https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3438

Mitingi & 7 others v Diamond Trust Bank Kenya Limited & another (Environment and Land Case E007 of 2026) [2026] KEELC 3438 (KLR) (19 May 2026) (Ruling) Neutral citation: [2026] KEELC 3438 (KLR) Republic of Kenya In the Environment and Land Court at Malindi Environment and Land Case E007 of 2026 FM Njoroge, J May 19, 2026 Between Makanga Mitingi & 7 others Plaintiff and Diamond Trust Bank Kenya Limited 1st Defendant Tropical Heavens Limited 2nd Defendant Ruling 1.The Notice of Motion dated 18th February 2026 which has been brought by the plaintiffs herein has the following prayers:a.That the application be certified as urgent and service thereon be dispensed with in the first instance.b.That status quo in terms of prayer number 2 of the Plaintiff’s Application dated 24th January, 2026 be maintained pending the hearing and determination of this application inter partes.c.That the orders made on the 18th day of February, 2026 dismissing the Plaintiff’s application dated the 28th day of January, 2026 be set aside.d.That the Plaintiffs application dated 28th day of January, 2026 together with the interim orders of 30th day of January, 2026 be reinstated for hearing;e.That costs of this application be in the cause. 2.The application is supported by the affidavit of Mr. Richard Otara, advocate, and it is premised on the following grounds:a.That the application dated the 28th day of January, 2026 was scheduled for inter parte hearing on the 18th day of February, 2026.b.That the application was duly served upon all parties who filed their respective responses.c.That the application came up for inter parte hearing on the 18th day of February, 2026.d.That when the matter was about to be mentioned, power went off which affected the whole of Malindie.That the application was mentioned while counsel for the Plaintiffs Mr. Otara was struggling to re log in with his Mobile phone.f.That by the time Mr. Otara was admitted back online, the application had already been mentioned and dismissed for non-attendance.g.That Mr. Otara came to know about the dismissal when he inquired from the Judge whether the matter had been called out.h.That failure to remain on the platform was not deliberate but due to unavoidable circumstances.i.That it would be fair, just and reasonable that the orders herein are granted. The Second Defendant Replying Affidavit 3.The second defendant’s replying affidavit in opposition to the application is dated 24th March 2026. The deponent reiterated the contents of his replying affidavit sworn on 6th February 2026. He stated that the beacons had been re-established and the suit property fenced long before pleadings herein were served upon the second defendant. He states that a consent order had been adopted as a judgment and a decree of a competent court and the company had acted and substantially implemented, the said decree and therefore reinstating the impugned orders as proposed by the applicant would be tantamount to granting orders that are incapable of achieving any meaningful legal or practical outcome; that the plaintiffs did not form part of the beneficiaries under the Deed of Settlement dated the 26th January 2026, and therefore there is no legitimate or legal foundation upon which the orders sought can be sustained; that the present application and the earlier application dated 28th January 2026 have been overtaken by events; that the 2nd defendant has already fenced off the suit property and cleared all the temporary structures and houses which had been erected and they only thing left is resettlement of the 5 families who were recognized in the Kilifi lower court case, and consequently the balance of convenience does not favour the plaintiffs; that the said orders, if granted would instead inconvenience the defendant; that the plaintiffs have not demonstrated the existence of any exceptional or compelling circumstances that would warrant the setting aside of the dismissal order issued by the court on 18th February 2026; that the claim of power outage in Malindi has not been corroborated from any other source other than Mr. Otara’s statement in his supporting affidavit; without providing any evidence, the deponent states that that there was careless and leisurely approach on the part of counsel for the plaintiffs and that the consequences thereof must be shouldered by the plaintiffs. 4.No other party filed a Replying Affidavit in reply to the application. First Defendant’s Submissions Dated 13th May 2026 5.The first defendant filed submissions dated 13th May 2026. No other party filed submissions to the application. This court has considered the said submissions in the preparation of the present ruling. Analysis and Determination. 6.The focus of the present ruling is the application dated 18th February 2026; this court must avoid being drawn into arguments relating to the substance of the application day 28th January 2026. The issue that is before Court is whether there are circumstances that can permit it to exercise its discretion to set aside its order dismissing the application dated 28th January 2026 for want of attendance on the part of counsel for the plaintiffs. 7.Mr. Otara has in his affidavit indicated that there was a power outage in Malindi which occasioned his non-attendance. This court takes judicial notice that loss of power in this country has been happening regularly of late. There is no evidence on the part of the defendants to the effect that there was no power outage on 18th February 2026 which disabled Mr. Otara from attending court virtually when the application came up for hearing. 8.It is noteworthy that the present application was file on the same day that the earlier application dated 28th January 2026 was dismissed. This supports Mr. Otara’s statement that he later logged into the virtual courtroom on that particular day but found that the application dated 28th January 2026 had been dismissed for non-attendance. 9.I do not find any evidence that Mr. Otara contributed to the power failure, and in this court’s view the blame should not be placed on him or the consequences of non-attendance on his clients’ shoulders while there is no evidence of any wrongdoing on his part. Where none of the parties or their counsel have been proved to be liable for any wrongdoing for non-attendance as in the present case, orders of dismissal sought ought to be granted ex debito justitiae. The consideration of the effectiveness or otherwise of the orders that had been enjoyed by the plaintiffs as at that date, which would not have expired that day but for the dismissal order, must take a back seat for now since those orders must be reinstated ex debito justiciae. 10.The upshot of the foregoing is that this finds that the application dated 18th February 2026 has merit and I therefore grant prayer nos 3, 4 and 5 as sought in the application. 11.This matter shall be mentioned on 27th May 2026 for further directions as to hearing of the application dated 28th January 2026. DATED, SIGNED AND DELIVERED AT MALINDI VIRTUALLY THIS 19TH DAY OF MAY 2026.MWANGI NJOROGEJUDGE, ELC MALINDI.