Mulong & 82 others v General & 9 others (Environment and Land Petition E011 of 2025) [2026] KEELC 4839 (KLR) (24 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KITALE** **ELC PETITION NO. E011 OF 2025** **PATRICK SIMIYU MULONG & 82 OTHERS---------------PETITIONERS** **VERSUS** **HON. ATTORNEY GENERAL-----------------------------1ST RESPONDENT** **SETTLEMENT FUND TRUSTEES------------------------2ND RESPONDENT** **DIRECTOR OF LAND ADJUDICATION--------------3RD RESPONDENT** **COUNTY LAND ADJUDICATION &** **SETTLEMENT OFFICE, TRANS NZOIA---------------4TH RESPONDENT** **LAND REGISTRAR, TRANS NZOIA COUNTY------5TH RESPONDENT** **AGRICULTURAL DEVELOPMENT** **CORPORATION---------------------------------------------6TH RESPONDENT** **AND** **KENYA SEED COMPANY LIMITED--------------1ST INTERESTED PARTY** **KAMUNJE FARM LIMITED----------------------2ND INTERESTED PARTY** **ETHICS & ANTI-CORRUPTION** **COMMISSION----------------------------------------3RD INTERESTED PARTY** **KENYA NATIONAL HUMAN RIGHTS &** **EQUALITY COMMISSION------------------------4TH INTERESTED PARTY** **RULING** 1. What is before me for determination is the 1st Interested Party’s Notice of Motion dated **20/5/2026** in which the applicant is seeking the following orders:- 2. **…spent** 3. **THAT this Honourable Court be pleased to set aside proceedings of 12/5/2026 with all consequential and/or subsequent orders arising therefrom.** 4. **THAT this Honourable Court be pleased to grant the 1st interested party an opportunity to be heard on the application.** 5. **Any other order as this Honourable Court may deem fit and just to so grant in the circumstances.** 6. **THAT costs of this application be in the cause.** 7. The application is based on the grounds on the face of it, mainly that even though the application dated **24/12/2025** was scheduled for hearing on **12/5/2025**, the 1st interested party’s counsel did not attend court on the said date as the matter had been inadvertently diarized wrongly, on which basis counsel travelled to attend to other official engagements. 8. The applicant further states that as a result, the matter proceeded for hearing of the application, as a result of which some orders were issued in favour of the petitioners/respondents, which orders are adverse to the 1st interested party. 9. The applicant further contends that the orders that were issued will interfere with agronomic practices required in cultivation, propagation, and isolation of various seed varieties as required under the Seed and Plant Varieties Act, which in turn will affect the 1st interested party’s core mandate to the nation to avail certified seed to the market. 10. It is the applicant’s further contention in this application that the petitioners did not give full disclosure to the court that it is in fact the 1st interested party that has been in possession of the land parcels which are the subject of this petition for over **20 years**, and that it is used for seed production which is key for the food security of the country. 11. The application is supported by an affidavit of even date sworn by Ms. Wilkister M. Simiyu, Advocate, setting out the facts giving rise to the same. The application is further buttressed by a supplementary affidavit by the same deponent dated **10/6/2026** in which she reiterates the averments in the supporting affidavit and further states that even though the 1st interested party was served on **6/1/2026** for the hearing of this application on **10/2/2026,** the court process was received by an officer who left the organization and documentation was not captured properly for tracking and attention. 12. In a replying affidavit sworn on **4/6/2026**, the petitioners/respondents herein opposed the application to set aside the proceedings of **12/5/2026** together with the consequential orders thereof. 13. The deponent avers that he is fully aware that the application was served on **6/1/2026** and that since **6/1/2026**, to date, no response has been filed by the applicant to oppose the application dated **24/12/2026**. The deponent further expressed concern that since constitutional petitions have strict timelines, allowing the application as prayed would delay the determination of the petition. 14. When this matter came up for hearing of the subject application on **16/6/2026**, Ms Chilaka, learned counsel for the 1st, 2nd, 4th, and 5th respondents, as well as Ms. Obino for the 3rd respondent, intimated to the court that they are not opposed to the application and the orders sought. It logically follows that the contest is between the 1st interested party represented by Ms. Simiyu and the petitioners herein represented by Mr. Kisaka. 15. Ms. Simiyu, learned counsel for the 1st interested party, urged the court to allow the application in the interests of justice. Counsel submitted that the orders sought and granted were so granted without full disclosure of material facts, that the 1st respondent was in possession of the suit property. Counsel further contended that no prejudice would be caused to the petitioners who have not been on the suit property. 16. On his part, Mr. Kisaka for the petitioners/respondents took the court through a chronology of events since the filing of this petition and the impugned application dated **24/12/2025**. Counsel told the court that the said application was served on all the parties, including the 1st interested party. That the parties came to court for hearing of the said application on **10/2/2026**. That at that point, the 1st interested party had not entered any appearance and neither was there any response on record for the 1st interested party. Counsel further told the court that to date, there is no response to their application. The learned counsel further submitted that without a response, it is hard for respondents to concede to the application made by the 1st interested party. Mr. Kisaka further submitted that all the parties are equal before the law and the 1st interested party should not seek special treatment from the court. Counsel thus urged the court to dismiss the 1st interested party’s submissions. 17. I have carefully considered the application together with the rival affidavits on record. I have equally considered the oral arguments by counsel as well as the applicable law. 18. The application is brought under **Sections 1A, 1B, 2, 3A,** and **63(e)** of the Civil Procedure Act, **Order 51 Rules 1** and **15** of the Civil Procedure Rules as well as **Article 159(2) (a)** and **(d)** of the Constitution, **2010**. 19. What is sought to be set aside vide the 1st interested party’s application are the proceedings of this court of **12/5/2026**. The court record shows that on the said date the matter was coming up for mention for directions. This is what the court noted on record: *“It appears that none of the respondents and the interested parties is opposed to the application dated* ***24/12/2025****.* ***Prayers No. 2*** *and* ***4*** *are allowed to last for one year. The respondents and the interested parties are granted* ***60 days*** *to put in their responses to the main petition”* 1. On the material day, representations were Mr. Kisaka for the petitioners, Ms. Njagah holding brief for Ms. Obina for the 3rd respondent, Ms. Mulomi holding brief for Ms. Chilaka for the 1st, 2nd, and 4th respondents, while Ms. Baithalu held brief for Ms. Kavita for the 3rd interested party. There was no representation for the 1st, 2nd, and 4th interested parties. Further, from the record, other than Mr. Kisaka, all the other counsel on record indicated that they had not seen the application. It is not clear whether they were referring to the impugned application or whether they were referring to the application by the Agricultural Development Corporation dated **8/5/2026**, which my brother Justice C.K. Nzili dismissed for being improperly before the court. 2. What is clear, though, is that the court deemed the application dated **24/12/2025** to be unopposed, thus allowing it in the terms aforesaid. 3. In the court’s view, this case is a classic example of what happens when advocates do not take court business seriously. The advocates who are officers of the court and, by extension, ministers of justice fail in their duty when they fail to take their briefs seriously. 4. This is particularly the case for state and other in-house counsel who appear on behalf of the government through the office of the Attorney General and other state agencies. Some of them are lethargic and adopt a cavalier attitude towards work, yet they occupy a space of unparalleled importance in the protection of public property and the protection of individual rights and freedoms. It is a trend that requires introspection and, if it is a case of being understaffed and less motivated, the same must be addressed with urgency. 5. Turning to the merits or otherwise of the application before me, counsel for the 1st interested party swore an affidavit regretting that the court date (**12/5/2026**) was inadvertently not diarized and she travelled to attend to other official duties. She urges the court to allow the application and set aside the proceedings as well as the consequential orders therefrom. 6. In a rejoinder, counsel for the petitioners pointed out to the court that to date, there are no responses filed to their application of **24/12/2025** which the court allowed. Counsel further urged the court not to give special treatment to the 1st interested party but to dismiss the application. 7. I have given deep judicial thought to this application as well as the arguments by the two counsel. The primary role of the court, as observed in the case of ***Patel -vs- E. A Cargo Handling Services Ltd [1974] EA 75,*** is to do justice. 8. In my view, the jurisdiction of the court to set aside proceedings and the orders arising therefrom is akin to the jurisdiction of the court to set aside or vary a judgment in default of appearance. It is a discretionary jurisdiction whose statutory foundation is **Order 10 Rule 11** of the Civil Procedure Rules, **2010**. 9. The principles that guide the court in the exercise of that discretion have crystallized from judicial authorities. In the case of ***Shal vs Mbogo & Another (1967) E. A 116***, the court laid down the fundamental test that the discretion is intended to be exercised to avoid injustice, or hardship resulting from an accident, inadvertence, or excusable error, but it is not designed to assist a person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice. 10. I have looked at the impugned proceedings of **12/5/2026**. I am unable to fault counsel for the petitioners as all he did was to represent his clients. I cannot fault the court either because it is apparent that the court was driven by the desire to get the application dated **24/12/2025** out of its way, especially now that there were no responses to the same. I am also inclined to give counsel for the 1st interested party the benefit of doubt when she deposes in her sworn affidavit that the matter had been misdiarized. 11. Putting all these facts into perspective and further noting that the matter had not been listed for hearing of the application on **12/5/2026**, but rather for mention for directions; I am inclined to exercise my discretion in favour of the 1st interested party by setting aside the proceedings of **12/5/2026** and the consequential orders therefrom, which I hereby do. 12. The corollary to this is that it sets the parties back to the *status quo ante* before the filing of the application dated **24/12/2025**. 13. Alive to the petitioners' desire to prosecute their petition without further delay, this Court will give directions on the said application and, where possible, engage all the parties on the possibility of compromising the application with a view to quickly disposing of the petition. 14. Finally, I make no orders as to costs given the circumstances of this case. 15. Orders accordingly, **Ruling dated, signed,** and **delivered** via **Microsoft Teams/Open Court** at **Kitale** on this **24th** day of **July 2026.** **In the presence of:** Court Assistant - Matui/Nancy Mr. Kisaka for the petitioners Mr. Karani for the 1st interested party Ms. Kavita for the 3rd interested party  **HON. G.M. GITONGA** **JUDGE, ELC KITALE.**