https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3839

Mungai & 3 others v Mungai & 3 others (Environment and Land Appeal E026 of 2025) [2026] KEELC 3839 (KLR) (24 June 2026) (Judgment) Neutral citation: [2026] KEELC 3839 (KLR) Republic of Kenya In the Environment and Land Court at Kitale Environment and Land Appeal E026 of 2025 CK Nzili, J June 24, 2026 Between Isaac Kibe Mungai 1st Appellant John Mbugua Njoroge 2nd Appellant Benson Mwaura Mwangi 3rd Appellant Benson Waweru 4th Appellant and John Gachie Mungai 1st Respondent Kenya Women Micro-Finance Ltd 2nd Respondent Francis Mwai Kibaki 3rd Respondent Julius Onyango t/a Ugunja Auctioneers 4th Respondent Judgment 1.What is before the court is a memorandum of appeal dated 22/8/2025. The appellants, who were the plaintiffs at the lower court, had approached the court through a plaint dated 29/8/2018 seeking:a.Declaration that they are entitled to respective portions of land that they had purchased from the 1st respondent, forming part of L.R. No. Makutano/Kapsara Block 2/Turbo Munyaka/467, measuring 2/72 Ha, the suit land.b.Order that the 1st respondent be compelled to sign the relevant transfer forms and obtain Land Control Board Consent in their favour.cPermanent injunction restraining the 2nd and 5th respondents from selling by way of public auction and or in any other way interfering with the suit land. 2.Alongside the plaint, the appellants filed an application dated 29/8/2018, seeking temporary orders of injunction pending hearing and determination of the suit. That application was opposed by the 2nd and 5th respondents through a replying affidavit sworn by Dominic Ndwiga Kariuki on 22/10/2018. 3.A temporary order of injunction was also issued on 6/9/2018 pending interpartes hearing on 27/9/2018. It was eventually confirmed through a ruling dated 18/4/2019, to last until the suit is heard and determined. 4.The court record shows that after several mentions, the trial court on 25/1/2020 ordered the parties to fully comply with Order 11 of the Civil Procedure Rules within 45 days and fix the matter for hearing. A mention date for a pre-trial conference was scheduled for 20/1/2021, but the parties failed to attend court. The trial court dismissed the suit for non-attendance. 5.These developments triggered the appellants to file an application dated 22/2/2021 seeking reinstatement of the suit. The application was opposed on the grounds of opposition dated 1/3/2022 by the 2nd respondent. By a ruling dated 24/7/2025, the trial court dismissed the application leading to this application. 6.The trial court is faulted for:1.Failing to appreciate that the appellants were not aware of the hearing date of 21/1/2025, hence the non-attendance was neither deliberate nor intentional.2.Relying on extraneous facts instead of considering the circumstances of the case.3.Disregarding the well-established principles governing the exercise of judicial discretion in setting aside dismissal orders, especially when the appellants were duly represented by their advocates, who explained the reasons for their absence.4.For holding that the appellants were indolent in the prosecution of their case in the absence of any evidence of deliberate neglect or intentional abstention on their part.5.Acting contrary to the rules of natural justice.6.For wrongfully exercising its discretion, which is unlawful, unconstitutional, unfair, unjust, and oppressive.7.Approaching the matter as a disciplinarian seeking to punish the appellant for perceived laxity, instead of furthering the overriding objective of the court to facilitate just, expeditious, proportionate, and affordable resolution of disputes. 7.The appellants rely on written submissions dated 22/3/2026. It is submitted that the trial court disregarded the explanation in the affidavit of John Mbugua Njoroge and advocate Vilkister O. Akwabi, sworn on 3/2/2025, hence punishing the appellants for an honest and excusable mistake contrary to the dictates of justice. 8.Reliance is placed on CMC Holdings Ltd -vs- Nzioka [2004] 1 KLR 173, Shah -vs- Mbogo & Another [1967] 1 EA 116 (HCK), Belinda Murai & Others -vs- Amos Wainaina [1979] KECA 25 [KLR], and Philip Chemwolo & Another -vs- Augustine Kubede [1982-88] KAR 103. 9.The appellants submit that the dismissal of the suit did not resolve the substantive issues in controversy between the parties, it served no meaningful purpose as it merely deferred rather than settled the dispute, and that it would be inefficient and unduly burdensome for the appellants to initiate fresh proceedings to litigate the same issues, thereby occasioning unnecessary expenses, delay, and waste of judicial resources. 10.The appellants submit that reinstating the suit will promote substantive justice, judicial economy, and ensure that the real issues in dispute are determined. Reliance is placed on Cosmas Mrombo Moka -vs- Co-operative Bank of (K) Ltd & Another [2018] eKLR. 11.Further, the appellants submit that, in the broader interest of justice, the appeal should be allowed; otherwise, there will be no prejudice to the respondents. Reliance is placed on Nahashon Mwanig -vs- Kenya Finance Bank Ltd (in liquidation) [2015] eKLR. 12.The appellants submit that they only learned of the dismissal on 3/2/2025, hence there was no inordinate delay by any standard. Reliance is placed on Edney Adaka Ismail -vs- Equity Bank Ltd [2014] eKLR. 13.The 2nd respondent relies on written submissions dated 31/2/2026. It is submitted that the suit, which was filed on 29/2/2018, was dismissed on 21/1/2025 for non-attendance. The 2nd respondent submits that not all mistakes of advocates can pull litigants out of the mud they drag them on, as was held in Tana and Athi Rivers Development Authority -vs- Jeremiah Kimigho Mwakio & 3 others [2015] KECA 674 (KLR), that mistake of counsel is not a blanket excuse, and that the suit belongs to a litigant and not the lawyer, who has a corresponding duty to follow up his case. 14.The 2nd respondent submits that the appellants acted in bad faith and with a lack of candour, by giving false information regarding service, claiming loss of contact, and being dishonest in the application and also in this appeal, and a court should not aid a party who approaches it without candour. 15.Again, the 2nd respondent submits that the trial court decision cannot be faulted, for it exercised its discretion properly by considering all the relevant factors, including the history of repeated non-attendance, the previous reinstatement, lack of compliance with court directions, lack of sufficient cause, and the overall objective of expeditious justice. Reliance is placed on Gideon Sitelu Konchella -vs- Daima Bank Ltd [2013] eKLR. 16.The role of this court is to reconsider, re-evaluate, and re-analyse the record of the lower court and make an independent conclusion on both facts and the law. See Selle & Another -vs- Associated Motor Boat Co. Ltd & Others [1968] EA 123, Peters -vs- Sunday Post Limited [1958] EA 424. 17.The single issue for the court’s determination is whether the trial court exercised its discretion fairly, lawfully, and reasonably in disallowing the reinstatement of the appellants’ suit, which had been dismissed on 21/1/2025. 18.The court record shows that after the ruling of 27/9/2022, on 23/11/2022, the appellants sought to amend the plaint. An order was made to file a formal application by 25/1/2023 and 15/2/2023; no such application had been made. Learned counsel Mr. Teti for the appellants sought a hearing date on 15/2/2023 and again on 26/4/2023. A hearing date for 6/12/2023 was scheduled. Later, on 3/7/2024, Mr. Teti once again sought leave to amend the plaint. Leave was again granted to file the application within 14 days. 19.By 25/9/2024, none had been filed. 7 more days were granted, within which to do so. By 30/10/2024, none had been filed or served. The court granted a hearing date for 21/1/2025. Come 21/1/2025, there had been no compliance. Instead, Miss Akwabi, for the appellants, told the court that the date had been taken ex parte, she had lost touch with the appellants, and that she needed time to file a formal application to cease acting for them. 20.Learned counsel for the 2nd - 5th respondents sought dismissal of the suit for non-attendance. The trial court proceeded to do so for lack of sufficient reasons to warrant an adjournment, and for want of an affidavit of service showing that the appellants had been sufficiently notified of the hearing date. 21.The court record shows that this is the second time the suit has been dismissed for non-attendance, given the orders of 20/1/2021, and the ruling of 20/7/2022. In the said ruling, the suit had been reinstated on the condition that the appellants take appropriate steps to list the matter for hearing within 90 days. 22.Dismissal of a suit has been termed a draconian measure. In deciding on whether or not to reinstate a dismissed suit for non-attendance, courts look at whether there is sufficient cause shown for non-attendance, the interests of justice, and the prejudice to be suffered by the opposite party as compared to the applicant. 23.The discretion as held in Shah -vs- Mbogo [1979] EA 116, is intended to be exercised to avoid injustice or hardships resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist a person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the cause of justice. 24.Order 12 Rule 3 of the Civil Procedure Rules provides that if on the day fixed for hearing and the suit has been called for hearing outside the court, and only the defendant attends, the suit shall be dismissed except for good cause to be recorded by the court. 25.Order 12 Rules 7 of the Civil Procedure Rules provides that the court which has made the dismissal order may set aside or vary the orders upon such terms as are just. The trial court, from the court record, found no reason to adjourn the suit. Thereafter, an application was filed, supported by two affidavits. Miss Akwabi swore an affidavit that her law firm had not informed the appellants of the hearing date. She swore that her law firm had lost the office file and the appellants’ contacts in October 2024. However, her affidavit was silent on what efforts the office made to use other means to trace the appellants. 26.On his part, John Mbugua Njoroge says that his advocates on record were unable to contact or inform them of the hearing date. The affidavit is also silent on the efforts made by the appellants to visit or contact their lawyers, including the last time they visited or communicated to know the progress of the case. 27.The two supporting affidavits are silent on the previous reinstatement of the suit, where Mr. John Mbugua swore an affidavit on 22/12/2021, blaming Miss. Arunga, advocate then on record, for not informing them of the hearing date. 28.It is the primary duty of the plaintiffs to take steps to progress their case since they are the ones who dragged the defendants to court, as held in Utalii Transport Co. Ltd & Others -vs- NIC Bank & Another [2014] eKLR. 29.Further, it is also the duty of the parties to assist the court in the adjudication on the matters brought before it expeditiously, as held in Gideon Sitelu Konchella -vs- Daima Bank Ltd (supra), citing with approval Mobil Kitale Service Ltd -vs- Mobil Oil (K) Ltd [2004] eKLR, that injustice by delay would be a thing of the past if matters are disposed of expeditiously. 30.The 2nd - 5th respondents vide a replying affidavit of Javan Derek, opposed the notice of motion dated 15/2/2025. They alluded to the fact that on 21/1/2025, the appellants’ counsel tried to mislead the court, yet there was service of a hearing notice as per an affidavit of service of A.G. Kidiavai, attached as JD-(1). The service of the hearing notice was effected on 31/10/2024 to the known email of the appellants’ law firm. 31.Between 31/10/2024 and 21/1/2025, the appellants’ counsel had sufficient time to use whatever means they could to notify the appellants of the impending hearing date. Even if the physical file had been misplaced, the appellants’ counsel still had the hearing notice. 32.The replying affidavit also attached a ruling in the previously dismissed and reinstatement as an annexure marked JD-(2), followed by mention for compliance on 23/11/2022, 15/2/2023, 26/4/2023, 6/12/2023, 3/7/2024, 24/7/2024, 25/9/2024, and 30/10/2024, which preceded the events of 21/1/2025. There was no further affidavit sworn to counter all these facts showing lethargy on the part of the appellants and how the course of justice had been delayed for lack of action. 33.The replying affidavit in paragraphs 16-29, step by step, lays the blame on the appellants and the law firm(s) representing them for giving falsehoods, lack of sincerity, failure by the appellants as litigants to exercise their responsibilities, disregard of court directives, laxity, and lack of vigilant, leading to inability for the court to pull them out of the mud they deliberately led themselves into. 34.Based on the foregoing uncontested facts, the 2nd to 5th respondents had urged the trial court, guided by CMC Holdings Ltd -vs- Nzioka (supra) and Mrombo Moka -vs- Co-operative Bank of (K) Ltd (supra), to find no fault in the lower court ruling. Equally, the respondents rely on John Nahashon Mwangi -vs- Kenya Finance Bank Ltd (in liquidation) [2015] eKLR. 35.In this appeal, the 2nd - 5th respondents urge the court to find that no sufficient cause was shown for reinstatements, there was a pattern of delay and indolence, the dismissal was proper and justified, and that the alleged mistake of counsel cannot be used as a blanket excuse. Reliance is placed on Utalii Transport Co. Ltd & Others -vs- NIC Bank (supra), Bi-Mach Engineers Ltd -vs- James Kahoro Mwangi [2011] eKLR, Edney Adaka Ismail -vs- Equity Bank Ltd (supra), Tana and Athi Rivers Development Authority -vs- Jeremiah Kimigho Mwakio (supra). 36.The appellants, on the other hand, urge the court to look at the wider interest of the court’s role to dispense substantive justice as opposed to exercising discipline on the parties at the altar of justice. The trial court is being faulted for overlooking what the appellants term as an honest and excusable mistake, which arose from a failure of communication occasioned by the loss of contact with their advocates on record, making them unaware of the hearing date. 37.The appellants rely on Belinda Murai & Others -vs- Amos Wainaina [1979] KECA 25 [KLR] and Philip Chemwolo & Another -vs- Augustine Kubede (supra), that mistakes of counsel should not deprive innocent litigants from the seat of justice. 38.The appellants rely on Cosmas Mrombo Moka -vs- Co-operative Bank of (K) Ltd (supra), Nahashon Mwangi -vs- Kenya Finance Bank Ltd (supra), and Edney Adaka Ismail -vs- Equity Bank Ltd (supra), that courts should sparingly dismiss suits and must consider reasonable grounds of reinstatement. 39.In this appeal, the appellants solely blame their advocates for non-attendance, which led to the dismissal, hence the plea that the mistake of advocates ought not to be visited upon them. That school of thought is clearly supported by the case law of Pithon Waweru Maina -vs- Thuka Mugiria [1983] KECA 117 and Patriotic Guard Ltd -vs- James K. Sambu [2018] eKLR. 40.There is also another school of thought that a litigant also has a duty to follow up on his case to its logical conclusion, as was held in Savings & Loan Ltd -vs- Susan Wanjiru Muritu Milimani HCCC No. 397 of 2002. 41.In Mobil Kitale Service Ltd -vs- Mobil Oil (K) Ltd (supra), Warsame J, as he then was, said that courts are under a lot of pressure from backlogs and increased litigation, and therefore, it is in the interest of justice to have litigation conducted expeditiously and efficiently. The court held that the delay, negligence, laxity, and indifference of the plaintiff should not and cannot be placed at the doorstep of the defendant, and that the consequences must be placed on the plaintiff’s shoulders. 42.In Sadi -vs- Kenya Ports Authority Civil Appeal No. E122 of 2023 [2026] KECA 642 [KLR] (25th March 2026) (Judgment), the court said that an appellant court will only interfere as held in Mbogo & Another -vs- Shah [1968] EA 93, in the trial court’s exercise of discretion, unless it is shown that the discretion was exercised in a manner that is clearly wrong. 43.The issue I must address is whether, based on the facts before the trial court, it exercised its discretion properly in declining to reinstate the appellants’ suit. 44.As a starting point, the application for reinstatement had been filed under Order 12 Rule 7 of the Civil Procedure Rules, which confers discretion upon the court, when sufficient cause is shown to make such orders as may be necessary to secure the expeditious hearing of the suit. 45.Order 17 of the Civil Procedure Rules does not appear among the orders specified in Order 43 Rule 1 of the Civil Procedure Rules. It means, as held in San Pac Ltd -vs- Stanbic Bank Ltd [2023] KECA 960 [KLR], that any decision arising from Order 17 of the Civil Procedure Rules is only appealed against with leave of court. This court has not seen such a leave obtained to appeal to it. Failure to do so, as held in Kakuta Maimai Hamisi -vs- Peris Pesi Tobiko & Others [2013] eKLR, is a jurisdictional issue that cannot be cured by the invoking Article 159(2) (b) of the Constitution. See also Peter Nyaga Muvake -vs- Joseph Mutunga [2015] eKLR. 46.Coming to whether sufficient cause had been shown by the appellants, which the trial court overlooked, ignored, or fell into error, the court in Kamau & Another -vs- Inspector General of Police & Another [2026] KEHC 1038 [KLR] discussed what amounts to sufficient cause. 47.It depends on the circumstances of each case. It connotes an explanation of such quality or value as would justify setting aside the order of dismissal. It must be a reason that is adequate in law, showing why the appellant’s request to set aside the order of dismissal should be granted. 48.Equity aids the vigilant, but not the indolent. Delay defeats equity. Lord Camden in Smith -vs- Clay [1767] held that nothing calls forth a court into activity but conscience, good faith, and reasonable diligence. 49.In this appeal, the appellants have been blamed for inaction, lethargy, lack of candour, and a lack of good faith to have been entitled to equitable relief, even if they had a good case. The court record shows several instances after the suit was reinstated, in which the appellants failed to comply with court directives to fast-track the hearing of the matter within 90 days. 50.In Tana Teachers Co-operative Savings Society Ltd -vs- Adrian Muchiri [2018] eKLR, the court held that a party cannot egregiously fail or refuse to comply with court directions claiming that the said directives were salutary and not accompanied by any sanction, and hope to seek refuge in the overriding principle. 51.In Said Sweilem Gheithan Saanum -vs Commissioner of Lands & Others [2015] KECA 284 [KLR], the court said that under Article 159(2) (b) of the Constitution, the litigant’s advocate and other court users have a constitutional duty to assist the court to ensure the timely and efficient disposal of cases. Further, the court held that the principles under Sections 1A and 1B of the Civil Procedure Act cannot be a panacea that heals every sore in litigation, nor a license to parties to ignore or contravene the law and rules of procedure. The court said that due to the manner in which appellant’s lawyer had conducted the case, the Court of Appeal could not turn a blind eye in the face of such inordinate delay and in the absence of sufficient explanation, the conclusion of the High Court. 52.The appellant’s counsels were given more than sufficient time to file an application to amend the plaint, between 21/1/2023 and 3/10/2024. On 25/9/2024, the last chance was given to the appellants to do so. A mention date for 30/10/2024 was issued to confirm compliance. The appellants failed to attend court. 53.A hearing date was given for 21/1/2025 in their absence. The hearing notice was eventually served the following day. Come 21/1/2025, the reason given was that the said law firm had lost touch with the appellants. There was no mention of a misplaced or lost office file containing the appellants’ contacts. There was no indication of whatever other means the appellant's counsel had used to try to trace the appellants. 54.When the appellants returned to court with an application for setting aside almost a month later, Miss. Akwabi, advocate, changed tune and brought up the issue of the lost office file since October 2024. The said lawyer seemed to verify the affidavit of the 1st appellant. The said 1st appellant, on behalf of the rest, forgot that the case belonged to them and bore the responsibility to show bona fide and due diligence in following up the progress of their case, even if represented by the law firm. 55.The two deponents, instead of owning up to the mistakes, shifted the blame to the trial court. The burden to establish sufficient cause as held in Wachira Karani -vs- Bildad Wachira [2016] eKLR, BML -vs- WM [2020] eKLR, and Hon. Attorney General vs Law Society of Kenya & Another Civil Appeal Appl. No. 133 of 2011 [KLR] is on the appellants to show why a request should be granted, and why their acts could be excused. 56.The court said that such a cause must be rational, plausible, logical, convincing, reasonable, and truthful. The court said that such an explanation must not leave doubts in a court’s mind, or gaps in the sequence of events. 57.In Parimal -vs- Veena [2011] 3 SCC 545, the Supreme Court of India said that the meaning of sufficient cause is adequate, enough, and shows that the applicant did not act negligently, or from want of bona fide, in view of the facts and circumstances of the case, or where it cannot be alleged that he acted without diligent or remained inactive. 58.Courts ordinarily excuse mistakes of counsel or party if it affords a sufficient, expeditious, and holistic disposal of a matter, as held in Belinda Murai (supra), Philip Chemwolo & Another -vs- Augustine Kubede (supra), and Tana and Athi Rivers Development Authority (supra). 59.In this appeal, the trial court considered all the facts and circumstances of the case, including the 7 times it had given the appellants’ leave to amend the plaint, the failure to give an advance notice of lack of preparedness to attend the hearing, pendency of the suit for 7 years, indolence on the part of the appellants, and lack of sufficient cause to justify the reinstatement. 60.The appellants seek refuge in Articles 50 and 159 of the Constitution, that they should not be punished for mistakes of counsel which were genuine and excusable. 61.In Gaciani & 11 Others -vs- Kimanga & Another [2023] KESC 23 [KLR], the court held that whereas mistakes of counsel ought not to be visited upon a litigant, there must be cogent and credible evidence demonstrating any efforts or due diligence, through evidence or correspondence of the follow-up with the advocates, or to pursue their rights as held in George Kang'ethe Waruhiu -vs- Esther Nyamweru Munene & Another Civil Appl. No. 18 of 2020 [2021] eKLR. 62.In this appeal, the appellants have not demonstrated when they last visited the offices of their lawyers for instructions, particularly given that for almost a year, the trial court had been informed that they had intended to amend the plaint. No correspondence was sent to the last known contact address of the appellants. It will be stretching the joke too far to assume that the computers of the appellants’ lawyers lacked previous correspondence or letters indicating their physical address. 63.Courts have always emphasized the responsibility of litigants to show interest in and to follow up on their cases, even where they are represented by counsel and even if they are literate or illiterate. The appellants submit that the 1st appellant had lost his phone or dropped it, yet he was the only contact. 64.Written submissions cannot amount to evidence or pleadings as held in D.T. Moi -vs- Mwangi Stephen Muriithi & Another [2014] eKLR. The 1st appellant did not plead to those facts. Negligence is defined as the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do, as set out in Salmond & Heston on: The Law of Torts, 9th Edition. 65.The trial court looks at the acts of the deponents to the appellants’ application vis-a-vis the replying affidavit and the court record. It found a lack of candour and sufficient cause shown in the circumstances. 66.In Nicholas Arap Korir Salat -vs- Independent Electoral and Boundaries Commission & Others [2014] eKLR, the court held that Article 159 of the Constitution and the oxygen principles which both seek courts to do substantive justice in an efficient, proportionate, and cost-effective manner, do not mean courts to provide succor and cover to parties who exhibit scant respect for rules and timelines, or to aid them bend or circumvent rules or shift goal posts, to harm the innocent party striving to abide by the rules. 67.Justice delayed is justice denied, as a mantra, requires parties to assist the court to ensure the timely and efficient disposal of cases. A litigant who initiates litigation against another owes a duty and an obligation to ensure that the suit is expeditiously presented and prosecuted in court, conducts necessary preparations and follow-ups to curb unnecessary delays. 68.The appellants, since 2019, have been enjoying interim orders of injunctions to the detriment of the respondents, who advanced a loan facility against the title document. Telling absurd and unbelievable lies through affidavits to obstruct the course of justice has limits. Such lies, especially from counsels, bring the profession to disrepute as held in Kioko Peter -vs- Kisakwa Ndolo Kingoku [2019] eKLR. 69.Justice is a double-edged sword. It cuts both ways, as held in Simon Ndungu & another -vs- Kangathia Kiuna & another [2021] eKLR. 70.Having gone through the grounds of appeal, written submissions, and the law, I find the decision of the trial court sound, reasonable, and based on known principles on whether or not to offset an order dismissing a suit for non-attendance. The decision is affirmed. 71.The appeal is dismissed with costs to the 2nd, 3rd, 4th, and 5th respondents. 72.Orders accordingly. conclusionsJUDGMENT DATED, SIGNED, AND DELIVERED, VIA MICROSOFT TEAMS/OPEN COURT AT KITALE ON THIS 24TH DAY OF JUNE 2026.In the presence of:Court Assistant - DennisNo appearance for the parties.HON. C.K. NZILIJUDGE, ELC KITALE.