https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5038

**THE REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND COURT AT NAIROBI** **PETITION NO 190 OF 2013** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **JOSEPH GATHOGO MUBEA - PETITIONER /APPLICANT** **VS** **ATTORNEY GENERAL** **[Sued for and on behalf of Kenya** **Air Force & Department of Defence] - RESPONDENT** **RULING** **(In respect of the Applicant’s Application dated 29/10/2025)** 1. Before this Court is the Applicant's application dated 29/10/25 seeking the following orders; 2. The Court be pleased to rescind/set aside its orders dated 28/10/2025 dismissing the suit and to reinstate the suit for hearing on the merits 3. A temporary injunction is hereby issued restraining all organs of state, their servants and/or agents, and any other person whatsoever acting in their behalf from demolishing the Petitioners' quiet possession and enjoyment of the said property pending the hearing and determination of the petition. 4. Costs of the application. 5. The application is premised on the grounds annexed thereto and the supporting affidavit sworn by Mutimu Lukas Kangata, Advocate acting for the Applicant. He deposed that on 28/10/25 the suit was dismissed for want of prosecution/non-attendance, yet he and his witness were waiting for the hearing, virtually unaware that the Court had scheduled the matter for a physical hearing on the material date. That he learnt on the material date that the matter had been dismissed from the Court Tracking System [CTS]. That, as a result, the orders issued on 24/11/2011 in favour of the Petitioner now stand vacated, and the Petitioner's properties situated on the suit land risk being demolished by the Respondent. The Court was urged to reinstate the suit as well as the temporary injunction. 6. Relying on the reply affidavit sworn on 20/11/25, Shadrack Kinga, Counsel for the Respondent, recounted the events of 28/10/2025 and added that he attended Court for the hearing at 10.15 am on the material date, as directed by the Court at the call-over. However, when the matter was called out for hearing, Counsel for the Petitioner and his client were absent from Court without any explanation, despite having confirmed their readiness to proceed with the hearing in the morning. On the basis of their absence, he moved the Court to dismiss the suit. The Court obliged and dismissed the suit for non-prosecution/non-attendance. It is his case that the dismissal of the suit for the reasons stated by the Court was therefore lawful and in line with the provisions of Order 12 Rule 3(1) of the Civil Procedure Rules, which requires that when only the Defendant attends Court on the day fixed for hearing, after the suit has been called out and the Defendant admits no part of the claim, the suit shall be dismissed except for good cause to be recorded. That the Applicant has not established a prima facie or good cause to warrant issuance of a temporary injunction against the Respondent and that the application lacks merit, is frivolous and ought to be struck out in limine. 7. The parties complied with the requirement to file written submissions, which I have read and considered in the Ruling, and I find no reason to repeat them. 8. The key issue for determination is whether the petition ought to be reinstated. Secondly, whether, upon reinstating the petition, the orders of temporary injunction ought to be granted/reinstated. 9. On the question of reinstatement of suit, the starting point is the provisions of Order 12 rule 1 of the Civil Procedure Rules, which state as follows; “[Order 12, rule 1.] When neither party attends. 1. If on the day fixed for hearing, after the suit has been called on for hearing outside the Court, neither party attends, the Court may dismiss the suit. [Order 12, rule 2.] When only Plaintiff attends. 2. If on the day fixed for hearing, after the suit has been called on or hearing outside the Court, only the Plaintiff attends, if the Court is attends satisfied — (a) that notice of hearing was duly served, it may proceed ex parte; (b) that notice of hearing was not duly served, it shall direct a second notice to be served; or (c) that notice was not served in sufficient time for the Defendant to attend or that for other sufficient cause the Defendant was unable to attend, it shall postpone the hearing. [Order 12, rule 3.] When only Defendant attends. 3. (1) If on the day fixed for hearing, after the suit has been called on for hearing outside the Court, only the Defendant attends and he admits no part of the claim, the suit shall be dismissed except for good cause to be recorded by the Court. 1. Evidently from the record, the suit was fixed for hearing on 28/10/25, when the Petitioner's Counsel informed the Court that he was ready to proceed. In response, the Respondents' Counsel informed the Court that his witnesses were not available, but he was nevertheless ready for hearing in respect of the Petitioner's witness. The Court then fixed the hearing for 10.15 on the same date. Due to the heavy cause list for the day, the Court reached the matter at 1.35 pm Upon calling out the matter, the Petitioner's Counsel and his witness were absent, forcing the Respondents' Counsel to orally move the Court for its dismissal for want of prosecution and/or non-attendance. In line with the provisions of Order 12 Rule 3 (1), the suit was dismissed. 2. Aggrieved by the Court's decision, the Petitioner moved the Court and filed the instant application on 29/10/2025, two days after the dismissal. The application was therefore filed without undue delay. 3. The law applicable for setting aside judgment or dismissal is Order 12 Rule 7 of the Civil Procedure Rules which provide as follows; “Where under this Order judgment has been entered or the suit has been dismissed, the Court, on application, may set aside or vary the judgment or order upon such terms as may be just.” 1. Reinstatement of a suit is discretionary. Section 3A of the Civil Procedure Act gives the Court inherent power to make such orders as may be necessary to achieve the ends of justice. What the Court is to consider while exercising discretion was emphasized in the case of Esther Wamaitha Njihia & 2 Others -vs- Safaricom Ltd [2014] eKLR where the Court held inter alia:- “The discretion is free and the main concern of the Courts is to do justice to the parties before it (see Patel vs E.A. Cargo Handling Services Ltd.) the discretion is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error but is not designed to assist a person who deliberately sought, whether by evasion or otherwise, to obstruct or delay the cause of justice (see Shah vs. Mbogo). The nature of the action should be considered, the defence if any should also be considered; and so should the question as to whether the Plaintiff can reasonably be compensated by costs for any delay bearing in mind that to deny a litigant a hearing should be the last resort of a Court…. It also goes without saying that the reason for failure to attend should be considered.” 1. The principles for setting aside ex-parte orders were well settled in the case of Mbogo & Another v Shah [1968] EA 93**,** the Court held that:- 2. Firstly, there are no limits or restrictions on the judge’s discretion except that it should be based on such terms as may be just because the main concern of the Court is to do justice to the parties. 3. Secondly, this discretion is intended so to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist the person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice. 4. A discretionary power should be exercised judicially and not arbitrarily or idiosyncratically 5. The Petitioner's Advocate has argued that he and his client were under the mistaken belief that the matter was proceeding virtually, and therefore waited in the counsel’s chamber, only to address the Court virtually in the afternoon to follow up on the hearing, only for the Court to inform him that the Court had dealt with the file and that he should check the outcomes in the Court tracking system, which he promptly did and discovered that it had been dismissed for want of prosecution/non-attendance. The Respondent, on the other hand, submits that the dismissal was lawful, as the Court did not give any directions with respect to a virtual hearing, and the Petitioner and his Counsel ought to have attended the hearing in person. 6. The record shows that this suit was filed in 2013, thirteen years ago, and for one reason or another the same is yet to be heard and concluded. The Court cannot make a conclusion that the Petitioner was necessarily to blame for the current state of affairs. The Court also notes that for the longest time the Petitioner has enjoyed temporary orders restraining the Respondent from demolishing the property since 24/11/2011. I have considered the reasons adverted by the Petitioner and the Court is persuaded that they are credible and believable. Relying on the principle established in the case of Shah vs Mogo (1979) EA 116, cited above, I am equally persuaded that the reason given by the Plaintiff’s Counsel for his failure to attend Court on 5/5/2025 is excusable, inadvertent and not intended to pervert the course of justice. 7. I conclude that this matter warrants the exercise of the Court’s discretion in favour of the Applicant, particularly given the Court’s mandate to deliver substantive justice pursuant to Article 159(2)(d) of the Constitution. 8. In the foregoing, I find that justice would be served if the parties are heard on the merits, as dismissal of a suit is a draconian act that drives a litigant away from the seat of justice. This position was amplified in the case John Nahashon Mwangi –vs- Kenya Finance Bank Limited (in Liquidation) [2015] eKLRas follows: - “Courts should sparingly dismiss suits for want of prosecution for dismissal is a draconian act which drives away the Plaintiff in an arbitrary manner from the seat of judgment. Such acts are comparable only to the proverbial ‘Sword of the Damocles’ which should only draw blood where it is absolutely necessary.” 1. **Final orders for disposal** 2. Therefore, and purely in the interests of justice, the application dated 29/10/25 partially succeeds. 3. Consequently, the orders of 24/11/2025, dismissing the Applicant’s suit in its entirety, are hereby set aside. 4. This suit is hereby reinstated on condition that the Applicant sets the matter down for hearing expeditiously, in any event, within 15 days of the date hereof; in default, it shall stand dismissed. 5. With respect to the reinstatement of the orders of temporary injunction, the Court notes that the said orders have subsisted since 2011. Given the length of time, I am of the considered view that the parties should address the Court on the current situation regarding the properties, to obviate the Court from issuing orders in vain or in a vacuum. 6. Costs are in the cause. 17 It is so ordered **DELIVERED, DATED AND SIGNED AT NAIROBI THIS 30TH DAY OF JULY 2026 VIA MICROSOFT TEAMS.** **J. G. KEMEI** **JUDGE** **Delivered Online in the Presence of:** 1. Mr. Kang’atta for the Petitioner 2. Mr. Kinga for the Respondent 3. CA- Mr. Amos