties, only one [1] salutary issue arises for determination by the court. The issue is: Whether the ruling by the learned trial magistrate is vitiated by errors of principle[s] or otherwise. 2. Before venturing to address the solitary issue, which has been highlighted in the preceding paragraph, it is important to underscore that what is before me is a first appeal. In addition, it suffices to state that the appeal challenges the exercise of discretion by the trial court in dismissing the appellant’s application dated the 20.02.2020, which sought reinstatement of the suit, that had been dismissed for want of prosecution. 3. It is pertinent to underscore that though this court is seized of the requisite jurisdiction to interfere with the discretion of the court of the first instance [lower court], the jurisdiction to interfere is not unfettered. On the contrary, the jurisdiction is circumscribed. This court can only interfere with the exercise of discretion of the lower court, if and only if, it is proven that: The lower court took into account extraneous matters; failed to take into account relevant matters; misapprehended the facts and the circumstances surrounding the matter beforehand; or misconstrued/misapprehended the established principles of the law and thus arrived at an erroneous conclusion. 4. The scope of the first appellate court’s jurisdiction to interfere with the discretion of the lower court has been the subject of various decisions. In particular, the jurisdiction of the first appellate court to interfere with the discretion of the lower court, was illuminated in the case of **Mbogo Versus Shah [1968] EA at page 93 thereof.** The court **[DE LESTANG JA]** stated thus: ***“I think it is well settled that this Court will not interfere with the exercise of its discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”*** 5. The foregoing position, which highlights the jurisdictional remits of the first appellate court, was reaffirmed and reiterated in the case of **Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KECA 175 (KLR)** The Court of Appeal broke down the parameters as hereunder: ***“2. The Court of Appeal may only interfere with the exercise of a court’s judicial discretion if satisfied:*** * 1. ***The judge misdirected himself on law; or*** 2. ***that he misapprehended the facts; or*** 3. ***that he took account of considerations of which he should not have taken account; or*** 4. ***that he failed to take account of consideration of which he should have taken account; or*** 5. ***that his decision, albeit a discretionary one, was plainly wrong.”*** 1. Bearing the foregoing in mind, I am now well poised to address the issue that was highlighted for determination. The issue is: Whether the appellant has established or demonstrated any improper or injudicious exercise of discretion by the trial court or otherwise. 2. It is common ground that the lower court generated and issued a notice to show cause [NTSC] why the appellant’s suit ought not to be dismissed. The notice to show cause was taken out and served pursuant to the provisions of **Order 17 Rule, 2 [1] of the Civil Procedure Rules, 2010**. The provisions under reference relates to dismissal of suits, where a party has not taken any steps, to prosecute a suit for more than one year. 1. The notice to show cause did not attract any response from the appellant or his advocates. Simply put, no cause or sufficient cause, was ever shown to the court to warrant saving the suit. In the absence of the sufficient cause, the learned trial magistrate proceeded to and dismissed the suit for want of prosecution. The dismissal was in line with the provisions of **Order 17 Rule 2 of the Civil Procedure Rules, 2010.** 2. Thirty-one [31] months after the dismissal of the suit for want of prosecution, the appellant resurfaced vide application dated the 20.02.2020. The appellant sought setting aside of the dismissal orders; and reinstatement of the suit. 1. The appellant contended that his previous counsel had failed to inform him of the hearing date. Moreover, the appellant posited that he made various attempts to ascertain the status of his suit. However, the appellant contended that his previous advocate did not offer any information and thus same was kept in the dark. In addition, the appellant asserted that he only came to realize that his suit had been dismissed for want of prosecution when he went to the court registry in 2020. 1. It is instructive to underscore that the appellant took another three years to [sic] visit the registry, in an endeavor to ascertain the status of his suit. Nevertheless, in all these instances, no correspondence was ever generated or even attached to the application, which was filed before the trial court. 2. The learned trial magistrate reviewed the application, and came to the conclusion that the appellant was not deserving of equitable discretion. The learned trial magistrate posited that the reasons that had been propagated, were neither plausible nor reasonable. In addition, the learned trial magistrate also considered the age of the file and in particular, that the suit which was sought to be reinstated had been pending for more than 28 years. 3. With the foregoing observations in mind, the learned trial magistrate was not persuaded to reinstate the suit. It is, this ruling and the consequential order, that has now elicited, nay, provoked the appeal. 4. It was incumbent upon the appellant to demonstrate to me that the learned trial magistrate, did not exercise his/her discretion correctly. Or that the learned trial magistrate took into account extraneous /irrelevant factors, which vitiated the exercise of discretion. In addition, the appellant was enjoined to demonstrate an error of principle, [if any], which impacted upon the exercise of discretion. 5. Despite the established position of the law, learned counsel for the appellant did not isolate or highlight any aspect of improper or injudicious exercise of discretion. In fact, learned counsel for the appellant, has argued the appeal, as if, same is arguing the application for reinstatement of the Dismissed suit. The counsel has obsessed herself with demonstrating the sufficiency of the reason[s] that were offered; and the prejudice, that is [sic] likely to be suffered. I beg to state that the sufficiency or otherwise of the reasons [explanation] was to be canvassed before the trial magistrate and not before me. 6. *Conversely*, what was to be argued before me in the appeal and learned counsel, was enjoined to prove, were the errors; the omissions; or the commissions, [if any], which impacted on the exercise of discretion. Mine was to discern whether the learned trial magistrate failed to act reasonably, or judiciously, while appreciating that I cannot substitute my thinking and my discretion, in place of that of the trial court. 1. Moreover, it is trite and established that I can only interfere with the discretion of the trial court, if, and only if, it is proven that same was unreasonable or the conclusion, that was arrived at, is wrong as a matter of principle. Other than the foregoing, the law commands that I must exercise deference. 2. In the case United India Insurance **Co Ltd v East African Underwriters (Kenya) Ltd [1985] KECA 39 (KLR),** the Court of Appeal [COA] illuminated the scope of the jurisdiction to interfere with the exercise of the discretion of the trial court in the following manner: “***The Court of Appeal is only entitled to interfere if one or more of the following matters are established: first, that the judge misdirected himself in law; secondly, that he misapprehended the facts; thirdly, that he took account of considerations of which he should not have taken account; fourthly, that he failed to take account of considerations of which he should have taken account, or fifthly, that his decision, albeit a discretionary one, is plainly wrong”*** 1. I beg to state that the learned trial magistrate considered the key parameters, which were important in guiding the exercise of discretion. The parameters that were considered and deployed by the Learned Trial Magistrate were: 2. *The time lapse between the last time the matter was active to when the suit was dismissed.* 3. *The time lapse was reckoned to be three years or thereabout.* 4. *Time lapse between the dismissal of the suit to the filing of the application for reinstatement.* 5. *The time lapse was reckoned to be three years.* 6. *The reason /explanation offered.* 7. *The sufficiency of the reason offered.* 8. *The position of the law as pertains to whether the omnibus excuse of [sic] mistake of counsel ought not to be visited upon the litigant.* 9. *The age of the file [28] years in the corridors of justice.* 10. *The prejudice and injustice that would arise, in the event of reinstatement.* 11. *The impact of delay on the fair administration of justice.* 12. *The principle of justice delayed is justice denied.* 13. With all these observations, which are clearly captured in the body of the ruling, I find it difficult to appreciate the complaints by the appellant. It is true that the appellant, just like every other person, is entitled to partake of the right to fair hearing. However, the appellant must be reminded that the right to fair hearing does not exist in isolation. The right to fair hearing co-exists with many other rights, inter alia; due process; and expeditious hearing. Simply put, the provisioins of Article 50 [1] of the Constitution, 2010, must be read in harmony with the provisions of Article[s] 10 [2], 27 [1] and [2] and 159 [2] [b] thereof. There must be equality of arms in the administration of Justice. The scales must be held even. 14. Furthermore, it is also apposite to remind the appellant that the mere fact that the dispute touches on land, does not mean that the mere assertions to that effect, should not be interrogated. Even people with land matters must still abide by and comply with the dictates of the **Article 10, and 50 [1] of the Constitution, 2010**; as read together with **Sections 1A and 1B of the Civil Procedure Act, Chapter 21 Laws of Kenya.** 15. Before concluding on this appeal, it is imperative to remind myself of the observation of the Court in the case of Said **Sweilem Gheithan Saanum v Commissioner of Lands (being sued through Attorney General) & 5 others [2015] KECA 284 (KLR)** , where the Court of Appeal stated thus: **“Justice shall not be delayed” is no longer a mere legal maxim in Kenya but a constitutional principle that emphasizes the duty of the advocates, litigants and other court users to assist the court to ensure the timely and efficient disposal of cases. The principles which are reiterated by sections 1A and 1B of the Civil Procedure Act are intended to facilitate the just, expeditious, proportionate and affordable resolution of disputes. The principle cannot therefore be a panacea which heals every sore in litigation, neither is it a licence to parties to ignore or contravene the law and rules of procedure.”** 1. It is time the foregoing observation be appreciated by all and sundry. Similarly, time is ripe for the provision of **Article 159 [2] [b] of the Constitution, 2010**, to be made a reality. The said provisions cannot remain aspirational forever. **Conclusion:** 1. It was incumbent upon the appellant to isolate and highlight the improper or injudicious exercise of discretion by the trial court. It is the improper exercise of discretion,[if any], that would provide a key to warrant intervention by this Court. Sadly, the appellant failed to demonstrate any iota [scintilla] of improper exercise of discretion. 2. Absent evidence of improper or injudicious exercise of discretion, this court is commanded to defer to the discretion of the lower court. The interference with such discretion, cannot be undertaken for the mere asking. 3. Pulling the threads together, I find and hold that the subject appeal is *devoid* of merits. It is one that courts dismissal. For sure, that is the only recipe. **Final orders:** 1. In the premises, and for the reason[s] that have been discussed hereinbefore, the final orders that commend themselves to the court are: 2. ***The Appeal be and is hereby Dismissed.*** 3. ***The Ruling of the learned trial magistrate dated the 25.06.2020 and the consequential order arising therefrom be and are hereby Affirmed.*** 4. ***Costs to the appeal be and are hereby awarded to the respondent.*** 5. ***The costs in terms of clause [iii] above shall be agreed upon and in default, to be taxed in the conventional manner.*** 6. It is so ordered. **DATED, SIGNED AND DELIVERED AT MERU ON 27TH DAY OF JULY, 2026.** **OGUTTU MBOYA; FCIArb; CPM [MTI-EA].** **JUDGE.** In the presence of: Court Assistant: Zakayo Ms. Nyokabi holding brief for Mr. Mutama for the Appellant Ms. Bett holding for Mr. Kiogora Arithi for the Respondent