https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3140

Omar (Suing as the Secretary and on Behalf of All Members of Nasib Farm Limited) v Tatu & 2 others (Environment and Land Case Civil Suit 640 of 2014) [2026] KEELC 3140 (KLR) (21 May 2026) (Ruling) Neutral citation: [2026] KEELC 3140 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Case Civil Suit 640 of 2014 MN Kullow, J May 21, 2026 Between Mohamed Omar (Suing as the Secretary and on Behalf of All Members of Nasib Farm Limited) Plaintiff and Ahmed Abdi Tatu 1st Defendant Abdikadir Adan Hussein 2nd Defendant Iftin Ali 3rd Defendant Ruling Introduction 1.In the Notice of Motion application dated 6th June 2025, the Applicant sought the following orders:a.That this Honourable Court be pleased to vary, and/or set aside the order issued on 9th June 2025 by Hon. Lady Justice Judy Omange dismissing the Plaintiff's suit for non-attendance.b.That upon granting prayer 1 above, the suit be reinstated for hearing and determination on its merits.c.That the costs of this application be in the cause. 2.The Application was supported by an Affidavit sworn by Jared Nyaoke AND three other affidavits sworn on an even date on the following grounds inter alia that the suit had been dismissed for non-attendance was not deliberate by the plaintiff’s counsel who logged in late to court after the matter had been called That the plaintiff has an arguable claim and has been desirous of prosecuting the matter hence need to have the matter reinstated. 3.The applicants through the affidavits of sworn by Mohamed Omar, Ibrahim Mohammed Abdullahi and Joseph Mutinda deponed that they were the plaintiff’s witnesses and had travelled on the said date of hearing from Garissa to Nairobi to participate in the hearing and indication of the plaintiff’s readiness to prosecute the matter. Respondent’s case 4.The Respondent opposed the application through filing grounds of opposition dated 24th October 2025 and a replying affidavit sworn on the 5th November 2025 by Peter Amuga their advocate who deponed that the matter was dismissed for non-attendance the court having satisfied itself that there was nobody appearing neither the plaintiff nor their advocates. That the allegations of the plaintiffs not being given a chance on the online platform having logged in late were false as the court before giving the orders was satisfied of the non-attendance. That the plaintiff had been indolent in prosecuting the matter evidenced by the many adjournments he had made.The application was canvassed by way of written submissions the applicant filing submissions dated 20th January 2026 and further supplementary submissions dated 10th April 2026 whereas the respondent filed submissions dated 18th March 2026. Applicant’s submissions 5.The applicant’s counsel submitted that reinstatement of a suit is discretionary to the court which should be done judiciously in line with articles 50 and 159 of the constitution. He relied on the provisions of order 12 rule 7 of setting aside ex parte judgement and the case of Mwangi S. Kimenyi Vs Attorney General and another Misc Civil, suit no 720 of 2009 that gave the conditions to be made by a party seeking reinstatement of a suit which conditions the applicant submitted had been met having produced evidence that the witnesses had travelled to Nairobi in readiness of the hearing. That they had demonstrated that the delay in logging in should be attributed to their counsel as they were present in chambers waiting for him to address the court.Counsel submitted that the advocates on record previously had admitted to logging in late which is an excusable mistake and should not be attributed to the plaintiff. He further submitted that the matter being a land matter, should be heard on merit hence need to have the matter reinstated.Lastly counsel submitted that no prejudice will be occasioned to the respondents that cannot be compensated by costs whereas if the reinstatement is not allowed they will suffer irreparable harm as they will have been condemned unheard Respondent’s submissions 6.The respondent reiterated the contents in its replying affidavit that counsel for the applicant never logged in in court on the date of 9th June 2025 and further the court was satisfied of non-attendance before dismissing the suit .That the application was based on falsehood and applicants not warranted to the orders He further submitted that no compelling reasons had been given to warrant reinstatement .Counsel relied on a number of cases touching on the issue addressed including Gitau Karonga Vs Mwenya Karonga Civil Application No 35 of 1990 and Joel Vs North & Son Ltd (2023)eKLR. Analysis and Determination 7.Having looked at application, the replying affidavit and Submissions from both parties, the issue arising for determination isWhether the ex parte orders of 9th June 2025 should be set asideThe law on setting aside of ex parte orders is found under Order 12, rule 7 of the Civil Procedure Rules, 2010 which provides thus; “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.In Esther Wamaitha Njihia & two others Vs Safaricom Ltd (2014) eKLR, the court held inter alia that; "The discretion is free and the main concern of the courts is to do justice to the parties before it (see Patel v E.A. Cargo Handling Services Ltd.) The discretion is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error but is not designed to assist a person who deliberately sought, whether by evasion or otherwise, to obstruct or delay the cause of justice (see Shah Vs Mbogo). The nature of the action should be considered, the defence if any should also be considered; and so should the question as to whether the plaintiff can reasonably be compensated by costs for any delay bearing in mind that to deny a litigant a hearing should be the last resort of a court. (See Sebei District Administration Vs Gasyali) It also goes without saying that the reason for failure to attend should be considered." 8.It then follows that the decision whether or not to set aside an ex parte order is discretionary. The discretion is intended so to be exercised to avoid injustice and hardship resulting from accident, inadvertence 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. The Court of Appeal in the case of CMC Holdings Ltd Vs James Mumo Nzioki Civil Appeal No 329 of 2001 [2004] eKLR, stated that this wide discretion of the court is intended to ensure that a litigant does not suffer injustice or hardship as a result of among other things an excusable mistake or error. The test which the courts have set to determine whether or not to set aside ex-parte orders is “whether sufficient cause has been shown”.In Wachira Karani Vs Bildad Wachira [2016] eKLR Mativo J held that: -“Sufficient cause is thus the cause for which the defendant could not be blamed for his absence. Sufficient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a straight-jacket formula of universal application. Thus, the defendant must demonstrate that he was prevented from attending court by a sufficient cause...” 9.The Applicant stated that failure to appear on record on the 9th June 2025 was not intentional on their part rather it was the advocate’s fault since he logged in late. The respondent has denied the claims indicating the advocate of the plaintiff never logged in the system hence dismissal. I have perused the transcript attached to the respondent’s replying affidavit and his averments are true that no one was logged in as at the time of dismissal. This notwithstanding, this court has inherent powers to give orders which are necessary to meet the ends of justice. Section 3A Civil Procedure Act provides: “Nothing in this Act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.This is further buttressed by Section 1A & 1B of the Civil Procedure Act which provides for overriding objectives of the Act which is to facilitate the just and expeditious resolution of disputes. The applicant have indicated that the witnesses had travelled from Garissa to Nairobi evidenced by a receipt attached to the supporting affidavit of Ibrahim Mohammed Abdullahi. It is my considered view that the presence of the witness in Nairobi was an indication of the desirous need of the applicant to attend to the hearing. He has further deponed that he ws present in the advocate’s chambers waiting to have the advocate be admitted on the online platform. 10.In my view, the applicant has demonstrated sufficient cause upon which the court should exercise its discretion being that the witnesses were in Nairobi all the way from Garissa. They have indicated their willingness to prosecute the matter being a land matter that requires it to be determined on merit. Furthermore, the application has been made without inordinate delay indicating the applicant’s desire to have them prosecute their matter. Courts exist to serve substantive justice for all parties to a dispute before it. The only time when such justice can be served is to have parties present their issues and be heard on merit rather than being condemned unheard as captured in See Article 50(1) of the Constitution of Kenya 2010. It therefore follows that every person ought not to be shut out from accessing court or having his day in court. Final disposition 11.The upshot of the matter is that I allow the application and make the following ordersi.The order dismissing the suit for non-attendance issued on the 9th June 2025 by Hon Lady Justice Judy Omange is hereby set aside.ii.The suit is hereby reinstated and the Applicant shall fully prosecute the reinstated suit within the next 60 days from the date of this ruling, failure to which the suit will stand automatically dismissed for want of prosecution, with costs to the Respondents.iii.The costs of the Motion are awarded to the Respondents.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 21ST DAY OF MAY, 2026.MOHAMMED N. KULLOWJUDGERuling delivered in the presence of: -N/A for the Plaintiff/ApplicantN/A for the RespondentsPhilomena W. Court Assistant