https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4159

Ndegwa & another v Chauhan & another (Environment and Land Case 7 of 2018) [2026] KEELC 4159 (KLR) (8 July 2026) (Ruling) Neutral citation: [2026] KEELC 4159 (KLR) Republic of Kenya In the Environment and Land Court at Nakuru Environment and Land Case 7 of 2018 MAO Odeny, J July 8, 2026 Between William Gakuo Ndegwa 1st Applicant Dorcas Wanjiku Gakuo 2nd Applicant and Avtar Chauhan 1st Respondent Martin Mwangi Njenga 2nd Respondent Ruling 1.This ruling is in respect of a Notice of Motion application dated 23rd February, 2026, by the Plaintiffs/Applicants seeking the following orders:a.That the honourable court be pleased to reinstate the Plaintiff’s suit dismissed on 10th June, 2024, on such terms this Honourable Court may deem it fit and just.b.That the cost of this application be in the cause. 2.The application is grounded on the supporting affidavit of the Applicants sworn on 21st February, 2026, where the 1st Applicant deponed that his former advocate, Ikua Mwangi & Company failed to extract and implement the consent order. 3.He further deponed that when he complained about the delay, the advocate threatened to withdraw but never served him with a court order confirming the withdrawal, leading him to believe that he was still represented. 4.It was the Applicant’s disposition that he later learnt that his former advocate withdrew his representation on 6th March, 2023, without notification and the case was ultimately dismissed on 10th June, 2024, for non-attendance. He also stated that he discovered that a hearing notice for 10th June, 2024, had been sent to his email on 29th February, 2024, but it unfortunately went to his spam/junk folder, therefore he never saw it. 5.The Applicant further deponed that the said notice did not have a virtual court link, which would be necessary given his residency abroad, and that the Defendants used a dormant email address willigakuo@yahoo.com for service. The deponent stated that he thereafter changed his advocates in January 2026, to the firm of K.A. Nyachoti & Co, Advocates and that his absence was not deliberate, but a result of being unmapped in the court tracking system while living abroad and the mistakes of his former counsel. He urged the court to allow the case to proceed based on the merits of the original survey consent order. 6.The 2nd Applicant reiterated the contents of the 1st Applicant’s supporting affidavit and added that she was never served with any mention or hearing notices by the Defendant. She further deponed that she never used the email address associated with the 1st Applicant and that her actual email was blessedacademy@yahoo.com and urged the court to reinstate the suit as prayed. 1St Respondent’s Case 7.The 1st Respondent filed his replying affidavit sworn on 26th February, 2026, and averred that the original suit filed in January 2018 regarding land parcel Block 2/17942 (Mwariki), was initially dismissed on 3rd March, 2022 for non-attendance, and was later reinstated on 30th May, 2022 but the Plaintiffs again failed to prosecute it, leading to a second dismissal on 10th June, 2024 despite being served with a hearing notice. 8.He further averred that the suit has been pending for about eight years without the Plaintiffs ever fixing it for a hearing and that the Plaintiffs waited for nearly two years after the 2024, dismissal before applying for the reinstatement and have not offered any reasonable explanation for the delay. 9.It was the 1st Respondent’s disposition that a case belonged to the party and not the advocate hence parties ought to be vigilant, further the Plaintiffs were aware of disagreements with their counsel but failed to take independent action such as filing a notice of change of advocates before the case was dismissed. 10.According to the Respondent, the Plaintiffs have failed to demonstrate sufficient cause to warrant the equitable remedy of reinstatement as they have approached the court with unclean hands, and reinstating the suit would cause them suffer irreparable harm and mental distress if forced to litigate a matter that was filed eight years ago and had already been dismissed and forgotten for nearly two years. Applicant’s Submissions 11.Counsel for the Applicant filed submissions dated 13th March, 2026, and submitted that the delay and dismissals were the fault of their former advocates, as the Plaintiffs reside in the United States of America thus relied solely on their legal counsel to prosecute the case. 12.Counsel further submitted that the Plaintiffs’ former advocates withdrew from the case on 6th March, 2023, without having informed them, that they only discovered the true status of their case and the dismissal after they appointed new advocates on 20th January, 2026. 13.It was counsel’s submission that the Respondent will suffer no prejudice if the property beacons are properly established, as the court can manage any potential prejudice by setting strict timelines for prosecution or by compensating the Respondents with costs. Counsel relied on the cases of Chrispine Machimbo Ambalasi V Herman Lovega (Civil Appeal 27 of 2023). 14.Counsel cited Section 159 of the Constitution and the case of Khadar Developers Limited V Diamond Trust Bank Limited [2020] eKLR, and submitted that the Applicants’ physical distance combined with the extreme negligence of their uncommunicative former advocates and improper court service, excused their absence. 15.Counsel urged the court to exercise its discretion and allow the dispute to be heard on its merits. 1St Respondent’s Submissions 16.Counsel for the Respondent filed submissions dated 23rd March, 2026, and identified one issue for determination, as to whether or not the Application is merited, and relied on the cases of Simon Waiti Kimani & 3 Others V Equity Building Society [2010] KEHC 1399 (KLR) , cited with approval in the case of Zakayo Kamau Theuri v Moses Kinini Theuri [2018] KEELC 2618 (KLR) and Wafula V Wephukulu & 5 Others (Civil Suit 55 of 2010) [2025] KEELC 1421 (KLR), where the court held that a party seeking to have a suit reinstated must demonstrate good faith and bring the application for reinstatement without unreasonable delay. 17.Mr. Kisila submitted that the suit was dismissed on 10th June, 2024, for want of prosecution and the instant application for reinstatement is dated 23rd February, 2026, about 2 years after its dismissal which period is inordinate as the Respondent had legitimate expectation that by passage of the long period of time, they closed their mind on the case and knew that it had been abandoned. 18.Counsel relied on Order 12 Rule 7 of the Civil Procedure Rules and the case of John Mkuha Mburu V Charles Mwega Mburu [2019] eKLR, and submitted that cases belong to parties and not their advocates. Further that this was the second time the matter was dismissed as it had been dismissed on 3rd March, 2022 for non-attendance. He added that the Applicants have since been unaware of their case for a period of more than four (4) years thus demonstrating indolence on their part. 19.According to counsel, the Applicants ought to have taken steps to instruct new advocates to represent them when the former advocate had expressed interest in not acting for them, and further, that the consent order was neither extracted nor executed thus they were undeserving of the remedy as they have approached the court with unclean hands. Counsel urged the court to dismiss the Application with costs. Analysis And Determination 20.The issue for determination is whether the application satisfies the criteria for reinstatement of a suit dismissed for want of prosecution/non-attendance. 21.In the case of South Empire Traders –vs- Nakuru Players Theatre Club (2018) eKLR, it was held that:“The reinstatement of any application or suit that has been dismissed for non-attendance and/or for failure to prosecute ought not be considered to be automatic. Cogent reasons must be given for the non - attendance, for failure to attend court is a serious issue, and any person failing to attend court must be ready to bear the consequences which may arise therefrom. No applicant should imagine that all he/she needs to do is file an application for reinstatement and that the same will be allowed as a matter of course and indeed, if courts adopt that stance, it will greatly prejudice the administration of justice for all that a person will need to do is fail to appear, and sit in the comfort zone, that he can always file an application for reinstatement which will be allowed. In this instance, I am afraid that I am not persuaded by the reasons tabled.” 22.The Applicant must tender a reasonable explanation for failure to appear in court, when the case was dismissed, a party seeking to have a suit reinstated must demonstrate good faith and bring the application for reinstatement without unreasonable delay. 23.In the case of Ivita V Kyumbu [1975] KEHC 4 (KLR) the court held that:“The test is whether the delay is prolonged and inexcusable, and, if it is, can justice be done despite such delay. Justice is justice to both the plaintiff and defendant; so both parties to the suit must be considered.” 24.It is not in dispute that this case was dismissed on 10th June, 2024, for want of prosecution and that the application for reinstatement was made on 23rd February, 2026. It is also on record that this was the second time the case was dismissed for non–attendance on 3rd March 2022 and was reinstated. The Applicants stated that failure to prosecute the case was because of their former advocate, who failed to follow up on the extraction of the consent order and further withdrew representation without notifying them. They also stated that they had not been mapped, hence the delay was not deliberate, and the mistake of their advocate should not be visited upon them. 25.In the case of Daqare Transporters Limited V Chevron Kenya Limited [2020] KECA 309 (KLR) the court held as follows:“The adage rule that the mistake of counsel should not be visited upon an innocent litigant does not have a blanket application. Nor do we think that it has doctrinal status. The court must always look into the conduct of the party pointing the finger of blame in order to make a just decision. The appellant felt that the learned judge erred in looking into its past conduct, in reaching her decision. That cannot be right as the conduct of the appellant was key in the determination of whether or not it deserved to be granted the reinstatement. In exercising discretion, the Court must be satisfied that justice will be done to all parties to a suit.” 26.The court record also shows that on 21st January, 2022, the court had directed the Applicants to submit a report on the progress of the survey exercise on 3rd March, 2022, failure to which the suit would automatically stand dismissed. The Applicants never complied with the orders and the suit was dismissed for want of prosecution. They later made an application for reinstatement, which was allowed on 30th May, 2022. 27.The Applicants have not sufficiently/reasonably explained the delay in filing the application of reinstatement of this suit. The court is cognizant of the fact that it has the discretion to allow or reject such applications but the same must be exercised judiciously as was held in the case of Shah V Mbogo & another (1968) EA 116 held as follows:“The discretion is intended so as to be exercised to avoid injustice or hardship resulting from in adventure 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 course of justice” 28.Consequently, I decline to exercise my discretion in favour of the applicant as the delay in filing this application was inordinate and the reasons given for non –attendance on the date the matter was scheduled for hearing are wanting. In the circumstances, the Application dated 23rd February, 2026, is without merit and is hereby dismissed with costs to the 1st Respondent. DATED, SIGNED AND DELIVERED AT NAKURU THIS 8TH DAY OF JULY 2026.M. A. ODENYJUDGE