https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3571

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND COURT AT NAIROBI** **ELC NO. 54 OF 2007** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_­­­\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **CHARLES OCHANDA MUMANYI - 1ST PLAINTIFF /APPLICCANT** **MARY MORAA NYAOSA MUMANYI - 2ND PLAINTIFF/APPLICCANT** **VS** **BRUCE MOKAYA - 1ST DEFENDANT/RESPONDENT** **PAMELA MOKAYA - 2ND DEFENDANT/RESPONDENT** **RULING** **(In respect of the Plaintiff’s Application dated 29/5/2025)** **Background** 1. The subject application for determination is the Notice of Motion dated 29/5/2025 filed by the Plaintiffs. The application is expressed to be brought under Section 1 (A), 1B, 3 & 3A of the Civil Procedure Act and Order 12 Rule 3 & 7 as well as Order 51 of the Civil Procedure Rules 2010. The Plaintiffs/Applicants prays for the following orders; 2. That the Honourable Court be pleased to set aside the Orders dismissing the suit entered on the 12/2/2025 for want of attendance/for want of prosecution. 3. That the costs be in the cause. 4. The Application is, on its face, supported by the affidavits of N.W. Amolo, the Applicants’ Counsel, and the 2nd Plaintiff, all sworn on 29/5/2025. Counsel avers that the suit was dismissed on 12/2/2025 for his non-attendance and that of his clients. He states that his absence was inadvertent, arising from failure to diarise the matter after the Ruling delivered on 7/10/2024. He further states that, having inadvertently failed to diarise the matter, he failed to inform the Applicants of the hearing date. He asserts that his mistake should not be visited on the Plaintiffs. 5. Counsel further avers that it was only when the 2nd Plaintiff passed by his offices to enquire about the progress of the matter that he remembered it had been slated for hearing. However, he could not recall the date. He states that it was only when he checked the Court Tracking System (CTS) that he realised the suit had been dismissed for non-attendance. He asserts that the Plaintiffs are keen to prosecute the suit; hence, the application should be allowed. 6. In support of the application, the 2nd Plaintiff states that she purchased a parcel of land known as LR No. 1160/617, measuring 1.2 acres, jointly with her husband, the 1st Plaintiff herein, from Mr Samuel Mose Nyamato. However, she was unable to pay the full purchase price due to financial constraints. She then sold half (1/2) an acre to the Defendants, leaving her with a portion measuring 0.7 acres. While installing a fence, the Defendants encroached on her portion and expanded their own by approximately 0.5940 acres, rather than 0.5 acres. 7. She asserts that they have never been indolent in prosecuting the claim. She avers that upon filing the suit on 23/4/2007, they filed a Notice of Motion dated 30/10/2007 seeking orders for the Government Surveyor to file a report showing the dimensions and extent of their subject property and that of the Defendants. Following negotiations, the parties recorded a consent in respect of the application on 26/2/2009. She avers that subsequently; the matter was slated for hearing on 18/11/2022. However, on that date, the 1st Plaintiff testified but was stood down to allow room for negotiations. 8. The deponent deposes that the matter was again scheduled for hearing on 6/5/2023, but the Court referred it to Court-Annexed Mediation. A Mediation Settlement Agreement was executed on 21/8/2023. However, the Plaintiffs, aggrieved by the Agreement on the ground that the Mediator failed to address the suit's costs and damages for trespass to their parcel for over 17 years, challenged it by application dated 13/12/2023. The Court, in its Ruling delivered on 7/10/2024, set aside the Mediation Agreement. She avers that it was during the delivery of that Ruling that the Court fixed the hearing date of 12/2/2025. 9. She asserts that their advocate inadvertently failed to inform them of the hearing date. Unfortunately, the 1st Plaintiff fell ill, and they channelled their energies into his treatment, both in and out of the country. Hence, their non-attendance at the hearing. **The Defendants’ Replying Affidavit** 1. The application is opposed by the Defendants, as set out in the 1st Defendant’s Replying Affidavit, sworn on 16/7/2025. The deponent avers that the application is unmerited, as the Plaintiffs, despite commencing these proceedings in 2017, have not been prosecuting the suit. He avers that the hearing date was set in Court on 7/10/2024, when the Court delivered its Ruling on the Plaintiffs’ application dated 13/12/2023. He contends that it is ironic that the Plaintiffs failed to attend Court on 12/2/2025, when the matter came up for hearing, yet they had been attending Court in person to prosecute their application to set aside the Mediation Settlement Agreement. He further contends that their non-attendance was intentional and inexcusable. 2. He contends that Counsel’s assertion that he did not diarise the matter is without merit, as the date was agreed by the Advocates for both parties. He further contends that, in any case, the Plaintiffs have not demonstrated the steps they took to ensure that their suit is heard expeditiously. 3. The 1st Defendant further contends that there has been inordinate delay in filing the instant application, as the suit was dismissed on 12/2/2025 and the application was filed on 29/5/2025. The delay in filing the application has not been sufficiently explained, as it is not possible that, since 7/10/2024, the matter only crossed the Plaintiffs’ and their Counsel’s minds on 26/5/2025. 4. The deponent further avers that the Plaintiffs’ suit is not merited in any case, and that reinstating it would be a waste of precious judicial time. He argues that both parties purchased their respective parcels from the same Vendor and that, hence, the boundary dispute cannot be determined in the absence of the initial proprietor. He further argues that, in any case, the boundary dispute ought to be referred to the Land Registrar in the first instance in accordance with Sections 18 and 19 of the Land Registration Act. He argues that the Plaintiffs are only using the Court process to frustrate him; hence, the application is an abuse of the Court process and ought to be dismissed with costs. **The Plaintiffs’ Further Affidavit** 1. The 2nd Plaintiff filed a Further Affidavit, deposed on 15/9/2025, in response to the Defendants’ assertions in the Replying Affidavit. The 2nd Plaintiff refutes the Defendants’ assertion of indolence in prosecuting the suit and refers to her dispositions in the supporting affidavit to that effect. She argues that the failure to attend the hearing on 12/2/2025 has been sufficiently explained in the two supporting affidavits. She maintains that they remain keen to prosecute the suit, hence the instant application. She invites the Court to exercise its discretion and allow the application, even with costs, to hear and determine the contentious dispute herein. **Directions on written submissions** 1. The Court directed that the application be canvassed by way of written submissions. Both parties complied. The Plaintiffs/Applicants filed submissions dated 31/10/2025 and 25/11/2025, whereas the Defendants/Respondents filed submissions dated 6/11/2025. The Court has read and considered the parties' submissions in reaching its determination. **Analysis and Determination** 1. I have considered the application, the responses made, and the rival submissions. I have also looked at the Court record. The issues that commend themselves to me for determination, are: 1. Whether the Court should reinstate the suit as prayed. 2. Who should bear the cost of the application? **Whether the Court should reinstate the suit as prayed** 1. 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 confers on the Court inherent power to make such orders as may be necessary to achieve the ends of justice. The considerations the Court should bear in mind when exercising discretion were emphasised in the case of Esther Wamaitha Njihia & 2 Others -vs- Safaricom Ltd [2014] eKLR, where, citing relevant cases on the issue, 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. In the case of Lucy Bosire –vs- Kehancha Div. Land Dispute Tribunal and 2 others [2013] KEHC 681 (KLR), the Court held as follows: - “The principles guiding the setting aside ex parte orders are trite that the Court has wide powers to set aside such ex parte orders save that where the discretion is exercised the Court will do so on terms that are just. In CMC Holdings Limited vs. Nzioki [2004] 1 KLR 173 it was held as follows: - “That discretion must be exercised upon reasons and must be exercised judiciously…... In law the discretion that a Court of law has, in deciding whether or not to set aside ex parte order was meant to ensure that a litigant does not suffer injustice or hardship as a result of amongst others an excusable mistake or error. It would not be proper use of such discretion if the Court turns its back to a litigant who clearly demonstrates such an excusable mistake, inadvertence, accident or error. Such an exercise of discretion would be wrong principle...The answer to that weighty matter was not to advise the appellant of the recourse open to it as the learned magistrate did here. In doing so she drove the appellant out of the seat of justice empty handed when it had what it might have well amounted to an excusable mistake visited upon the appellant by its advocate.” 1. It follows that the decision whether to set aside an ex parte order is discretionary. The discretion is intended to be exercised to avoid injustice and hardship arising from accident, inadvertence, or excusable mistake or error, but not to assist a person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice. See Shah v Mbogo & Another (1967) EA 116. 2. In the present case, Counsel for the Plaintiff/Applicants deposed that he inadvertently failed to diarise the matter when the hearing date was given in Court, and consequently failed to inform the Applicants of the hearing date. He further deposed that it was only when the 2nd Plaintiff passed by his offices to enquire about the progress of the matter that he remembered the matter had been slated for hearing, but he could not recall the date. He stated that it was only when he checked the Court Tracking System (CTS) that he realised the suit had been dismissed for non-attendance. 3. On their part, the Plaintiff/Applicants assert that their advocate inadvertently failed to inform them of the hearing date, resulting in their non-attendance. They aver that, although they have been attending Court and following up on the prosecution of their suit, the 1st Plaintiff's illness distracted them, and that they channeled their energies towards his treatment in and out of the country, as evidenced by the medical records and travel documents adduced herein. 4. From the chronology of events leading to the striking out of the suit, I note that the Plaintiffs/ Applicants have been diligent in prosecuting their suit. Applying the principle established in Shah vs Mbogo (1979) EA 116, cited above, I am persuaded that the reason given by the Plaintiff’s Counsel for his failure to attend Court on 12/2/2025 is plausible. 5. Time and again the Courts have held that mistakes of advocates ought not be visited on their clients. In the celebrated case of Philip Chemwolo & Another v. Augustine Kubede [1982-1988] KAR 103 at 104, Apaloo J.A stated: - “Blunders will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case heard on merit. I think the broad equity approach to this matter is that unless there is fraud or intention to overreach, there is no error or default that cannot be put right by payment of costs. The Court as is often said exists for the purpose of deciding the rights of the parties and not the purpose of imposing discipline.” 1. Under Article 50 (1) of the Constitution, every party has a right to be heard, and the fundamental duty of the Court is to ensure that parties seeking justice can access justice by affording them that opportunity to be heard. 2. For justice to be done to a party, the Court needs to ensure that an excusable mistake does not consign the affected party’s case to oblivion, irrespective of its merits. The Court is obliged to consider all the surrounding circumstances before taking the drastic step of shutting the doors of justice upon a litigant, thereby driving the litigant out of the seat of justice empty-handed. 3. I also note that the Plaintiffs filed the instant application without inordinate delay. The application was filed about 3 months after the dismissal of his suit. As often stated, inordinate delay is assessed on a case-by-case basis. 4. In light of the foregoing reasons, I find that this case warrants the exercise of the Court’s discretion in favour of the Plaintiffs/Applicants. Moreover, the Court is mandated to ensure substantive justice in light of the Constitutional provisions of Article 159(2)(d) of the Constitution. 5. It is also not lost on the Court that dismissal of a suit is a draconian act that drives a litigant away from the seat of justice, and, as such, discretion ought to be exercised judiciously. This position was amplified in the case John Nahashon Mwangi –vs- Kenya Finance Bank Limited (in Liquidation) [2015] eKLR as 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, in the interests of justice, I am inclined to allow the application dated 29/5/2025. 3. Accordingly, the order dated 12/2/2025, dismissing the Plaintiffs’ suit in its entirety for non-attendance, is hereby set aside, and the suit is reinstated on the condition that; 4. the Plaintiff pays the Defendant’s throw-away costs of Kshs. 30,000/= within the next 7 days. 5. The Applicants to fix the matter for hearing within the next 7 days in default the orders shall lapse. 6. It is so ordered **DELIVERED, DATED AND SIGNED AT NAIROBI THIS 10TH DAY OF JUNE 2026 VIA MICROSOFT TEAMS.** **J. G. KEMEI** **JUDGE** **Delivered Online in the presence of:** 1. Ms. Amolo for the Plaintiffs 2. Mr. Alela H/B for Mr. Momanyi for Defendants 3. CA- Ms Yvette Njoroge