Mwangi Gitau v George Kimani Karuki & 3 others

**THE REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND COURT AT NAIROBI** **ELC LC E132 OF 2024** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_­­­\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **MWANGI GITAU - PLAINTIFF/APPLICANT** **VS** **GEORGE KIMANI KARUKI - 1ST DEFENDANT /RESPONDENT** **NAOMI WANJIRU KARUMBA - 2ND DEFENDANT/RESPONDENT** **THOME FARMERS CO NO. 1 LTD - 3RD DEFENDANT/RESPONDENT** **CONSOLIDATED BANK OF KENYA - INTERESTED PARTY** **RULING** **(In respect of the Applicant’s Application dated 26/1/2026)** 1. Before Court is the Plaintiff/Applicant's application dated 26/1/26 seeking reinstatement of the suit, which was dismissed on 21/1/26. 2. It is averred that the Plaintiff's counsel received notification on 21/1/26 that the suit had been dismissed for want of prosecution. The Plaintiff and his counsel were unaware of the hearing date fixed for 18/11/25. The Court directed the counsel for the 2nd Respondent to serve the Plaintiff with the hearing notice, but the Plaintiff was not served. The Court also granted the parties who had not complied 14 days to file pleadings, and the matter was set for hearing on 26/1/26. The failure to attend Court for the hearing on 26/1/16 was therefore not intentional but was occasioned by the non-service of the hearing notice. It is in the interests of justice that the suit be reinstated. No prejudice will be visited on the Respondents if the application is allowed. 3. The 1st Respondent opposed the application by the replying affidavit of George Kimani Kariuki, sworn on 20/2/2026. He stated that it was for the Applicant to follow up his case and not to wait to be served by the 2nd Respondent. He further stated that the Applicant's advocate was present in Court during the mention of 18/11/26, when the hearing date was fixed. The Court was urged not to allow the application. 4. The 2nd Respondent filed grounds of opposition dated 29/1/26 on the following grounds; 5. The Notice of Motion as drawn is incompetent, frivolous, vexatious, an abuse of the Court process and is for dismissal with costs. 6. The Notice of Motion is incurably defective and the same does not lie in law. 7. The grounds relied upon by the Applicant do not warrant the issuance of the Orders sought. 8. The Applicant inexcusably failed to comply with mandatory provisions of the law before instituting the Notice of Motion herein. 9. The Notice of Motion is grossly misconceived in law, fatally defective and therefore ought to be struck out with costs. 10. The provisions under which the Notice of Motion has been brought cannot be the basis for this Honourable Court to grant the Orders sought. 11. The Notice of Motion is a grave abuse of the due process of this Honourable Court. The same has been filed to steal a match on the 2nd Defendant. 12. The Orders sought are intended to annoy this Honourable Court. 13. The Notice of Motion is an abuse of the due process and contrary to public policy. 14. The application was not opposed by the 3rd Respondent and the interested party. 15. It is only the 1st Respondent who filed written submissions despite directions by the Court to do so. The Court has considered the submissions. The key issue is whether the application is merits 16. 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. In this case, the hearing of the suit was fixed for 18/11/25, with the next date set for 21/1/26. However, when the material came on, the Applicant and his advocate were absent. The Court was moved by the 1st Defendant to dismiss the case for want of prosecution and non-attendance. The Court obliged, and the case was duly dismissed. 2. I have considered the reasons for the Applicant's and his counsel's non-attendance at the hearing, and the Court finds the grounds weak. I say so because the cardinal rule is that once a party files suit, it must be in charge of its active prosecution until its logical conclusion. The Applicant appears to blame one of the Defendants for failing to serve it with a hearing date, and I agree with the 1st Defendant that the onus of progressing the suit to a hearing rests with the Applicant, not the Respondents. That said, the Court notes that Mr Wesonga, advocate for the 2nd Respondent, had been ordered to serve, and as an officer of the Court he ought to have served the Applicant's counsel. That said, this non-service cannot be used by the Applicant as a refuge in these circumstances. 3. Having said that, the Court is of the view that the suit be reinstated to afford the parties the opportunity to be heard on merits. 4. In the end, I allow the application but on terms; 5. The application is allowed on condition that the Applicant pays the costs in the sum of Kshs 50,000/- in favour of the 1st and 2nd Respondents to be shared equally, the same payable within the next 15 days. 6. The Applicant is ordered to fix the matter for hearing within the next 15 days; in default, the orders granted shall lapse automatically on the 16th day. 7. The costs shall be borne by the Applicant. 17 It is so ordered **DELIVERED, DATED AND SIGNED AT NAIROBI THIS 9TH DAY OF SEPTEMBER 2026 VIA MICROSOFT TEAMS.** **J. G. KEMEI** **JUDGE** **Delivered Online in the Presence of:** 1. Mr. Owang for the Plaintiff 2. Ms. Mbesa H/B for Mr. Oonge for the 1st Defendant 3. Ms. Sheunda H/B for Mr. Osundwa for the 2nd Defendant 4. N/A for 3rd Defendant 5. CA- Mr. Amos