https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3086

Mbui v Kaumbuthu (Environment and Land Appeal E065 of 2024) [2026] KEELC 3086 (KLR) (18 May 2026) (Ruling) Neutral citation: [2026] KEELC 3086 (KLR) Republic of Kenya In the Environment and Land Court at Meru Environment and Land Appeal E065 of 2024 JO Mboya, J May 18, 2026 Between Francis Nteere Mbui Appellant and Morris Gitonga Kaumbuthu Respondent Ruling 1.Before me is the Notice of Motion Application dated the 16.02.2026; brought pursuant to the provisions of Order 12 Rule 7 of the Civil Procedure Rules, 2010; Section 3A of the Civil Procedure Act, Chapter 21 Laws of Kenya; and Article 50 of the Constitution, 2010. The reliefs sought vide the application are:i.That the Application be certified urgent in the first instance.ii.That this Honorable Court be pleased to set aside dismissal orders of 2nd February, 2026 and reinstate the applicant’s appeal hearing and determination.iii.That costs of this Application be provided. 2.The Application is premised on the grounds which have been enumerated in the body thereof. The grounds are: The applicant was not aware of the directions of the court issued on the 03.11.2025; the applicant’s advocate was out of the country; the applicant was not able to comply with or abide by the directions of the court; the failure to comply with or abide by the directions of the court was not intentional; the applicant is now ready and willing to comply with the directions of the court; and the appeal raises pertinent issues. 3.Additionally, it has been posited that the applicant shall be disposed to suffer substantial prejudice and injustice, if the orders issued on the 02.02.2026 are not set aside or varied. To this end, the applicant has invited the court to allow the application and grant the applicant an opportunity to prosecute the appeal. 4.The respondent has filed a replying affidavit sworn on the 12.04.2026. The respondent has raised various issues. The issues are: The applicant filed the appeal before the court; the applicant was enjoined to take the necessary steps towards the hearing of the appeal; the applicant failed to file the necessary documents; the failure by the applicant culminated into the issuance of directions on the 03.11.2025; the directions of the court contained a default clause; the applicant failed to abide by or adhere to the directions; and the failure necessitated the dismissal of the appeal. 5.Moreover, the respondent has posited that the subject appeal stood dismissed for non-compliance with the directions of the court which were issued on the 03.11.2025; and that the setting aside of the orders of 02.02.2026 shall be in vain. Furthermore, it has been contended that the applicant herein has never exercised due diligence in his endeavors to have the appeal heard and determined expeditiously. 6.Premised on the foregoing, the respondent has contended that the conduct of the applicant does not meet or satisfy the threshold of equity. To this end, the respondent has invited the court to dismiss the application; and to award costs to the respondent. 7.The application came up for hearing on the 13.05.2026; whereupon counsel for the applicant sought time to file and serve written submissions. In addition, learned counsel intimated to the court that same shall be amenable to filing and serving the written submissions within 24 hours from the date of directions. 8.On the other hand, learned counsel for the respondent posited that same shall also be ready and willing to file and serve written submissions within 24 hours of service. In the premises, counsel implored the court to proceed and issue directions for the filing and exchange of written submissions within the prescribed timelines. 9.Learned counsel for the applicant filed written submissions dated the 14.05.2026; and wherein the same has adopted the grounds contained in the body of the application; reiterated the averments contained in the supporting affidavit; and highlighted two [2] key issues: The issues are: The Honourable court is seized of unfettered discretion to set aside the impugned orders; and the subject appeal raises pertinent legal issues worthy of being determined on merits. 10.Based on the foregoing, learned counsel for the applicant has invited the court to find merit in the application; to set aside the orders issued on the 02.02.2026; and to restore the subject appeal for hearing and determination on merits. Further, and in any event, it has been contended that the respondent shall not be disposed to suffer any prejudice; hardship; or injustice. 11.Learned counsel for the respondent intimated that same had not filed any written submissions. Moreover, learned counsel posited that same was keen to rely on the contents of the replying affidavit. To this end, the court was implored to take cognizance of the averments and to deploy same in determining the subject application. 12.Having reviewed the application dated the 16.02.2026; and the supporting affidavit thereto; the Replying Affidavit in opposition thereto; and upon taking into account the written submissions by/on behalf of the applicant, two [2] issues crystalize for consideration and determination. 13.The issues are: Whether the setting aside of the orders issued on the 02.02.2026 would be an act in futurity or vanity; and Whether the applicant has established sufficient cause [if at all] to warrant the orders sought or otherwise. 14.Regarding the first issue, it is worthy to recall and reiterate that this Honourable court [differently constituted] issued directions on the 03.11.2025. The directions were explicit, succinct and apt. For ease of reference, it is apposite to reproduce the directions. 15.Same are reproduced as hereunder:“The appellant has 30 days within which to file and serve the record of appeal. In default, this appeal shall stand dismissed with costs. The cost registry shall extract and email this order to the appellant’s advocate today. Mention on 02.02.2026.” 16.The Appellant/Applicant herein did not comply with the directions of the court. To this end, when the matter came up on the 02.02.2026, the Honourable Court intimated to learned counsel for the appellant that the appeal stood dismissed in terms of the directions issued on the 03.11.2025. Notably, the court clarified that there was no appeal pending, insofar as the default clause had taken effect and materialized. 17.To my mind, the learned Judge did not make any precipitate or substantive order dismissing the appeal on the 02.02.2026. Instructively, the learned Judge merely reiterated the tenor; purport; and effect of the orders that were issued on the 03.11.2025. Simply put, the learned judge clarified that the subject appeal stood dismissed for none compliance. 18.Be that as it may, the applicant is now back before me and same is seeking to set aside the orders of the court that were issued on the 02.02.2026. 19.The question that does arise is whether the setting aside of the said orders, [if at all], will reinstate or restore the appeal. I beg to state that the setting aside of the orders made on the 02.02.2026 [for whatever is worth] shall leave the orders and directions of the 03.11.2025 in existence. For good measure, the appeal shall still stand dismissed in line with the directions issued on the 03.11.2025, which orders have neither been reviewed or rescinded. 20.It is instructive to observe that the appellant and his legal counsel are privy to and aware of the orders of 03.11.2025, but for reasons known to them same, have not sought to review or vary the said orders. 21.To my mind, the net effect of the failure to impugn the said Orders, is that the applicant and his counsel are happy and comfortable with the terms and tenor of the same [said orders]. 22.In my humble view, the setting aside of the orders, issued on the 02.02.2026 [if at all], will not vary or rescind the apt directions that were issued on the 03.11.2025. Consequently, and in this regard, there is no gainsaying that the appeal shall remain dismissed. 23.To this end, it is common ground and crystal clear that the orders sought shall be an exercise in futility or vanity. 24.Notably, it is common ground that courts do not act in vain. In this regard, the setting aside of the orders sought will not be of any help. In the case of Hamisi v Tobiko & 2 others [2013] KECA 279 (KLR), the Court of Appeal stated as hereunder:Courts, like nature, must not act and must not sit in vain. 25.Turning to the second issue, I wish to state that whosoever seeks to partake of and benefit from the equitable discretion of the court, the applicant herein not excepted, is called upon to demonstrate sufficient cause or basis. What constitutes sufficient cause has been the subject of various court decisions. 26.The court in the case of Wachira Karani v Bildad Wachira [2015] eKLR Civil Case 101 of 2011, stated thus:What does the term "sufficient cause" mean.? The Court of Appeal of Tanzania in the case of The Registered Trustees of the Archdiocese of Dar es Salaam vs The Chairman Bunju Village Government & Others[9] discussing what constitutes sufficient cause had this to say:-“It is difficult to attempt to define the meaning of the words ‘sufficient cause’. It is generally accepted however, that the words should receive a liberal construction in order to advance substantial justice, when no negligence, or inaction or want of bona fides, is imputed to the appellant” [Emphasis added]. 27.Has the Applicant established sufficient cause? In an endeavor to ascertain/discern whether the applicant has established sufficient cause, it is important to interrogate /dissect the conduct of the applicant following the filing of the subject appeal. 28.It is instructive to state that the applicant herein was obligated to file/lodge a copy of the order being appealed against so as to enable the court to consider the admission of the appeal. [See Section 79B of the Civil Procedure Act Chapter 21 Laws of Kenya]. 29.Despite being aware of the obligation to do so, the appellant failed to file/lodge the order underpinning the appeal. The failure to lodge the said order demonstrate[s] want [lack] of diligence on the part of the applicant and his learned counsel. 30.Additionally, the appellant herein was obliged to file and serve the record of appeal so as to enable to issuance of directions by the court in terms of Order 42 Rule 13 of the Civil Procedure Rules, 2010. Yet again, the appellant failed and hence the court was constrained to set timelines for the filing and service of the record of appeal. Moreover, the court ventured forward and inserted a default clause. The insertion of the default clause must have been informed by the Applicant’s antecedent conduct, including absence of due diligence. 31.Despite the directions of the court, which were ordered to be served upon the counsel for the applicant by way of email, the applicant and the counsel failed to comply. I beg to point out that learned counsel for the appellant has neither disputed nor challenged the issue of service of the directions by way of email. 32.Addfitionally, it is not lost on me that the appellant and his counsel were obligated to follow up on the appeal and to ensure that the necessary steps are taken and indeed taken with due diligence. Suffice it to point out that the appellant and his counsel were/are enjoined to act expeditiously and proportionally by virtue of Section 1B of the Civil Procedure Act, Chapter 21 Laws of Kenya. 33.I must point out that the applicant and his counsel did not exhibit due diligence and the conduct of the appellant herein is one, that does not meet the threshold of equity. Moreover, there is no gainsaying that court orders [including the directions issued on the 03.11.2025] must be obeyed. Furthermore, it is common ground that where the orders of the court are not obeyed, the defaulting party must bear the consequences of such failure or neglect. 34.In the case of Tana Teachers’ Cooperative and Credit Society Limited v Andriano Muchiri [2018] KECA 192 (KLR), the Court of Appeal highlighted the consequences of failing to comply with or abide by the directions/orders of the court. 35.The court stated thus:13.. .Although parties are always in haste to invoke the “overriding principle” when seeking favourable exercise of discretion by the courts or covering up for some infractions they may have committed, they tend to forget that Section 1A (3) Civil Procedure Act as well as section 3A Appellate Jurisdiction Act enjoins them to assist the court in ensuring that court directions are complied with and that justice is dispensed expeditiously. A party cannot egregiously fail or refuse to comply with directions of the court claiming that the said directions were salutary and not accompanied by any sanctions and hope to seek refuge in the overriding principle. That in our view amounts to gross abuse of court process. There must be an end to litigation and it behoves this Court to tell the appellant that its journey ends at this point. 36.Other than the foregoing decision, it is also important to highlight that parties to court proceedings, the applicant included, are called upon to conduct the business of the court in a manner that accords with the provisions of Article 159 [2] [b] of the Constitution, 2010. 37.Simply put, the parties are called upon to assist; or help the court to expedite the proceedings. [see the succinct exposition in the case of Said Sweillem Ghethan Saanum versus The Commissioner of Lands [sued through The Attorney General] [2015] eklr]. 38.To my mind, the manner in which the appellant conducted itself does not warrant the intervention of equity. Moreover, I am not prepared to invoke the doctrine that the mistake of counsel ought not to be visited upon the client. Suffice it to state that the client must also be on watch out and exhibit due diligence in following up his/her matter. [See the holding in the case of Habo Agencies Limited vs. Wilfred Odhiambo Musingo [2015] eKLR]. 39.In short, I am not persuaded that the applicant has established and demonstrated sufficient cause. On the contrary, the conduct of the Applicant is one that cannot attract the intervention of Equity. Notably, equity aids the vigilant and not the indolent. Conclusion 40.Flowing from the foregoing, what becomes apparent is that the orders sought by the appellant/applicant shall be in vanity. Suffice it to point out that the setting aside of the said orders [if at all] will not impeach or vary the primary orders/directions, which were issued on the 03.11.2025; and which order[s] remain in situ. Final Orders 41.Consequently, and in the premises, the final orders that commend themselves to me are:i.The Application dated 16.02.2026 be and is hereby Dismissed.ii.Costs of the Application be and are hereby awarded to the Respondent.iii.The Costs in terms of clause [ii] above shall be agreed upon and in default, be taxed in the conventional manner. 42.It is so ordered. DATED, SIGNED AND DELIVERED AT MERU LAW COURT ON 18TH MAY, 2026.OGUTTU MBOYA; FCIArb; CPM [MTI-EA].JUDGE.In the Presence of-Mr. Zakayo- Court AssistantMs. Kerubo holding brief for Mr. Kaume for the Appellant/ApplicantMr. Ngunjiri for the Respondent