https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5076

REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT NYAHURURU ELC APPEAL NO. E3 OF 2020 JOEL NDIRANGU NDIANGUI………………......APPELLANT/APPLICANT VERSUS EDWARD MBURU IRUNGU (the Legal Representative of the Estate of ANN KABURA CHOMBA (Deceased)……… RESPONDENT RULING 1. Vide a Notice of Motion dated 25th September 2025, the appellant/applicant herein inter alia sought an order of stay of execution of the judgment delivered on 16th January 2020 in Nyahururu CMC ELC Case No. 56 of 2018 pending the hearing and determination or the application or issuance of further orders. 2. The applicant also sought an order of stay of execution of the said judgment pending the hearing and determination of the appeal he has preferred before the Court of Appeal vide Nakuru Court of Appeal Case No. E172 of 2025. NYAHURURU ELCA 3 OF 2020 – JUDGMENT 1 | P a g e 3. Upon being seized of the application, this Court, differently Constituted (L. Mbugua J,) granted the prayer for stay of execution of the judgment delivered in Nyahururu CMC ELC Case No. 56 of 2026 pending the hearing of the application or issuance of further orders. In issuing the order, the Court directed the applicant to serve the application and the direction issued by the court in respect thereof on the respondent by 7th October 2025 failing which the application would stand automatically dismissed. 4. The applicant did not comply with the direction of the Court regarding service of the application and the orders issued by the Court in respect thereof. Consequently, the application stood dismissed as per the direction/order of the Court. 5. When the application came up for hearing/direction on 4th November, 2025 the Court stated/held: - “I have perused the directions given by the Court on 30.09.2025 directing the appellant to effect service by 0.7.10.2025. The applicant has no evidence of NYAHURURU ELCA 3 OF 2020 – JUDGMENT 2 | P a g e service and he requests the court to vary the directions of 30.09.2025 so as to extend time for service. However, the directions of 30.09.2025 were self-executing which means that after 07.10.2025 there was no application capable of being prosecuted. As such, the application of 25/09/2025 stood as dismissed as at 7/10/2025. This file is marked as closed.” 6. Upon losing the application dated 25th September 2025, the appellant/applicant filed a similar application, dated 11th November 2025, at the Court of Appeal. 7. On 9th March 2026, when the application dated 11th November 2025 came up for directions, parties to the application filed a consent for the application to be marked as withdrawn with no orders to costs. The consent was adopted as an order of the Court, bringing to a close the application dated 11th November 2025. 8. In a bid to reinstate the application dated 25th September 2025 NYAHURURU ELCA 3 OF 2020 – JUDGMENT 3 | P a g e for hearing, the appellant/applicant filed a Notice of Motion, dated 16th March 2026 in which he seeks the following orders: - i) ii) Spent Spent iii) That the Honourable Court be pleased to review, vary and/or set aside the orders of 30th September 2025 and 4th November 2025 dismissing the application dated 25th September 2025; iv) The application dated 25th September 2025 be reinstated for hearing; 9. The application is premised on the grounds on its face and supported by the affidavit of the appellant/applicant, sworn on 16th March 2026 in which the grounds on the face of the application are reiterated. 10. In a nutshell, the application is premised on the ground that owing to an excusable mistake by his counsel, the direction of the court that required the applicant to serve the application on the respondent by 7th October 2025 was not complied with and that the delay in filing the application was caused by the fact that NYAHURURU ELCA 3 OF 2020 – JUDGMENT 4 | P a g e upon dismissal of the application, the applicant filed another application before the Court of Appeal, which application he withdrew on 9th March 2026. 11. In reply and opposition to the application, the respondent filed a replying affidavit sworn on 7th April 2026, in which he inter alia depones/contends as follows:- “ ………………………………….. 7. The applicant is approaching this Honourable Court with unclean hands therefore undeserving the orders sought. 8. That this Court delivered its judgment in this matter and per law, this Honourable Court cannot stay judgment of the lower court; 9. That following the foregoing paragraph, this Court is Functus officio. 10. That therefore reinstatement of the application dated 25/9/2025 serves no purpose and as the orders will be issued in vain as this Honourable NYAHURURU ELCA 3 OF 2020 – JUDGMENT 5 | P a g e Court does not have jurisdiction to stay Nyahururu CMC ELC No.56 of 2018; 11. That in any event if the Court will entertain the application, the Applicant vacated the suit land and I am currently in occupation thereof. The application has been overtaken by events. 12. That the applicant has not met the threshold for purposes of reviewing the orders issued by this Honourable Court. 13. That in light of the foregoing, this application is bad in law and should be dismissed in the first instance. 14. That it is thus in the best interest of justice that the orders sought be declined with costs.” 12. The application was disposed of by way of written submissions. 13. In his submissions dated 25th May 2026, the applicant has given an overview of the circumstances leading to filing the instant application and identified the issue for the court’s determination NYAHURURU ELCA 3 OF 2020 – JUDGMENT 6 | P a g e to be whether the Court should grant the orders sought namely, review, vary and/or set aside the orders of 30th September 2025 and 4th November 2025 dismissing the application dated 25th September 2025 and reinstate for hearing the application dated 25th September 2025. 14. Concerning those issues, the applicant points out that the instant application is brought pursuant to Sections 1A, 1B, 3A of the Civil Procedure Act and Article 159 (2) (d) of the Constitution of Kenya, 2010, which provisions, according to the applicant, vests this Honourable Court with wide and unfettered discretion to make such orders as may be necessary for the ends of justice and expeditious determination of disputes. 15. Based on the decision in the case of Kingori & 2 others v. Wamaitha & 5 others (Judicial Review Miscellaneous Application E110 of 2022) (2023) KEHC 852 (KLR), where in an application said to be similar to the instant application, the Court held that for the applicant to succeed, he was required to demonstrate that the predicament they found themselves in, arises from an accident, inadvertence of an excusable mistake or NYAHURURU ELCA 3 OF 2020 – JUDGMENT 7 | P a g e error, the applicant states/explains that his counsel genuinely believed that the application dated 25th September 2025 was duly served on the respondent by his process server within the timelines directed by the Court. 16. According to the applicant, the belief that the application was served is borne out by the fact that he prepared submissions in readiness for hearing of the application on 4th November, 2025. 17. Terming the discovery that the application was not served as directed by the court a surprise, the applicant submits that the fact that his advocate prepared submissions in respect of the application in readiness for the hearing of the application negates any suggestion of indolence, deliberate non-compliance or intention to delay justice. 18. The applicant maintains that failure to effect service of the application on the respondent within the time ordered by the court was an inadvertent and genuine mistake on the part of his counsel and submits that the mistake ought not be visited on him. The applicant points out that immediately the application NYAHURURU ELCA 3 OF 2020 – JUDGMENT 8 | P a g e was filed, he filed a similar application before the Court of Appeal, which application he later withdrew after he discovered that the Court of Appeal lacked jurisdiction to hear and determine the application he had preferred before it. 19. According to the applicant, his conduct shows/demonstrates that he has been vigilant, proactive and desirous of having the application dated 25th September 2025 heard on its merits. 20. The applicant made further reliance on the decisions in the cases of Philip Keipto Chemwolo & another v Augustine Kubende (1986) KECA 87 (KLR), where Apallo JA stated/held: - “Blunder 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 determined on its merits.”, the case of Kiguru v. Muhia (Sued in the Capacity of the Legal Representative of the Estate of Muhia Thuku) & 2 others (Land Case 91 of 2012 (2025) KEELC 1082 (KLR), the case of CMC Holding Ltd v. Nzioki (Civil Appeal No.329 of 2001) (2004) KECA 143 (KLR) NYAHURURU ELCA 3 OF 2020 – JUDGMENT 9 | P a g e where it was stated/held; - “our view is that in law, the discretion that a court of law has, in deciding whether or not to set aside ex parte order such as before us was meant to ensure that a litigant does not suffer injustice or hardship as a result of among other things an excusable mistake or error. It would in our mind not be a proper use of such discretion if the court turns its back to a litigant who clearly demonstrates such excusable mistake, inadvertence, accident or error. Such an exercise of discretion would in our mind be wrong in principle”, and the case Richard Nchapi Leiyangu vs. IEBC & 2 Others-Civil Appeal No. 18 of 2013 where it was stated/held as follows: - “The right to a hearing has always been a well-protected right in our Constitution and is also the Cornerstone of the Rule of Law…” 21. Pointing out that his application dated 25th September 2025 was not dismissed based on substantive determination of the rights of NYAHURURU ELCA 3 OF 2020 – JUDGMENT 10 | P a g e the parties thereto but on the basis of procedural lapse occasioned by inadvertent failure of service despite his counsel’s genuine and honest believe that service had been duly effected, the applicant urges this court not to elevate curable procedural misstep over substantive justice but instead find that the applicant has made up a case for being granted the orders sought. 22. In his submissions dated 12th June 2026, the respondent identifies the issues for the courts determination to be namely; i) Whether the applicant has met the threshold for review under Order 45 of the Civil Procedure Rules; ii) Whether this court has jurisdiction to grant the intended relief; iii) Whether reinstatement serves any purpose. 23. On whether the applicant has met the threshold for review under Order 45 of the Civil Procedure Rules, the respondent makes reference to the conditions set in Order 45 for grant of an order of review and to the principles espoused in the case of Pancras NYAHURURU ELCA 3 OF 2020 – JUDGMENT 11 | P a g e T. Swai v Kenya Breweries Ltd (2014)e KLR-Civil Appeal 275, and submits that the application is not hinged on any of the statutory grounds envisaged under order 45 of the Civil Procedure Rules but on the contention that his counsel genuinely and honestly believed that the process server had effected service within the timelines directed by the court. 24. Based on the decision in the case of Nyanaro v. Kanyan Kabaria (Civil Appeal No.E52 of 2022) (2024) KEHC 2960 (KLR) (7 March 2024) (Judgment), the respondent submits that the instant application seeks to reopen and resurrect an application that stood dismissed by operation of a self-executing court order, not because of any discovery of new evidence or error on the face of the record, but solely because the applicant failed to comply with the court direction, a practice the court in the case of Nyanaro v Kanyankabaria (supra), cautioned about. 25. The respondent also takes issue with the conduct of the applicant of filing a similar application to the application sought to be reinstated before the Court of Appeal instead of right away NYAHURURU ELCA 3 OF 2020 – JUDGMENT 12 | P a g e applying for review only to turn to this court after that avenue proved unsuccessful. 26. The respondent submits that review is not designed to provide litigants with a second opportunity to prosecute applications that have been overtaken by their own inaction nor is it a safety net for parties seeking to escape the consequences of non- compliance with express court orders. 27. Asserting that the applicant has failed to satisfy the strict requirements of Order 45 of the Civil Procedure Rules, the respondent urges this court to dismiss the instant application on that ground. 28. On whether this court has jurisdiction to grant the intended relief and whether reinstatement serves any purpose, the respondent makes reference to the provisions of Order 42 Rule 6 of the Civil Procedure Rules and to the decision in the case of Aldermen Limited vs Shah & 3 others (Civil Appeal E004 of 2021) (2022) KEELC 12588 (KLR) (22 September 2022) (Ruling) and based on the fact that the applicant seeks an order NYAHURURU ELCA 3 OF 2020 – JUDGMENT 13 | P a g e of stay of the judgment of the lower court as opposed to the judgment of decree of this Court issued in respect thereof, submits that this Court lacks jurisdiction to grant an order of stay of the judgment of the lower Court as upon pronouncing itself on the appeal preferred before it, it became functus officio. 29. It is the respondent’s case that the provisions of Article 159 of the Constitution and Section 3A of the Civil Procedure Act cannot confer jurisdiction on this Honourable Court where none exists. 30. According to the respondent, the discretion of this court contemplated in Order 42 rule 6 of the Civil procedure rules is in respect of its own orders and not in respect of the orders of another Court. 31. Maintaining that this court lacks jurisdiction to grant the order of stay of execution sought in the application sought to be reinstated, the respondent submits that reinstating the application, will serve no useful purpose. 32. Pointing out that the subject matter of the application has been NYAHURURU ELCA 3 OF 2020 – JUDGMENT 14 | P a g e litigated for a long period of time, since 2012 in the lower court, this Court and the Court of Appeal, the respondent submits that litigation must come to an end and urges this court to dismiss the application with costs to him. 33. As pointed out herein above, vide an application dated 25th September 2025, the applicant moved this Court, differently constituted, for an order of stay of the judgment of the lower Court issued on 16th January 2020 in Nyahururu CMC ELC Case No. 56 of 2018 pending the hearing and determination of the application or issuance of further orders in respect thereof. 34. Upon being seized with the application, the Court issued a conditional order of stay of execution of the judgment pending the hearing of the application or issuance of the further orders in respect thereof. 35. The applicant failed to comply with the conditions issued by the court, which failure had the effect of automatic dismissal of the application. 36. Instead of applying for review of the orders of the court if he had NYAHURURU ELCA 3 OF 2020 – JUDGMENT 15 | P a g e good reasons for doing so, the applicant filed a similar application to the application he lost on account of his failure to comply with directions or orders given by the court, which application he later on withdrew after it emerged that the Court of Appeal declined to hear and determine the application he preferred before the Court of Appeal. 37. In a bid to reinstate the dismissed application, the applicant filed the instant application, through which he urges this Court to review, vary or set aside the orders issued by this Honourable Court dismissing his application for stay of execution of the judgment of the lower court pending the hearing and determination of the application and/or the determination of the Appeal he preferred before the Court of Appeal. 38. As pointed out herein above, the application is premised on the ground that owing to a genuine and inadvertent mistake of the applicant’s counsel, the order of the Court requiring that the application and the directions issued by the Court be served by a certain date failing which the application would stand automatically dismissed was not complied with leading to NYAHURURU ELCA 3 OF 2020 – JUDGMENT 16 | P a g e dismissal of the application. 39. In reply and opposition to the application, the respondent contends that the application is bad in law as this Court lacks jurisdiction to grant stay of execution of the judgment of the lower court; that granting the orders sought will serve no useful purpose as the respondent has since taken possession of the suit property and that the applicant has not met the threshold of being granted the orders sought. 40. I have carefully considered the grounds taken up in support of the instant application, the response thereto and the submissions by the parties. I find the sole issue for determination to be whether the applicant has made up a case for being granted the orders sought. In that regard, I have considered the explanation offered by the applicant for his failure to comply with the explicit orders of the Court that required him to serve the respondent with the application and the direction issued by the Court in respect thereof. I have also considered the conduct of the applicant after he lost the application. NYAHURURU ELCA 3 OF 2020 – JUDGMENT 17 | P a g e 41. The failure by the applicant to apply for review or setting aside the order of this Court immediately he lost the application, if he had any good reason for doing so and instead choosing to file a similar application before the Court of Appeal leads this court to the conclusion that the instant application is but an afterthought, predicated on the sole purpose that the applicant technically lost the application he preferred before the Court of Appeal as opposed to there being a genuine reason or cause for review or setting aside the orders of this Court. 42. Since there is no affidavit of service capable of showing that the orders of the Court were ever served on the respondent, even after the time ordered by the Court had lapsed, there is no basis for the claim by the applicant that failure to comply with the order of the Court which resulted in dismissal of the application was an inadvertent mistake on the part of his counsel or his counsel’s process server. 43. The explanation offered by the applicant paints him as a negligent litigant, who on account of lack of due diligence on his part, failed to comply with the orders of Court issued with the NYAHURURU ELCA 3 OF 2020 – JUDGMENT 18 | P a g e objective of facilitating fair, effective and expeditious disposal of his application. 44. Having been the author of his own misfortune, the applicant does not deserve the exercise of the discretionary power conferred on this Court by Section 3A of the Civil Procedure Act. In any event, the respondent in his replying affidavit has deponed that he has since taken possession of the suit property, an averment which the applicant has not controverted. Granting the orders sought, in the circumstances may not serve any useful purpose. 45. The upshot of the foregoing is that I find the Notice of Motion dated 16th March 2026 to be lacking in merits and dismiss with costs to the respondent. 46. Orders accordingly. Ruling dated, signed and delivered at Nyahururu this 27th day of July, 2026 through Microsoft teams. L. N. WAITHAKA NYAHURURU ELCA 3 OF 2020 – JUDGMENT 19 | P a g e JUDGE In the presence of :- Ms. Rotich h/b for Mr. Komu for the Appellant/ Applicant Mr. Gakenia Gicheru h/b for Mr. Martin Waichungo for the respondent Court Assistant: Bedan NYAHURURU ELCA 3 OF 2020 – JUDGMENT 20 | P a g e