https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3281

Ngaruni [Suing as the Legal of the Estate of Kirichiu Ngaruni] & another v Tharimbu & 7 others (Environment and Land Appeal E068 of 2025) [2026] KEELC 3281 (KLR) (28 May 2026) (Judgment) Neutral citation: [2026] KEELC 3281 (KLR) Republic of Kenya In the Environment and Land Court at Meru Environment and Land Appeal E068 of 2025 JO Mboya, J May 28, 2026 Between Joseph Kinyua Ngaruni [Suing as the Legal of the Estate of Kirichiu Ngaruni] 1st Appellant Mwenda Mitu 2nd Appellant and Joseph Tharimbu 1st Respondent Stephen Kubai Lyria 2nd Respondent Josphat Mwilaria 3rd Respondent Timothy Mwingirwa 4th Respondent Silas Kithinji Muriungi 5th Respondent Jenifer Nyoroka 6th Respondent The Land Adjournment and Settlement Officer Tigania East/West Districts 7th Respondent The Hon. Attorney General 8th Respondent (Being an Appeal from the Ruling/Order of the Tigania/Chief Magistrate’s Court Hon. J M Macharia – Chief Magistrate in ELC E060 OF 2022) Judgment 1.The subject Appeal arises from the Ruling and decision of Hon. J.M Macharia-SPM dated and delivered on 2nd September 2025; and wherein the learned trial magistrate found and held that the Plaintiffs [now Appellants] were guilty of dilatory conduct. Furthermore, the trial court found and held that the conduct of the Plaintiffs [now Appellants] did not warrant further indulgence by the court. 2.Flowing from the foregoing observation by the trial court; and coupled with the age of the matter, the learned trial magistrate dismissed the suit for non-compliance with the directions of the court; and for want of prosecution. 3.It is the said ruling and the consequential order, which has aggrieved the appellants and thus provoking the subject appeal. Instructively, the Appellants are contending that the learned trial magistrate injudiciously exercised his discretion and thereby drove the appellants from the seat of justice without being afforded due opportunity to be heard. 4.The Appellants have raised a plethora of grounds, which are not only prolix but are also repetitive. Nevertheless, it suffices to reproduce the said grounds of appeal. 5.The grounds of appeal are:i.That the Learned Magistrate erred in law in fact by dismissing the Appellant’s suit based on delay, without adequately considering the peculiar and justifiable circumstances leading to the delay.ii.That the Learned Magistrate erred in law and in fact by disregarding the duly issued and approved limited grant of letters of Administration ad Litem, merely because it had not been uploaded onto the e-filing system for the appellants yet the physical documents had been availed to the court.iii.That the learned magistrate erred in law and in fact by disregarding the duly issued and approved limited grant of letters of Administration Ad Litem, which formed part of the Court’s Earlier orders on the substitution of the 1st Appellant, and proceeded to find that the said orders on the substitution of the 1st Appellant, and proceeded to find that the said orders had been defied, thereby relying on the same as ground of for dismissal.iv.That the learned magistrate failed to consider that the delay in prosecuting the matter was not deliberate or intentional, but occasioned by genuine challenges including the advanced age of most plaintiffs and the demise of some of them, which complicated communication and the obtaining of necessary instructions.v.That the learned magistrate erred in failing to appreciate that the approval of the limited grant of letters of administration ad litem was central to the matter, as the 1st appellant had been granted authority to appear, plead and act on behalf of the other Appellants, thereby making the substitution of the 1st appellant indispensable.vi.That the learned magistrate erred in law and in fact by failing to appreciate the complex nature of family succession processes, particularly in customary and rural settings, where it often takes considerable time for families to agree on who is to petition the grant of representation, as evidenced by the Chief’s letter dated 06.01.2025 which came almost a year after the demise of Kirichu Ngarunia.vii.That the learned magistrate erred in failing to consider that the procurement of a death certificate and other succession document is a slow administrative process, especially in rural areas, and this contributed significantly to the delay.viii.That the learned magistrate failed to consider that the dismissal of the suit will put the subject parcel of land at risk and shall prejudice the appellants and deprive them the justice being sought.ix.That the learned magistrate misdirected himself by failing to exercise judicial discretion judiciously, thereby occasioning a miscarriage of justice in striking out the plaintiff’s suit instead of allowing it to proceed on merit.x.That the learned magistrate failed to appreciate the overriding objective and constitutional obligation to administer substantive justice without undue regard to procedural technicalities, particularly where the delay had been reasonably explained.xi.That the learned magistrate erred in fact and in law by failing to appreciate the interest of justice and the right to be heard, which should have outweighed the procedural delay, particularly in a matter of grave importance involving deceased persons and land rights. 6.The subject appeal came up for directions on 23rd March 2026, whereupon learned counsel for the Appellants intimated to the court that same had filed and served the record of appeal. In addition, learned counsel posited that the record of appeal is complete. To this end, learned counsel sought directions as pertains to the hearing and disposal of the appeal. Counsel proposed to have the appeal canvassed and disposed of by way of written submissions. 7.With the concurrence of learned counsel for the Respondents, the court proceeded to and issued directions. The directions were: the appeal shall be heard before one Judge, sitting at Meru for one day; the appeal shall be canvassed by way of written submissions to be filed and exchanged by the parties; the Appellants shall file and serve written submissions within 21 days from the date of the directions; the Respondents shall be at liberty to file and serve written submissions within 21 days from the date of service; and the appellants shall have leave to file and serve rejoinder submissions [if any] within seven days of service. 8.The Appellant filed written submissions dated 4th May 2026 and wherein same has highlighted four [4] key issues. The issues are: whether the learned trial magistrate properly exercised judicial discretion in dismissing the suit for want of prosecution; whether the delay in prosecuting the suit was excusable and sufficiently explained; whether the dismissal offended the principles of substantive justice under Article 159 of the Constitution 2010; and whether the Appellants should be granted an opportunity to prosecute the suit on merits. 9.Regarding the first issue, learned counsel for the Appellants has submitted that the learned trial magistrate erred in finding and holding that the delay culminating into the dismissal of the suit was unreasonable; inordinate and thus warranting the dismissal. Moreover, it has been submitted that the delay which was relied upon to dismiss the Appellants’ suit was not wholly blamable on the Appellants. 10.To this end, it has been submitted that had the learned trial magistrate appreciated the totality of the circumstances and the reasons underpinning the delay, same could not have concluded that the suit warranted Dismissal. 11.Secondly, it has been submitted that the delay which was deployed by the learned trial magistrate to warrant the dismissal of the suit was neither intentional nor deliberate. Furthermore, it has been contended that the delay in question was duly and suitably explained by/on behalf of the Appellants. 12.It has been submitted that the matter in the lower court and by extension before this court concerned elderly litigants; deceased parties; and hence there was need for the current appellants to pursue and obtain inter alia death certificates before same could approach court for purposes of letters of administration ad litem. It has been contended that procuring the copies of death certificate[s]; and thereafter the Grant of letters of Administration Ad Litem was bound to take and indeed took a long time. 13.Other than the foregoing, it has also been submitted that the Appellants herein had indeed procured and obtained Grant of letters of administration ad litem and that same had equally been uploaded onto the CTS. Nevertheless, counsel has posited that despite the grant of letters being uploaded unto the CTS; and being physically available in Court, the learned trial magistrate proceeded to and dismissed the suit; and thereby denied the Appellants an opportunity to be heard on merits. 14.Additionally, it has been submitted that the learned trial magistrate also failed to appreciate that the succession process, particularly within the rural and customary setting[s] often involves consultation among family members and which consultation does lead to delays. 15.In the premises, it has been submitted that the Appellants tendered and provided good reasons; and sufficient cause, but which were disregarded by the learned trial magistrate. 16.The next issue which has been canvassed by learned counsel for the Appellant touches on and concern[s] the contention that the dismissal of the suit for want of prosecution/non-compliance with the directions of the court, breached/offended the provisions of Article 159 of the Constitution. 17.It has been submitted that the learned trial magistrate elevated procedural technicalities over and above substantive justice; and thereby failed to afford the Appellants the full opportunity to be heard on merits. In this regard, it has been posited that the learned trial magistrate breached/violated the Appellants’ right to fair hearing. 18.The last issue which has been highlighted relates to the reasons why the suit in the lower court ought to be reinstated. Firstly, it has been contended that the suit touches on and concerns a land dispute and hence it ought to be heard and determined on merits, as opposed to procedural technicalities. 19.On the other hand, it has been contended that the interest of justice and the overriding objective of the court command the court to afford the parties the latitude to be heard in respect of their cases and the Appellants herein shall be subjected to grave injustice; hardship, and inconvenience unless the orders sought are granted. 20.Consequently, and in the premises, the Appellants have implored the court to uphold the Appellants’ rights to be heard in accordance with the constitution, which underscores determination of matters on substantive basis; and not otherwise. 21.To buttress the foregoing submissions, learned counsel for the Appellants has cited and referenced the holding in the case of Ivita v Kyumbu [1975] eKLR Civil Suit 340 of 1971 and Wachira Karani vs Bildad Wachira [2016] KEHC, respectively. 22.Flowing from the foregoing submissions, learned counsel for the Appellants has invited court to find and hold that the learned trial magistrate improperly and injudiciously exercised his discretion. The court has been invited to find merit in the Appeal; allow the appeal; set aside the impugned ruling; and to reinstate the suit in the lower court for hearing and determination on merits. 23.Learned counsel for the 1st, 5th, to 13th, 15th, 16th, and 18th Respondents [hereinafter referred as the named Respondents] filed written submissions dated 11th May 2026 and wherein same has highlighted four [4] key issues. The issue[s] are: Whether the delay in filing the Application for substitution was inordinate; Whether the reason for the delay and non-compliance was satisfactorily explained; Whether the learned trial magistrate correctly/properly exercised his discretion; and Whether the Respondents stand to suffer prejudice or otherwise. 24.With respect to the first issue, learned counsel for the named respondents has submitted that the suit in the lower court [the original suit] was filed in the year 2012. In addition, it has been submitted that even though the suit was filed in 2012, the Appellants herein exhibited dilatoriness and lack of diligence in the way same prosecuted the suit. 25.Moreover, it has been submitted that some of the defendants in the original suit died as early as 2012 culminating into the court granting leave/liberty to the Appellants to undertake substitution. Nevertheless, it has been submitted that the Appellants herein failed to take timeous steps and to act with due promptitude. 26.Counsel for the named respondents has further submitted that the Appellants herein were subsequently granted various indulgence and accommodation to enable same to procure grants of letters of administration; and thereafter to undertake substitution of various plaintiffs who were deceased as well as the deceased defendants. 27.Be that as it may, it has been contended that the Appellants did not heed the warnings of the court and did not endeavor to undertake the substitutions. In this regard, it has been submitted that the scope of delay was not only unreasonable, but equally inordinate. 28.To buttress the foregoing submissions, learned counsel for the named respondents has cited and referenced two decisions, namely; Bwanamaka & 14 others vs Nation Media Group Limited & 7 others [2023] KEHC; and Mutai and Another vs Attorney General [2019] KECA, respectively. 29.The second issue that has been canvassed relates to failure to provide or tender cogent and plausible explanation for the delays and the failure to comply with the directions of the court. It has been submitted that the Appellants herein merely alluded to challenges in counsel obtaining instructions from the Appellants; complexities of succession proceedings in the rural areas; and the rigorous process in obtaining documents. However, it has been posited that these vague allegations/assertions were neither explained nor substantiated. 30.Premised on the foregoing, learned counsel for the named respondents has submitted that the learned trial magistrate was not obliged to exercise discretion based on such vague assertions. To this end, it has been contended that the Appellants failed to discharge their obligation to the court. 31.In respect of the foregoing submission and in particular, the failure to proffer plausible; and cogent reasons, learned counsel has referenced the holding in the case of Wanjihia vs Alex Wainaina T/A John Commercial Agencies & 4 others [2024] KECA; and Rebecca Mijinde Mungole & Another vs Kenya Power and Lighting Company Limited & 2 others [2017] KECA, respectively. 32.Next is the issue on whether the learned trial magistrate improperly exercised his discretion. To this end, it has been submitted that the learned trial magistrate considered the age of the file; the antecedent conduct of the Appellants; the lackluster approach taken by the appellants; and the failure to comply with the directions of the court. 33.Flowing from the foregoing, it has been submitted that the learned trial magistrate properly and correctly exercised his discretion and came to the correct conclusion that the Appellants were hellbent on abusing the due process of the court; and frustrating the administration of Justice. 34.Furthermore, it has been submitted that the dismissal of the suit for want of prosecution/non-compliance with directions of the court was an exercise of discretion. In this respect, it has been contended that this court [Appellate Court] should be slow in interfering with the discretion of the trial court, unless there is good reason to warrant such intervention/ interference. 35.Regarding the principles to be deployed by the Appellate court while dealing with questions touching on and concerning exercise of discretion, learned counsel has cited and referenced the holding in Joseph Gachuhi Muthanji vs Mary Wambui Njuguna, Civil Appeal No. 34 of 2014 [unreported] and Mrao Limited vs First American Bank of Kenya Limited & 2 others [2003] eKLR. 36.The last issue that has been submitted upon relates to the prejudice; hardship; or inconvenience to be suffered by the named respondents, if the subject appeal, is allowed. It has been contended that the suit in the lower court was filed in year 2012. However, the Appellants failed to diligently prosecute same and thus contributed to substantial delay. 37.Additionally, it has been submitted that if the said suit were to be reinstated, the named Respondents shall continue to be subjected to undue anxiety and endless proceedings which will occasion emotional stress; and substantial Financial expenses. To this end, it has been submitted that the court ought to avert circumstances where a party is exposed to untold suffering; endless anxiety; and unnecessary expenditure. 38.Moreover, it has been submitted that where the prosecution of a suit takes too long, the aggrieved parties, namely; the parties who were dragged to court are denied justice. Consequently, and in this regard, learned counsel for the named respondents has invoked the maxim “Justice delayed is Justice denied”. 39.To anchor the foregoing submissions, learned counsel for the named respondents has referenced the holding in the case of Joseph Ochieng & 2 others T/A Acquiline Agencies vs First National Bank of Chicago [1995] KECA; and Said Sweilem Gheithan Saanum v Commissioner of Lands (being sued through Attorney General) & 5 others [2015] KECA 284 (KLR), respectively. 40.As a result of the foregoing, learned counsel for the named Respondents has invited the court to find and hold that the Appellants herein have not established a basis to warrant the grant of the appeal. Furthermore, it has been posited that the learned trial magistrate properly and judiciously exercised his discretion. 41.In a nutshell, the Court was implored to dismiss the appeal; and to award Costs to the named Respondents. 42.Having reviewed the record of appeal; the grounds highlighted at the foot of memorandum of appeal; the impugned ruling; and upon considering the submissions by/on behalf of the respective parties, I come to the conclusion, that the determination of the subject appeal turns on one singular issue. The issue is: Whether the learned trial magistrate improperly and injudiciously exercised his discretion in Dismissing the Suit for want of Prosecution or otherwise. 43.Before venturing to interrogate and address the singular issue, which has been isolated above, it is important to underscore that what is before me is a first appeal. In addition, it suffices to point out that the appeal arises out of the exercise of judicial discretion by the learned trial magistrate. To this end, it must be borne in mind that the jurisdictional remit of this court [1st Appellate court] to interfere with exercise of discretion is circumscribed. 44.Notably, this court can only interfere with the exercise of the discretion of the lower court [Court of first instance] where certain elements are established and proven. The elements that must be established to warrant interference with the discretion of the lower court were elucidated in the case of Mbogo vs Shah [1968] EA 93. 45.The court of Appeal for East Africa [EACA] stated thus:“A Court of Appeal should not interfere with the exercise of the discretion of a judge unless it is satisfied that he misdirected himself in some matter and as a result arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge was clearly wrong in the exercise of his discretion and that as a result there has been misjustice.” 46.With the principles highlighted above in mind, it is apposite to revert to the matter before hand and to discern whether the exercise of discretion was improper or injudicious; or otherwise. 47.I wish to point out that the suit which was before the trial court was filed in the year 2012. To this end, there is no gainsaying that by the time the suit was being dismissed for want of prosecution/non-compliance with the directions of the court, the suit had been alive in the corridors of justice for more than thirteen years and counting. Quite clearly, the suit was an old one. 48.Additionally, I also bear in mind that various parties, namely; Plaintiffs and Defendants had passed on over time. In fact, by the time the suit was being dismissed, only the 5th Plaintiff was alive. For good measure, the 1st Appellant herein was not a party to the original suit. 49.Furthermore, it is pertinent to point out that the 1st Appellant herein, only procured and obtained Grant of letters of administration on 8th September 2025, whereas the suit in the lower court was dismissed on 2nd September 2025. Moreover, it is not lost on me that no application for substitution was ever mounted by/on behalf of this 1st Appellant in the lower court. Indeed, none could have been mounted insofar as the Suit stood dismissed, long before the First Appellant obtained the Grant of Letters of Administration Ad Litem. 50.I wish to remind myself that even though all the Plaintiffs in the lower were dead save for the 5th Plaintiff, no substitution was ever taken. Moreover, there is no gainsaying that substitution of a deceased party can only be undertaken within 12 months from the date of death [See Order 24 rules 2, 3, and 4 of the Civil Procedure Rules, 2010]. 51.Where a deceased party is not substituted within the statutory duration, namely; within One year of Death, the suit by or against the deceased abates. It suffices to underscore that abatement of a suit arises by operation of the law and accrues automatically upon lapse of the statutory twelve [12] months. 52.In the case of Said Sweilem Gheithan Saanum v Commissioner of Lands (being sued through Attorney General) & 5 others [2015] KECA 284 (KLR), the Court of Appeal highlighted the legal implication[s] of abatement. 53.The Court stated thus:“The effect of an abated suit is that it ceases to exist in the eye of the law. The abatement takes place on its own force by passage of time, a legal consequence which flows from the omission to take the necessary steps within one year to implead the legal representative of the deceased plaintiff. There have been arguments, as to whether a formal order is necessary to confirm the fact of abatement. See M’mboroki M’arangacha v Land Adjudication Officer, Nyambene and 2 others, Meru H.C.C. Application No. 45 of 1997 where the High Court held that an order to record the abatement of a suit was not necessary. See a similar holding in KFC Union v Charles Murgor (Deceased) NBI HCCC No.1671 of 1994. From the language of Order 24 Rule 3(2) aforesaid, earlier reproduced and highlighted, the fact of abatement must be brought to the notice of the court, proved and accordingly recorded for the defendant to apply for costs. It means that even though the legal effect of abatement may have already taken place, for convenience an order of the court is necessary for a final and effectual disposal of the suit.” 54.It is apparent that by the time the advocate for the Appellants was engaging the learned trial magistrate in the game of adjournments and more adjournments in an endeavor [sic] to undertake substitution, the suit on behalf of the 1st, 2nd, 3rd, 4th, and 6th Plaintiffs stood abated. 55.I am alive to the fact that one cannot talk of an endeavor to substitute a party where the suit has ceased to exist in the eyes of the law. Surely, the learned counsel for the Plaintiffs [now Appellants] was playing lottery with the learned trial magistrate. 56.Other than the foregoing, it is also imperative to highlight that despite all the arguments about substitution, there is nowhere that learned counsel for the Appellants ever addressed his mind to reinstatement/revival of the abated suit. Suffice it to state that the process of reviving/ reinstating an abated suit is laborious; and in particular, one must demonstrate sufficient cause. [See Rebecca Mijinde Mungole & Another vs Kenya Power and Lighting Company [2017] KECA 544] 57.The last aspect that also merits a short discussion relates to the failure to comply with or abide by the numerous direction[s] of the court. The record of the Lower court shows that the Plaintiffs in the lower court sought and obtained assorted indulgence; and which were variously marked as being final. Nevertheless, the Plaintiffs and their Learned counsel did not heed the warning of the court underpinned by the wording of the adjournment. 58.The question[s] that do arise are: whether the directions and orders of the court, like the ones that color the record of the lower court, are ornamental; or cosmetic? Do these court orders mean something? Can the court orders be disregarded with abandon; and Do courts have teeth to bite? 59.The answer[s] to the various, albeit numerous question[s] adverted to in the preceding paragraph, are to be found in the case of Tana Teachers Cooperative Savings Society Limited vs Adrian Muchiri [2018] Eklr. 60.The Court of Appeal while dealing with a near similar situation stated thus:“Although parties are always in haste to invoke the “overriding principle” when seeking favorable exercise of discretion by the courts or covering up for some infractions they may have committed, they tend to forget that Section 1A (3) Civil Procedure Act as well as section 3A Appellate Jurisdiction Act enjoins them to assist the court in ensuring that court directions are complied with and that justice is dispensed expeditiously. A party cannot egregiously fail or refuse to comply with directions of the court claiming that the said directions were salutary and not accompanied by any sanctions and hope to seek refuge in the overriding principle. That in our view amounts to gross abuse of court process. There must be an end to litigation and it behooves this Court to tell the appellant that its journey ends at this point.” [Emphasis added]. 61.From the various perspectives which I have alluded to elsewhere hereinbefore; and considering the record that was obtainable before the trial court, there is no sufficient basis to warrant interfering with the discretion of the trial court. Notably, the discretion was exercised judiciously and on sound grounds, bearing in mind the provisions of Sections 1A; and 1B of the Civil Procedure Act, Chapter 21, Laws of Kenya. 62.Moreover, there is no gainsaying that the Appellants herein did not demonstrate any scintilla of improper, or injudicious exercise of discretion to warrant the intervention of this court. 63.The burden was on the Appellants. Sadly, the Appellants have failed to discharge the burden. Further, and in any event, it is settled law that the discretion/jurisdiction of the court does not issue for the mere asking and at the beckoning of everyone. It only issues to and in favor of those who are diligent and above all; equitable in their dealing[s] with the court. 64.Finally, I wish to echo the import and tenor of Article 159[2][b] of the Constitution. The command is to the effect that parties are enjoined to help the court to expedite matters; mitigate the backlog; and make Litigation affordable in line with the dictates of Overriding Principles of the Court [O2-Principles]. 65.Additionally, I wish to re-emphasize and reiterate the dictum in the case ofSaid Sweilem Gheithan Saanum v Commissioner of Lands (being sued through Attorney General) & 5 others [2015] KECA 284 (KLR), where the Court of Appeal expounded on the constitutional principle highlighted in Article 159[2][b] of the Constitution, 2010. 66.The court stated thus:“Justice shall not be delayed” is no longer a mere legal maxim in Kenya but a constitutional principle that emphasizes the duty of the advocates, litigants and other court users to assist the court to ensure the timely and efficient disposal of cases. The principles which are reiterated by sections 1A and 1B of the Civil Procedure Act are intended to facilitate the just, expeditious, proportionate and affordable resolution of disputes. The principle cannot therefore be a panacea which heals every sore in litigation, neither is it a licence to parties to ignore or contravene the law and rules of procedure. We agree, with respect, with the learned Judge’s conclusion that the suit in the High Court was not properly handled by the appellant’s advocate. The court cannot be invited to turn a blind eye in the face of such inordinate delay and in the absence of sufficient explanation. Conclusion. 67.From the analysis elsewhere hereinbefore, I am afraid that the Appellants’ have neither established nor demonstrated any improper or injudicious exercise of discretion by the Learned trial magistrate, to warrant the intervention of the Court. 68.On the contrary, what obtains in the record of the lower court demonstrates the lack of diligence and dilatoriness on the part of the Appellants; and by extension their counsel. Final Orders 69.Consequently, and in the premises, the final orders that commend themselves to the Court are:i.The Appeal be and is hereby Dismissed.ii.Costs of the Appeal be and are hereby awarded to the 1st, 5th to 13th; 15th, 16th, and 18th Respondents only.iii.The costs shall be borne by the 1st and 5th Appellants [who are the only subsisting Appellants]. 70.It is so ordered. DATED, SIGNED AND DELIVERED AT MERU ON 28TH MAY, 2026.OGUTTU MBOYA; FCIArb; CPM [MTI-EA].JUDGE.In the Presence of-Mr. Zakayo- Court AssistantMr. Murithi for the AppellantsMr. Makomere Holding Brief for Mr. Carl Peters for the 1st, 5th to 13th, 15th, 16th, and 18th RespondentsMs Miranda Senior Litigation Counsel for the 19th and 20th Respondents.No Appearance for the Rest of Respondents