https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2994

Mugo v Mwangi & 2 others (Environment and Land Case E027 of 2024) [2026] KEELC 2994 (KLR) (13 May 2026) (Ruling) Neutral citation: [2026] KEELC 2994 (KLR) Republic of Kenya In the Environment and Land Court at Nyeri Environment and Land Case E027 of 2024 EK Makori, J May 13, 2026 Between Boniface Mwangi Mugo Plaintiff and Margaret Gathoni Mwangi 1st Defendant Beatrice Wangari Mwangi 2nd Defendant Margaret Muthoni Wanjau 3rd Defendant Ruling 1.Before this Court is an Application filed by the 3rd Defendant/Applicant under Notice of Motion dated January 10, 2024, seeking the following Orders:a.This Honorable Court be pleased to review, vary, discharge, and/or set aside the ex parte orders that were given on 18/12/2023 and issued on 21/12/2023.b.Leave be granted to the Applicant to respond to the application dated 5/12/2023 that gave rise to the order.c.Costs be provided. 2.The application is supported by the affidavit of the 3rd Defendant/Applicant, who deposed that they were not served with the application dated 5th December 2023, and are now affected by the resultant order issued by the Court on 21st December 2023, without the consideration of the Respondents. 3.The 3rd Defendant/Applicant informed the Court that her mother, the 1st Defendant, is the one who litigated in the arbitration but is now deceased. 4.That they were not aware that the suit was dismissed, but that they should be allowed to litigate on the issue, and that it is their right to be allowed to respond to the application. 5.Further, she argued that there was no urgency in the matter that had stalled for over 27 years, which caused the applicant to fail to serve them with the application, which is unprocedural, and orders were issued without it being defended. 6.Her advocate on record was only served with the resultant order and application on 22nd December 2023 on WhatsApp. She therefore prayed that the said order be set aside and that she be allowed to respond to the said application. 7.The Court granted the 3rd Defendant the prayer to be allowed to respond to the application dated 5th December 2023, which sought the following ordersa.This application is to be certified as urgent and heard on a priority basis.b.This Honorable Court be and is hereby pleased to reinstate the Plaintiff/Applicant’s suit.c.This Honorable Court be pleased to allow the Plaintiff’s application of 16th February 2010 and have the Elders’ Award dated 17th August 2000 adopted as the Judgment of the Court.d.The costs of this application be provided for. 8.The 3rd Defendant replied vide affidavit sworn on the 11th of July 2024. 9.She deposed that the only reason the Plaintiff/Applicant is seeking reinstatement of the suit is that there is a succession cause in the Mukurweini Court touching on the subject matter of this case, not because he was interested in pursuing his claim in this court, as a period of (19) nineteen years lapsed from the reading of the award in 2004 to the filing of this application. 10.According to the 3rd Defendant, the proceedings at that land disputes tribunal were defective since she and the other co-defendant by the name Beatrice Wangari Mwangi were not allowed to participate. 11.She also contends that the application dated 16th February, 2010, which was allowed by the impugned orders, has been overtaken by events after the death of her grandmother, who was the only Defendant who appeared before the Mukurweini land dispute tribunal. That the Plaintiff should not be allowed to seek entry of judgment pursuant to the award against her deceased grandmother. 12.The 3rd Defendant deposed that she raised very serious issues in her application dated June 9, 2004, seeking to have the elders’ arbitration award set aside, as set out in her supporting affidavit. 13.Further, the Plaintiff/Applicant has not been clear about when his suit was dismissed and on what grounds. The Plaintiff/Respondent’s Replying Affidavit 14.The Plaintiff/Respondent herein swore a replying affidavit in the instant application on the 27th of May 2024 and deposed that the application is unfounded because the Defendants’ advocates on record were served with the application via WhatsApp on the 22nd December 2023. 15.That the issues that the 3rd Defendant/Applicant is purporting to raise in its application are untenable and unmeritorious for the reason that all the parties consented to submit themselves to the arbitration of the District Officer, Mukurwe-ini, and four elders on the 11th of November 1998. 16.The arbitration Award was entered on August 17, 2000, and was filed in Court and read to the parties on May 18, 2004. Subsequently, the 3rd Defendant filed an objection to the Award by application dated June 9, 2004, but never prosecuted or pursued her application. 17.Therefore, his argument is that the 3rd Defendant’s assertion that the Lands Tribunal lacked jurisdiction is an afterthought and a deliberate tactic to further delay the administration of justice. The 3rd Defendant/Applicant’s Submissions 18.Counsel for the Applicant submitted that the Land Disputes Tribunal acted beyond their mandate and therefore ultra vires. That said, the determination or decision of the elder’s award has also been defeated by the "doctrine of laches" under the Limitation of Actions Act. 19.It is submitted that at the said Mukurwe-ini land's disputes tribunal, only the Plaintiff and the 1st Defendant appeared, since the claim was purely against her. The 2nd and 3rd Defendants were included only because the deceased 1st Defendant had caused land parcel No. Githi/Kirerema/185 to be registered in the names of the three Defendants. It is contended that the said award was overtaken by events after the death of the 1st Defendant and that the suit abated. It is her view that the Plaintiff had abandoned this suit by not prosecuting it for years since 2000, and that the suit should be dismissed with costs. 20.Further, according to the 3rd Defendant, all issues have now been overtaken by events since she filed Mukurwe-ini succession cause No 9 of 2020 in the estate of her deceased grandmother Margaret Gathoni Mwangi, who was the 1st Defendant in this matter. The Plaintiff/Respondent’s Submissions 21.Counsel for the Plaintiff/Respondent submitted that the 3rd Defendant's argument that the award is ultra vires because it was issued by a Land Disputes Tribunal collapses on the ground that the suit was instituted in the High Court in 1995, not in the Land Disputes Tribunal. 22.It is further submitted that the proceedings before the Tribunal were a consensual arbitration under Order 46 of the Civil Procedure Rules. The parties exercised their autonomy in selecting their arbitrators, a process wholly distinct from the rigid 3 administrative appointment mechanism of the Land Disputes Tribunals Act, which required a gazetted panel and appointment by the District Commissioner. It is their submission that the award was rendered pursuant to a valid consensual arbitration under the court's supervision, governed by the Civil Procedure Rules, as the Defendants’ Advocate, Mr. J. S. Mwangi, was present in court for the defendants and consented to the same. 23.On the issue of laches, Counsel submitted that a party who completely abandons their claim or defence through prolonged and unexplained inaction is deemed to have forfeited their right to be heard on that issue. Section 35(3) of the Arbitration Act, 1995 provides that an application to set aside an arbitral award must be made within three months from the date of the award. And Order 46, rule 17 of the Civil Procedure Rules provides that an application to set aside an award from a court-ordered arbitration must be made within thirty (30) days after the award is filed or read, which time has already lapsed for the 3rd Defendant. 24.The Plaintiff submits that he has suffered prejudice for nearly nineteen (19) years, when the 3rd Defendant left her application to set aside the award dormant. In the meantime, the Defendants continued to enjoy the use and occupation of the suit land, notwithstanding that the Plaintiff had already been evicted, relying on the maxim that equity does not aid the indolent. 25.Regarding the ex parte nature of the impugned orders, Counsel for the Plaintiff/Applicant submitted that genuine urgency was justified by a compelling reason; that Succession Cause No. 9 of 2020 concerning the suit land had been stayed pending the outcome of this suit. The succession court was in a state of limbo, unable to proceed without a final determination in this matter. 26.Regarding the 3rd Defendant’s contention that the Plaintiff’s advocates are not properly on record for failing to seek leave, it was submitted that under Order 9, Rule 5 of the Civil Procedure Rules, a change of advocate before judgment is effected by filing and serving a Notice of Change of Advocates. An application for leave under Order 9, Rule 9 is required only when a change of advocate is sought after judgment has been entered, which had not yet occurred in this case. Thus, their notice of change of advocates is tenable in law. 27.Counsel concluded that the arbitral award dated 17th August 2000 arose from a valid consensual arbitration conducted under the Court’s supervision. The Defendants were properly joined, represented, and bound by the proceedings, and the statutory period for challenging the award lapsed. They contend that the 3rd Defendant’s application is time-barred and undermined by her own prolonged failure to prosecute the application to set aside the award, and pray that the orders of 18th December 2023 be confirmed and upheld. Analysis and Determination 28.The Applicants in the instant application have sought the order of the Court issued on 21st December 2023 to be set aside and for them to be allowed to respond to the Plaintiff’s application that led to the issuance of the order dated 5th December 2023. The said orders issued by Hon. Justice Martin Muya read as follows:a.THAT this Honourable Court be and is hereby pleased to reinstate the Plaintiff/Applicant’s suit.b.THAT this Honourable Court be and hereby pleased to allow the Plaintiff’s application of 16th February 2010 and have the Elders’ Award dated 17th August 2000 adopted as the Judgment of the Court. 29.The Plaintiff’s Application dated 5th December 2023 sought to reinstate the suit, attributing the failure to prosecute to his previous advocates on record, who failed to attend Court on the scheduled dates. The Application also sought to adopt the Elders’ Award dated 17th August 2000 as the judgment of the Court, which the 3rd Defendant had previously objected to but did not prosecute her application. 30.Order 51 rule 15 of the Civil Procedure Rules provides that the Court may set aside an order made ex parte. An application to set aside an order of the Court falls under the review powers of the Court. The statutory provisions that govern orders of review are Section 80 of the Civil Procedure Act, Cap 21, and Order 45 of the Civil Procedure Rules, 2010. Section 80 of the Act provides that:“Any person who considers himself aggrieved—(a)by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or(b)by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.” 31.Order 45 Rules 1 of the Civil Procedure Rules (2010) provides that:“Any person considering himself aggrieved—(a)by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or(b)by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.” 32.The elements necessary for orders of review have been widely elaborated by the Courts. In the case of Francis Njoroge v Stephen Maina Kamore [2018] eKLR, the Court held that:“Therefore, Order 45 of the Civil Procedure Rules, 2010 is very explicit that a court can only review its orders if the following grounds exist: -(a)There must be discovery of a new and important matter which after the exercise of due diligence, was not within the knowledge of the applicant at the time the decree was passed or the order was made; or(b)There was a mistake or error apparent on the face of the record; or(c)There were other sufficient reasons; and(d)The application must have been made without undue delay.” 33.The requirements for review are therefore the discovery of a new and important matter that could not have been known at the time the decree or order was issued, a mistake or error apparent on the face of the record, or any other sufficient reason. In the present case, the reason given is that the Defendants were not given an opportunity to defend the application and that the 3rd Defendant is aggrieved by the entry of the Elders Award as judgment. 34.From the record of the Mukurweini Land Dispute Tribunal, it is evident that for the Defendant’s side, only the 1st Defendant was present, whom the 3rd Defendant has informed the Court that she is now deceased. 35.Article 50(1) of the Constitution provides for a fair hearing with regard to any dispute that has to be resolved in accordance with the law. It states as follows:“ 50.(1)Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a Court or, if appropriate, another independent and impartial tribunal or body.” 36.The Court in the case of Safaricom Limited v Josenga Company Limited & 4 others [2021] eKLR, which the Ex parte Applicant has relied upon, noted and quoted as follows:“On the issue of fair hearing, the Court notes that the right to fair hearing is a principle of Natural Justice and the same cannot be limited and or derogated ………. While the wording of Article 50 of the Constitution on the right to a fair hearing prima facie seems to focus on criminal trials it’s not lost that fair trial in civil cases includes: the right of access to a Court, the right to be heard by a competent independent and impartial tribunal, the right to equality of arms, the right to adduce and challenge evidence, the right to legal representation, the right to be informed of the claim in advance before the suit is filed, the right to a public hearing, and the right to be heard within a reasonable time.” 37.Since the 3rd Defendant was not heard by the Land Dispute Tribunal, and it has since been phased out, I believe she was denied a fair hearing. This is sufficient reason to set aside the Court's order adopting the Award as the Court's final verdict, thereby allowing the suit to be reheard. The 3rd Defendant has the right to rebut and to a fair hearing. Therefore, I conclude she should be given the chance to exercise these rights. 38.Consequently, the application dated January 10, 2024, is hereby allowed with costs. RULING DATED, SIGNED, AND DELIVERED AT NYERI THIS 13TH DAY OF MAY 2026.____________________________E. K. MAKORIIn the presence of:Mr. Komu for the PlaintiffMr.Baaru for the DefendantKendi: Court Assistant