https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5291

**REPUBLIC OF KENYA IN THE ENVIRONMENT & LAND COURT AT NAIROBI** **ELC NO. E001 OF 2025 [OS]** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **JOHN WAWERU NJUGUNA - 1ST PLAINTIFF/APPLICANT LUCY WANJIRU GITAU - 2ND PLAINTIFF/APPLICANT** **VS** **JANE WAMBUI NJUGUNA - DEFENDANT/RESPONDENT** **RULING** **(In respect of the Plaintiffs’ application dated 18/2/2026)** 1. The Plaintiffs’ application dated 18/2/2026 is for determination before this court. However, to put the application in context, I will give the chronology of events informing it. 2. From the record, the suit was commenced on 21/1/2025 vide the Originating Summons dated 20/1/2025. The matter came up for directions on 18/11/2025 before the Deputy Registrar. The Deputy Registrar directed that the matter be placed before Justice C.G. Mbogo on 19/1/2026. However, on 19/1/2026, the matter was not listed before the Learned Judge. On 20/1/2026 when the matter was listed before the Learned Judge, there was no appearance for the parties. The Learned Judge thus slated the matter for further mention on 11/2/2026 before him. The Deputy Registrar was directed to serve the mention notice to the parties. 3. Despite the court’s process server serving the mention notice on the parties on 20/1/2026, the parties did not attend court on 11/2/2026. The Learned Judge therefore noted that the Applicants were either unwilling or unable to prosecute the suit. In the circumstances, he dismissed the suit for want of prosecution. It is that dismissal order that forms the basis of the instant application. 4. The application is founded on the provisions of Articles 50 and 159 of the Constitution, Section 1A, 1B and 3A of the Civil Procedure Act, and Orders 12 Rule 7 and Order 51 Rule 1 of the Civil Procedure Rules. The Applicant prays for the following orders: 1. This Honorable Court be pleased to set aside the Orders issued on 11/2/2026 striking out/terminating the Plaintiffs'/Applicants' suit. 2. This Honorable Court be pleased to reinstate the Plaintiffs'/Applicants' suit for hearing and determination on merit. 3. The matter be fixed for mention and/or hearing on a priority basis. 4. The costs of this Application be in the cause. 5. The application is premised on the face of it and on the affidavits of John Waweru Njuguna, the 1st Plaintiff herein, and of Fredrick Fadey Oundo, the Applicants’ counsel on record, both dated 18/2/2026. The assertions in the said affidavits are substantially the same. The deponents aver that the Plaintiffs are keen to prosecute the matter to its logical conclusion. He states that the matter was scheduled for mention on 11/2/2026 before the Honourable Vincent Kiplagat. That when the matter was called, counsel on record was informed that the court file was missing. Consequently, counsel was directed to rejoin the session after about ten minutes to allow the file to be traced. However, upon returning as directed, counsel was kept in the lobby for over an hour without being readmitted to the proceedings. Subsequently, the Advocates on record received a notification from the Judiciary that the suit had been struck out or terminated for want of prosecution. 6. The deponents contend that the dismissal was not attributable to any lack of interest, indolence, or fault on their part or that of their Advocates on record. The Applicants further state that the suit was due for court-annexed mediation, following the Respondent’s expressed desire for alternative resolution. They assert that the Plaintiffs’ Advocate formally requested the court to refer the matter to mediation in a letter dated 18/6/2025. The Applicants assert that unless the dismissal orders are stayed and set aside, they will suffer grave prejudice, including the denial of their constitutional right to a fair hearing and the opportunity to have their case determined on its merits. They further assert that the present application has been made promptly, in good faith and in the interests of justice. 7. On July 15, 2020, Counsel for the Respondent was granted leave to file her Replying Affidavit within seven days. The court further directed that the application be considered through written submissions. The record indicates that the Respondent had previously been granted leave on March 2, 2026, prior to the transfer of the matter to this court. However, the Respondent did not file a response to the application. 8. However, both parties submitted their written arguments. The Applicants’ submissions are dated 22/7/2026, whereas the Respondent’s submissions are dated 21/7/2026. The court has duly reviewed and considered the Applicants’ submissions, which now constitute part of the court’s official record. **Analysis and Determination** 1. I have considered the application and the Applicants’ submissions thereto. The issues that commend themselves to me for determination are: 2. Whether the court should reinstate the suit as prayed. 3. Who should bear the cost of the application? **Whether the court should reinstate the suit as prayed.** 1. Before addressing the issue, I wish to comment on the Respondent’s submissions dated 21/7/2026. As noted earlier, the Respondent did not file any response to the application. Despite seeking and being granted leave to file a Replying, none was filed. The Respondent filed only the submissions. 2. It is settled law that submissions do not constitute pleadings or evidence. They are simply arguments parties use to present their case or issue to the Court. They do not take the place of evidence. As stated in Patrick Simiyu Khaemba v Kenya Electricity Transmission & another [2021] eKLR: “As such, since submissions are “marketing tools” for parties, they must contain what is being marketed… But counsel, and learned for that matter, often market their clients’ issues to judges and judicial officers generally through submissions.” Also, the Court of Appeal in Daniel Toroitich Arap Moi -vs- Mwangi Stephen Muriithi & Another [2014] eKLR stated that: “Submissions are generally parties’ “marketing language”, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed, there are many cases decided without hearing submissions but based only on evidence presented”. 1. In Nancy Wambui Gatheru vs. Peter W Wanjere Ngugi Nairobi HCCC No. 36 of 1993 his Lordship stated as follows: “Indeed, and strictly speaking submissions are not part of the evidence in a case. Submissions, to this court’s view, are a course by which counsel or able litigants focus the court’s attention on those points of the case that should be given the closest scrutiny in order to firmly establish a claim/charge or disprove it. Once the case is closed a court may well proceed to give its judgement. There are many cases especially where parties act in person where submissions are not heard. Even some counsel may opt not to submit. So, submissions are not necessarily the case.” 1. From the above decisions, it is evident that submissions do not constitute pleadings or evidence. Therefore, this Court cannot consider submissions that are not anchored in any response. 2. Turning to the issue for determination, the law applicable for setting aside judgment or dismissal is Order 12 Rule 7 of the Civil Procedure Rules which provide as follows; “Where under this Order judgment has been entered or the suit has been dismissed, the court, on application, may set aside or vary the judgment or order upon such terms as may be just.” 1. It is trite law that an order for reinstatement is discretionary and not as a right as held by the Court of Appeal in the case of; Tabuche -vs- Tinga & 2 Others [2024] KECA 551 (KLR) the Court of Appeal stated: - “43. The question as to whether the appellant was entitled to reinstatement of his suit as of right finds answer in Black’s Law Dictionary (Tenth Edition), which defines judicial discretion as: “The exercise of judgment by a judge or court based on what is fair under the circumstances and guided by the rules and principles of law; a court’s power to act or not act when a litigant is not entitled to demand the act as a matter of right.” [Emphasis added] 1. Reinstatement of a suit dismissed for want of prosecution is a discretionary remedy, not as of right. In any event, each case depends on its own circumstances. In addition, in Kamau & Another v Inspector General of Police & Another [2026] KEHC 1038 (KLR), the Court of Appeal outlined the factors a court should consider in determining whether to exercise its discretion and held that: “11. We have carefully considered this application. To set aside an order for dismissal, the applicant must jump two hurdles. The first is to make the application within 30 days from the date of the order of dismissal. The applicant has successfully jumped that hurdle. The second is that the applicant must present sufficient cause for the failure to attend Court on the appointed date. What will constitute sufficient cause depends on the circumstances of each case. But in our perception, sufficient cause connotes an explanation of such quality or value as would justify setting aside the order of dismissal; a reason that is adequate in law, showing why the applicant’s request to set aside the order of dismissal should be granted.” 1. This Court is mandated to exercise its discretion judiciously and for the purpose of avoiding injustice and hardship that may result from an excusable error. 2. In the present case, it has been deponed that the matter was slated for mention before the Deputy Registrar on 11/2/2026. That the court file was, however, missing, and he was directed to wait while the file was being traced. That he waited in the lobby but was not re-admitted, only to receive a notification that the matter had been dismissed. 3. I note that before the dismissal, the matter had come up three times, but the Plaintiffs’ counsel appeared only once. Further, although it is alleged that Counsel appeared before the Deputy Registrar on 18/2/2026, the matter was never slated for mention on that date. From the Process Server’s email dated 20/1/2026, the parties were categorically notified that the matter would be mentioned before Justice C.G. Mbogo on 11/2/2026. 4. In the case of Shah v. Mbogo & Another (1967) EA 116 referred to by the applicants , the court outlined guidelines for consideration in exercising the discretion and the importance for an applicant to show sufficient cause. Further that the court must aim at avoiding injustice resulting from an accident, inadvertence or excusable mistake or error. 5. Has sufficient cause been demonstrated to warrant the exercise of the court's discretion in favour of the Applicants? Evidently not! Counsel allegedly appeared before the Deputy Registrar on 18/2/2026, yet they had been categorically notified that the matter would be mentioned before Justice C.G. Mbogo on 11/2/2026. 6. The question of whether a counsel’s mistake should be visited upon a client has been the subject of many judicial pronouncements, with the courts being unanimous that where the mistake is excusable, it should be visited upon the client, and that the court must at all times lean towards upholding justice. See Belinda Murai & Other –vs- Amos Wainaina (1978) KLR 278; Phillip Chemwolo & Another –vs- Augustine Kubebe (1982-88) KAR 7. Courts have also held that the Clients are duty-bound to follow up on the prosecution of their case and cannot hide behind the Advocate’s mistake. In the case of Gerald Mwithia –vs- Meru College of Technology & Another [2018] eKLR, the court held that;- “Clients cannot continue to hide behind the failure of their advocates to perform certain required actions on their part and that it is incumbent upon the clients to follow up the progress of their case, this premised on the fact that the case does not belong to the advocate but the client.” 1. It has not been shown that the Plaintiffs sought to enquire about the progress of their matter. They were not diligent in prosecuting their matter. More so, in this era, parties to a suit are electronically notified of the next court action in their matters. 2. However, I note that the Plaintiffs filed the instant application without any inordinate delay. The application was filed just a week after the dismissal of their suit. The suit was dismissed on 11/2/2026, and the instant application was filed on 18/2/2026. 3. Courts exist to serve substantive justice for all parties to a dispute before them. This aligns with the Constitutional provisions of Article 159 (2) (d). Dismissal of a suit is a draconian act that drives a litigant away from the seat of justice, and discretion ought to be exercised judiciously. This position was amplified in the case John Nahashon Mwangi –vs- Kenya Finance Bank Limited (in Liquidation) [2015] eKLR as follows: - “Courts should sparingly dismiss suits for want of prosecution for dismissal is a draconian act which drives away the plaintiff in an arbitrary manner from the seat of judgment. Such acts are comparable only to the proverbial ‘Sword of the Damocles’ which should only draw blood where it is absolutely necessary.” 1. Therefore, and in the interests of justice, I will exercise my discretion in favour of the Plaintiffs and allow the application dated 18/2/2026. Subsequently, the order dated 11/2/2026, dismissing the Plaintiffs’ suit in its entirety for non-attendance, is hereby set aside, and the suit is reinstated. 2. Accordingly, the application dated 18/2/2026 is allowed. There shall be no orders as to costs. 3. It is so ordered **DELIVERED, DATED AND SIGNED AT NAIROBI THIS 14TH DAY OF AUGUST 2026 VIA MICROSOFT TEAMS.** **J. G. KEMEI** **JUDGE** **Delivered virtually in the presence of:** 1. Mr Oundo for the Plaintiffs 2. N/A for the Defendant 3. CA- Mr Amos