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Oduori & another v Gichira & another (Environment and Land Appeal E065 of 2025) [2026] KEELC 3765 (KLR) (16 June 2026) (Judgment) Neutral citation: [2026] KEELC 3765 (KLR) Republic of Kenya In the Environment and Land Court at Thika Environment and Land Appeal E065 of 2025 JA Mogeni, J June 16, 2026 Between Collins Awori Oduori 1st Appellant Priscilla Nyanchora Ogamba 2nd Appellant and Joyce Muthoni Gichira 1st Respondent Daniel Gitau Kuria 2nd Respondent (Being An Appeal arising from the Ruling of Hon. Dr. Victor Wakumile CM delivered on 15th May 2025 in Thika Chief Magistrates ELC Case No. 64 of 2018) Judgment 1.Vide the Memorandum of Appeal dated 13/06/2025, the Appellant Appealed against the Ruling in Thika MC ELC No. 64 of 2018 dated 15/05/2025 on the grounds that:-1.That the Learned Magistrate erred in law by upholding the dismissal of the Appellant’s case for want of appearance during one hearing on 27/08/2024 when the Court was on transfer and proceeding to only deal with the 1st Respondent’s Counter-claim thus denying the Appellants the right to fair hearing of disputes as provided in Article 50 of the Constitution.2.That the Learned Magistrate erred in law by giving much preeminence to the procedural technicality of the Appellants’ failure to only appear once for hearing when the Court was on transfer over the substantive issues raised in the main suit contrary to Article 159 (2) (d).3.That the Learned Magistrate erred in law and fact by upholding the dismissal of the Appellants’ case for want of appearance on 27/08/2024 when the Appellants’ Counsel was inadvertently not present when the Court was issuing alternative dates because it was on transfer thus punishing the Appellants for missteps/mistakes of their legal Counsel and denying the Appellants the right to access to justice provided under Article 48 of the Constitution.4.That the Learned Magistrate misapplied himself as regards the upholding of substantive justice because he denied the Appellants’ application seeking the summoning of the County Surveyor in prayer 4 of the Motion Application in order for Surveyor to testify on claims raised in the 1st Respondent’s defense that there was fraud during subdivision leading her to do an erroneous transfer to the Appellants.5.That the Learned Magistrate wholly erred in law and fact in arriving at the said decision thereby suffering miscarriage of just and substantial loss on the Appellants. 2.Reasons Wherefore Appellants Pray That:i.The Appeal herein be allowed.ii.The impugned Ruling given on 15/05/2025 be set aside and substituted by an order (s) sought in Appellants’ Motion Application dated 10/12/2024.iii.The hearing and disposal of the matter be transferred to another Magistrate of competent jurisdiction.iv.Costs of the Appeal be borne by the Respondent. 3.A brief background of the Appeal as can be gathered from the Record of Appeal dated 21/07/2025 and is that the Appellant filed a suit against the Respondents herein in the MCELC CASE NO.64 OF 2018 which was subsequently vide Court order dated 27/08/2024 dismissed for want of appearance and the application for review and reinstatement was also dismissed vide the Court order dated 15/05/2025. 4.The record shows that on 05/10/2022 Fredrick Ogamba testified as PW1 stating that he had the Power of Attorney from the second Plaintiff who is his sister and he produced it in this bundle at pages 11-12. Due to poor connectivity which the Court noted the matter was adjourned and PW1 was stood down by the Court giving another hearing date of 18/04/2023 for the matter to proceed in open Court. 5.On 18/04/2023 when the matter came up for hearing the Court record shows that only the 1st Defendant appeared in Court. The Court issued a new hearing date for 05/12/2023 and directed that hearing notice to issue. However, on 05/12/2023 the 1st Defendant’s Counsel Mr Kanyi is the one who appeared and the matter was scheduled for hearing at 11:30 a.m subject to the confirmation of the Court. 6.When the Court sat at 11:35 am there was no appearance of all parties and the hearing was adjourned to 27/08/2024. On the said date only the 1st Defendant appeared and informed the Court that he had served. The Court it is recorded was to look for the Affidavit of Service on Case Tracking System (CTS) and scheduled the mention for 12:30 pm. When the Court resumed at 1.25 pm the 1st Defendant’s Counsel informed the Court that they had served the Plaintiff and even filed an Affidavit of Service. Subsequently the 1st Defendant prayed that the Court dismisses the suit for want of prosecution and their suit be upheld and Judgment entered against the Plaintiff as per the 1st Defendant’s Counter-claim. 7.The Court noted that the Plaintiff was duly served with hearing notice and proceeded to dismiss the suit against the 1st Defendant for want of prosecution and a hearing date for the Counter-claim was issued for 10/12/2024. Again, the Plaintiff according to the 1st Defendant was served but they did not attend Court so the Counter-claim was heard as undefended. 8.Subsequently the Plaintiff’s Counsel attended Court on 21/01/2025 having filed their Notice of Motion seeking review and reinstatement of their suit dated 10/12/2025. 9.The same was dismissed vide the Ruling of Hon. Dr. Victor Wakumile, CM on 15/05/2025 and thus the Appeal seeking setting aside of the order and substituted by an order sought in the Appellant’s Motion application dated 10/12/2024. And transfer of the matter to another Magistrate of competent jurisdiction plus costs. 10.The record shows that the application was heard by way of written submissions and vide its Ruling dated 15/05/2025 the trial Court found that the Applicant had not denied service. They even admitted to have affixed their official stamp upon receipt of hearing notices. The Court thus states that the Plaintiffs were afforded ample opportunity to prosecute their suit but failed to do so only to resurface months later with a what the Court termed as an application devoid of legal merit. The application was termed by the Court as an abuse of Court process and so it was dismissed. 11.The Appellant was aggrieved by the Ruling and preferred the present Appeal. Written Submissions 12.Pursuant to directions given on 19/03/2026, the Appeal was heard by way of written submissions. 13.Written submissions dated 03/03/2026 were filed on behalf of the Appellant by the firm of Ndemo, Sagini & Co. Advocates and written submissions dated 16/03/2026 were filed on behalf of the 1st Respondent by the firm of Kanyi Kiruchi & Co. Advocates. The 2nd Respondent did not file any submissions having not participated in the suit even in the Magistrate’s Court. 14.In their written submissions the Appellant started by giving a brief background on the Appeal by stating that this Appeal, filed on 25/07/2025, impugns the Ruling of the Thika Chief Magistrates’ Court delivered by Hon. Victor Wakumile on 15/05/2025, wherein the Learned Trial Magistrate declined to reopen the Appellants’ case following its dismissal on 27/08/2024. 15.The Appellants submit that they primarily seek the intervention of this Honourable Court to set aside the said refusal and grant the prayers contained in their Notice of Motion dated 10/12/2024, specifically for the review and setting aside of the dismissal order to facilitate a hearing on the merits. Central to the Appellants' grievance is the contention that the trial Court erred in closing their case after an inadvertent non-attendance by their Counsel, thereby prioritizing procedural technicalities over the constitutional dictates of substantive justice. 16.The Appellants submit that this Appeal is properly grounded under Order 43 Rule 1(x) of the Civil Procedure Rules, which provides for an Appeal as of right from orders issued in review applications under Order 45. On the substance of the Appeal, the Appellants invoke the protective ambit of Article 50 of the Constitution of Kenya, 2010, asserting that the right to a fair hearing is an immutable pillar of our legal system. They argue that the trial Court's focus on the singular instance of non-attendance, without regard for the broader interests of justice, constitutes a draconian application of procedural rules. By relying on the principle established in Nuru Ruga Ali & Another vs. Edwin Kiptoo, Malindi Civil Appeal No. E023 of 2020, wherein the High Court set aside the Lower Court's Ruling closing the Appellants' case without hearing them, holding that Courts ought not apply their ancillary powers to regulate procedure in a draconian manner so as to deny litigants their constitutional rights under Articles 48 and 50, save in substantial and compelling circumstances, and that litigants ought not be punished for the blunders of their advocates unless the claimant is shown to have been equally guilty of laches. 17.The Appellants maintain that litigants should not be visited with the sins or blunders of their Advocates, particularly where such errors result in the total shut-out of a party from the seat of justice. 18.Furthermore, the Appellants emphasize that the denial of their application prevents the ventilation of critical issues regarding the suit properties. The 1st Respondent’s Defence alleges a misnumbering during the survey process which purportedly led to a mistaken transfer of land; consequently, the Appellants seek to summon the County Surveyor as a vital witness to clarify these technical anomalies. The Appellants contend that to deny them the opportunity to lead evidence and cross-examine on this substantive issue is a violation of their right of access to justice under Article 48 and the oxygen principle embodied in Article 159(2)(d) of the Constitution. They therefore implore this Court to allow the Appeal, set aside the dismissal, and permit the matter to proceed to a full hearing so that the dispute may be determined on its merits rather than on technical defaults. 19.The 1st Respondent in their written submissions, submit and vehemently oppose the Appeal, characterizing it as frivolous, scandalous, and a manifest abuse of the Court process. The Respondent contends that the Appellants, despite being the Plaintiffs in a suit initiated as far back as 2018, have exhibited gross indolence and only woke up from their slumber five (5) months after their case was dismissed for non-attendance. Through the Replying Affidavit of Joyce Muthoni Gichira, the Respondent asserts that the Appellants were duly served with hearing notices, a fact corroborated by the Appellants’ own physical stamps on the various notices served at their offices. The Respondent maintains that the Appellants' failure to attend Court was not accidental but a deliberate attempt to prosecute the matter on their own terms, thereby causing the Respondent irreparable loss and the torture of prolonged litigation. 20.Regarding the legal threshold for review, the Respondent submits that the Appellants have failed to meet the strict criteria established under Section 80 of the Civil Procedure Code and Order 45 Rule 1. Relying on the principles set out in Republic vs. Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] eKLR, as cited in David & 2 Others v Bakaya (Civil Appeal E200 of 2022) [2025] KEHC 12790 (KLR) (Civ) (18 September 2025), the Respondent argues that a Court can only review its decision for an error apparent on the face of the record or for other sufficient reasons, none of which have been demonstrated here. The Respondent further cites Peter Ngigi Kigira v Fredrick Nganga Kigira [2022] eKLR to underscore that the Court should not indulge a party and Counsel who take the judicial system for a ride by appearing only when convenient. 21.The Respondent further invokes the equitable maxim that equity does not aid the indolent, asserting that the Appellants’ inordinate delay in prosecuting a 2018 matter is inexcusable. Based on the holding in Samuel Kiti Lewa v Housing Finance Co. of Kenya Ltd & another [2015] eKLR, the Respondent argues that the Court's discretion to reopen a case must be exercised judiciously to ensure it does not prejudice the opposite party or serve merely to fill gaps in evidence. Finally, the Respondent submits that as the successful party, she is entitled to costs pursuant to the principles in DGM v EWG [2021] eKLR, which approved the words of Murray C.J. in Levben Products vs. Alexander Films (SA) (PTY) Ltd 1957 (4) SA 225 (SR) and the findings in Party of Independent Candidate of Kenya & Another vs Mutula Kilonzo & 2 Others (2013) eKLR. The Respondent therefore implores the Court to dismiss the Appeal with costs. Issues for Determination 22.The cardinal issues falling for determination in this Appeal are two-fold:i.Whether the trial Court properly exercised its discretion in declining to reopen the Appellants' case following its dismissal for want of prosecution on 27th August 2024; andii.Whether in so doing, the trial Court violated the Appellants' constitutional rights to a fair hearing and access to justice as enshrined under Articles 48, 50 and 159(2)(d) of the Constitution of Kenya, 2010. Analysis and Determination 23.On the first issue, the Court is persuaded that the circumstances obtaining herein tilt heavily in favour of the Appellants. It is now trite law that Courts exist to dispense substantive justice and not to serve as arenas for technicalities. The Supreme Court of Kenya in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR stated that:“"... The mistakes of Counsel should not be visited upon the party ... However, this is not a licence for Counsel to be negligent. We have considered the circumstances of this case, and we are of the view that the Applicant should not be denied the opportunity to have his Appeal heard on merit." 24.That principle resonates forcefully in the present matter. The record discloses that the Appellants' non-attendance on 27/08/2024 was occasioned by the inadvertent absence of their Counsel at a time when the Court was on transfer and issuing alternative dates a circumstance that cannot, in good conscience, be laid squarely at the feet of the litigants themselves. The trial Court, in its Ruling of 15/05/2025, anchored its decision largely on the fact that the Appellants had received and stamped hearing notices, yet said nothing of whether the litigants personally contributed to the failures in attendance. In Shah v Mbogo [1967] EA 116, the Court of Appeal for East Africa held that the discretion to set aside an ex parte order;“should be exercised in such a way as to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake and that the discretion should not be exercised in favour of a party whose default was wilful." 25.There is nothing on the record to suggest that the Appellants' non-attendance was wilful. A suit commenced in 2018 and prosecuted through several hearing dates, including the testimony of PW1 on 5/10/2022, cannot reasonably be characterised as a suit that the Appellants had abandoned or chose to prosecute only on their own terms. 26.On the second issue, this Court is of the considered view that the constitutional dimension of this Appeal cannot be wished away by procedural formalism. Article 159(2)(d) of the Constitution enjoins every Court to administer justice without undue regard to procedural technicalities. In the case of Alphose Omboga Obaga v The Republic [2019] eKLR (Petition No. 31 of 2019), the High Court affirmed that the right to a fair hearing is not a mere statutory privilege but a fundamental constitutional guarantee that Courts are duty-bound to protect. The High Court in Malindi Civil Appeal No. E023 of 2020, Nuru Ruga Ali & Another v Edwin Kiptoo (2020), in terms that this Court finds wholly applicable to the present matter, stated that;“It's for the Court to refrain from punishing litigants for mistakes or blunders made by their advocates without demonstrating that the claimant to the suit was equally guilty of laches" and that Courts' ancillary powers to regulate procedure "should not be applied in a draconian manner to deny litigants a right to access Court under Article 48 and a right to a fair hearing under Article 50 of the Constitution, unless in substantial and compelling circumstances." 27.No such substantial and compelling circumstances have been demonstrated here. The 1st Respondent's reliance on Samuel Kiti Lewa v Housing Finance Co. of Kenya Ltd & Another [2015] eKLR and Peter Ngigi Kigira v Fredrick Nganga Kigira [2022] eKLR, whilst instructive on the Court's duty to guard its discretion jealously, does not assist her cause in the present circumstances, for those authorities contemplate wilful and inexcusable conduct a threshold that the record herein does not establish against the Appellants. The additional prayer touching on the summoning of the County Surveyor to testify on the alleged misnumbering of the suit properties speaks directly to substantive justice. The 1st Respondent's own defence raises the issue of a fraudulent or erroneous subdivision, and it would be incongruous for this Court to shut out evidence that goes to the very root of the dispute. Disposal Orders 28.Having considered the Record of Appeal, the written submissions filed by both parties, the applicable law, and the authorities placed before this Court, this Court finds and holds that the Appeal herein is merited and issues the following orders:i.The Ruling of Hon. Dr. Victor Wakumile, Chief Magistrate, delivered on 15/05/2025 in Thika MC ELC No. 64 of 2018, declining to reopen the Appellants' case, is hereby set aside.ii.The Appellants' Notice of Motion dated 10/12/2024 is hereby allowed, and the dismissal order of 27/08/2024 is hereby set aside.iii.The matter is remitted for hearing on merit before a different Magistrate of competent jurisdiction in the interest of justice and impartiality.iv.Each party shall bear their own costs of this Appeal.Orders Accordingly. DATED, SIGNED AND DELIVERED AT THIKA THROUGH MICROSOFT TEAMS ON THIS 16TH DAY OF JUNE 2026............................MOGENI JJUDGEIn the presence of:-Mr. Sagini for the 1st and 2nd AppellantsMr. Wachira holding brief for Mr. Kanyi for the 1st Respondent2nd Defendant - AbsentMs. Lilian – Court Assistant...........................MOGENI JJUDGE