Zakumera (Suing as the Administrator of the Estate of the Late Iddi Ashid Mwavumbani) v Gitau (Land Case E017 of 2025) [2026] KEELC 3886 (KLR) (17 June 2026) (Ruling)

Zakumera (Suing as the Administrator of the Estate of the Late Iddi Ashid Mwavumbani) v Gitau (Land Case E017 of 2025) [2026] KEELC 3886 (KLR) (17 June 2026) (Ruling) Neutral citation: [2026] KEELC 3886 (KLR) Republic of Kenya In the Environment and Land Court at Kwale Land Case E017 of 2025 LL Naikuni, J June 17, 2026 Between Salim Idd Zakumera (Suing As The Administrator Of The Estate Of The Late Iddi Ashid Mwavumbani) Applicant and Wilson Burugu Gitau Respondent Ruling I. Introduction 1.The Ruling of this Honourable Court regards the Notice of Motion application dated 4th March 2025. It was brought by Salim Idd Zakumera, the Applicant herein. It was brought under the provision of Sections 1A, 1B & 3A of the Civil Procedure Act, Cap. 21. 2.Upon effecting service of the Notice of Motion application dated 17th March, 2025, Mr. Wilson Burugu, the Respondent herein opposed the application through filing of a Replying Affidavit dated 5th June 2025. II. The Applicant’s case 3.The Applicant sought for the following orders:-a.Spentb.That the Honorable Court do order that the Deputy Registrar Environment and Land Court Mombasa to reconstruct a skeleton file in regards to the said matter and upon the reconstruction, the reconstructed file be merged with the skeleton file.c.That the court do order that the Deputy Registrar - Environment and Land Court Mombasa to transfer the (Petition number 13 of 2013) to the Magistrates Court at Kwale, Environment and Land Court.d.That costs of this application be provided for.e.SUCH further and/or other orders be granted as the court may deem fit and expedient. 4.The application by the Applicant herein was premised on the grounds, testimonial facts and averments made out under the 16 Paragraphed Supporting Affidavit of Salim Idd Zakumera, the Applicant herein with nine (9) annextures marked as “SZ - 1 - 9” sworn and dated 4th March 2025 averred that:a.He was a male adult of sound mind and disposition suing as the administrator of the estate of the Plaintiff hence conversant with the facts of this matter, hence competent to swear this affidavit. Attached herein was copy of Limited Grant of Letter of administration issued on the 4th of October 2010 for the purposes of pursuing a civil suit and marked as “SZ – 1”.b.On 8th of August, 2023, he filed a Petition in the High Court of Kenya at Mombasa being Petition No. 13 of 2012 which copy was attached and marked as “SZ – 2” was a copy of the Petition.c.The Respondent in the matter filed his replying affidavit on the 28th of March, 2012.d.The Respondent filed a preliminary objection and whereby Honorable EDWARD M. MURITHII gave directions on the 10th day of December, 2013 that the dispute be transferred to the Environment and Land Court for hearing and disposal in accordance with the directions to be given by that court. Annexed and marked as “SZ – 4” was a copy of the court’s ruling.e.The matter was then transferred to the Environment and Land Court at Mombasa before Hon. Justice A. Omollo who gave orders on the 28th day of April, 2016 upon reading the Notice of Motion application by the Petitioner dated 13th November, 2013. Annexed and marked as “SZ – 5” was a copy of the orders dated 16th June, 2016.f.He had previously lodged a complaint at the ombudsman office and on the 14th day of July, 2016, and received a response from the said office. Attached herein and marked as “SZ – 6” was a copy of the letter from the office of the Ombudsman.g.As per the court directives issued by the Judge on the 16th day of June, 2016, the Respondents Identity card and that of the Deponents’ father were forwarded to the county registrar of persons in Kwale and upon verification, the identity card number allegedly belonging to the deceased was found to belong to someone else by the name Kimuyu Ndambuki and upon verification of the deceased identity card, the details appeared to be correct. Annexed and marked as “SZ – 7” were copies of verification documents from the Land Registrar Kwale.h.The transfer documents used to transfer the title from the deceased to the Respondent all captured the deceased’s identity card number as the one belonging to one Kimuyu Ndambuki and nowhere was the identity of the Respondent ever captured apart from his name and address only. Annexed and marked as “SZ – 8” were copies of the transfer of land documents.i.The findings from the County Registrar of persons were never submitted in court as they pointed out to an outright case of fraud using counterfeit identity cards.j.On the 22nd of November, 2017, the court made a ruling setting aside the ruling/order made earlier on the 30th of November, 2016 dismissing the Petition for non - attendance and directed that the Petition be fixed for full hearing. Annexed and marked as “SZ – 9” was a copy of the court's ruling dated 22nd November, 2017.k.The matter was never fixed for hearing and attempts to follow up on the same at the registry in Mombasa were met with the response that the matter was take out as a result of it being a very old matter.l.The matter had never proceeded to its logical conclusion and hence it was in the interest of justice and fairness that this application was allowed.m.The Respondent herein would not suffer any prejudice and or damage whatsoever, in the event the orders sought herein are issued. III. The response by the Respondent 5.While opposing the application, the Respondent filed a 16 Paragraphed of the Replying Affidavit sworn by Wilson Burugu Gitau dated 5th June 2025 and with 4 annexture marked as “WBG - 1 - 4” annexed thereto. The Deponent averred that: -a.He was the Defendant/Respondent herein, hence competent to swear this affidavit.b.He had read and understood the contents of the Plaintiff/Applicant's Notice of Motion application dated 4th March,2025 and the Supporting Affidavit thereto, and wish to strongly oppose the same for the reasons set out herein.c.The Plaintiff/Applicant sought to transfer a suit (Petition No. 13 of 2012) that was substantively being handled by the Environment and Land Court at Mombasa, having been transferred from the High Court following the ruling delivered on 10th December, 2013 by Hon. Justice E.M. Muriithi. A copy of the ruling was annexed hereto and marked as "WBG - 1”d.He had been further advised by his Advocates on record that the Plaintiff had not laid any basis for seeking the transfer of the suit to the Magistrates Court in Kwale.e.The application herein was therefore incompetent and amounts to an abuse of the process of this Honourable Court.f.Further, he had been advised by his Advocates on record that no justification whatsoever had been given for the alleged need tore construct the court file.g.The Plaintiff had not produced any evidence in the form of a certificate to demonstrate that the court file at the Environment and Land Court in Mombasa was lost or untraceable.h.Notably, the Plaintiff's suit was dismissed twice for want of prosecution. First it was on 30th November 2016, due to repeated adjournments and failure to prosecute by the Plaintiff. It was then reinstated by Hon. Justice Omollo vide a Ruling delivered on 22nd November, 2017, a copy of the Ruling is annexed hereto and marked “WBG - 2”.i.While, the suit was dismissed for a second time on 8th November, 2018, by Hon. Justice Nelly Matheka, when again the Plaintiff failed to attend court or take steps to prosecute the matter. A copy of the relevant Court Order was annexed hereto and marked as "WBG - 3".j.Since the last dismissal was on 8th November, 2018, a period of over six (6) years has lapsed without any effort by the Plaintiff to reinstate the suit until the present application was filed in this court in March 2025.k.He verily believe that litigation must come to an end, and courts should not lend their process to parties who had been indolent and dilatory in the conduct of their own case.l.The vague and unsupported allegation that the matter was being taken out of the Mombasa registry “because it was old” was legally untenable and ridiculous. There existed no law or practice direction that permitted the “taking out” of matters on account of their age.m.He was now a man of advanced age (85 years), and it was unjust and oppressive to seek to subject him to fresh litigation in a suit that was filed 13 years ago and was twice dismissed for want of prosecution. A copy of his National Identity Card was annexed hereto and marked as “WBG - 4.”n.Therefore the present application was clearly brought as an afterthought and was maliciously intended to harass him and re - open a matter that was long dismissed.o.He urged this Honourable Court to dismiss the application with costs.p.What was stated hereinabove was true and correct to the best of his knowledge, information and believe save what was deponed to on information and belief sources which he had disclosed hereinabove. IV. Submissions 6.On 12th June, 2025 while all the parties were present in Court, they were directed to have the Notice of Motion application dated 7th March, 2025 be disposed of by way of written submissions. 7.Pursuant to that, all the parties complied and the delivery of this ruling was reserved to be on notice. It was eventually delivered on 17th June, 2026 accordingly. A. The Written Submissions by the Plaintiff/Applicant in Support of the Notice of Motion application dated 4th March 2025 8.The Plaintiff/Applicant, through the Law Firm of Messrs. D. K. Chege & Associates Advocates, filed written submissions in support of the Notice of Motion dated 4th March 2025. Mr. Chege Advocate for the Plaintiff/Applicant commenced by stating that the application seeks orders for the reconstruction of the skeleton court file in respect of Mombasa Petition No. 13 of 2012, Salim Idd Zakumera – Versus – Wilson Burugu Gitau & 2 Others, and for the transfer of the suit to the Environment and Land Court at Kwale for hearing and determination. 9.The Learned Counsel submitted that the matter was initially instituted as Petition No. 13 of 2012, and that the Respondent filed a Replying Affidavit on 28th March, 2012. Subsequently, a ruling was delivered on 10th December 2013 by Honourable Justice Edward M. Muriithi, transferring the matter to the Environment and Land Court for hearing and disposal. It was noted that the 2nd and 3rd Respondents did not appear before the court during those proceedings. 10.Further, the Counsel submitted that upon transfer of the matter, Honourable Justice A. Omollo issued various orders on 16th June, 2016, which were duly complied with by the Plaintiff/Applicant. However, the results of investigations conducted by the National Registration Bureau and the Directorate of Criminal Investigations, though received, were never availed before the court. 11.It was submitted that the matter was scheduled for mention on 12th July, 2016 to confirm compliance and progress, but court records do not clearly indicate what transpired on that date. The Applicant contended that this omission was critical, as the findings from the relevant government agencies were never formally placed on record. 12.The Learned Counsel submitted that the next available record was a ruling dated 22nd November, 2017 on an application dated 27th January, 2017 seeking to reinstate the petition after dismissal for non-attendance. The application was allowed by Honourable Justice A. Omollo; however, no hearing date was issued thereafter despite the reinstatement of the matter. 13.The Learned Counsel relied on the case of:- “Ivita – Versus – Kyumbu (1984) KLR 441”, where the court held that the test in applications for dismissal for want of prosecution was whether the delay was prolonged and inexcusable, and if so, whether justice could still be done despite such delay. 14.It was further submitted that from 22nd November, 2017 until 8th November, 2018, when the suit was dismissed for want of prosecution by Honourable Justice Nelly Matheka, there was no record of any hearing date, mention notice, or notice to show cause issued to the parties. The Counsel emphasized that none of the parties was aware of the dismissal date, as clearly indicated in the ruling. 15.The Learned Counsel associated himself with the decision in the case of”- “Nilesh Premchand Mulji Shah & Another t/a Ketan Emporium – Versus – M.D. Popat & Others (2016) eKLR”, where the court emphasized that the discretion to dismiss a suit must be exercised judiciously, taking into account whether the delay is inordinate and whether it causes prejudice to the opposing party. 16.The Counsel submitted that the mandatory provisions of Order 17 Rule 2(1) of the Civil Procedure Rules, 2010 were not complied with, as no notice to show cause was issued prior to the dismissal of the suit. The failure to issue such notice rendered the dismissal procedurally irregular and unjust. 17.Further, reliance was placed on the case of:- “Fran Investments Limited – Versus – G4S Security Services Limited (2015) eKLR”, where the court held that dismissal of a suit without hearing it on merit is a draconian measure and should only be exercised sparingly, with due regard to the principles of substantive justice under the provision of Article 159 of the Constitution. 18.The Learned Counsel submitted that the Respondent had largely relied on the dismissal ruling of 8th November, 2018 but had failed to account for earlier proceedings or demonstrate compliance with the orders issued on 16th June, 2016 by Honourable Justice A. Omollo. 19.It was further submitted that under Section 3A of the Civil Procedure Act, Cap 21, this Honourable Court has inherent powers to make such orders as may be necessary for the ends of justice and to prevent abuse of the court process. 20.The Counsel contended that the Respondent equally failed to take any steps from November, 2017 to ascertain the status of the matter and has not demonstrated any effort made to prosecute or follow up the case. 21.The Plaintiff/Applicant submitted that this is a clear case where justice was not served, and that the age or circumstances of the Respondent should not be used to defeat the Applicant’s right to a fair hearing and due process. 22.The Counsel further submitted that the Applicant had previously moved the Kadhi’s Court and obtained Grant Letters of Administration to pursue the claim on behalf of his late father’s estate, which the Respondent was alleged to have acquired fraudulently. 23.The Learned Counsel also made reference to previous findings in Environment and Land Case No. 920 of 2016, where the court found sufficient grounds to allow reconstruction of a court file, and urged the court to adopt a similar approach in the present case. 24.In conclusion, Counsel urged this Honourable Court to allow the application dated 4th March, 2025, on an order for the reconstruction of the skeleton court file, and direct that the matter be transferred to the Environment and Land Court at Kwale for hearing and determination on merit. 25.The Plaintiff/Applicant humbly prayed that the application be allowed with costs. B. The Written Submissions by the Defendant/Respondent in Opposition to the Notice of Motion application dated 4th March 2025 26.The Defendant/Respondent, through the Law Firm of Messrs. Waithera-Ngigi & Company Advocates, filed submissions opposing the Plaintiff/Applicant’s Notice of Motion application dated 4th March, 2025. M/s. Ngigi Advocate submitted that the application sought for orders for the reconstruction of the skeleton court file in respect of “Mombasa Petition No. 13 of 2012, Salim Idd Zakumera – Versus – Wilson Burugu Gitau & 2 Others”, and transfer of the suit to the Magistrates’ Court at Kwale. 27.The Counsel averred that the application was supported by the Supporting Affidavit sworn by the Plaintiff on 4th March, 2025, and was opposed through a Replying Affidavit sworn by the Defendant/Respondent on 5th June, 2025. 28.The Learned Counsel identified the following three ( 3 ) issues for determination. First, whether the application for reconstruction of the file was properly before this Court. The Learned Counsel submitted that the Plaintiff/Applicant alleges that the original court file cannot be traced. However, no evidence has been placed before this Court to demonstrate that any effort was made to trace the file through the court registry. 29.It was contended that the Plaintiff failed to produce any correspondence addressed to the Deputy Registrar or the court registry requesting assistance in tracing the file. Further, no certificate or confirmation from the Deputy Registrar had been availed to demonstrate that the file is indeed lost or misplaced. 30.The Counsel submitted that such confirmation was a fundamental requirement under established procedures for reconstruction of court files, and in its absence, the present application was premature and procedurally defective. 31.To buttress on this point, reliance was placed on the case of:- “Fina Bank Limited – Versus – Mariri Enterprises Limited [2001] KEHC 40 (KLR)”, where the court held that failure to demonstrate that a court file is missing, and failure to follow the proper procedure for reconstruction, renders such an application untenable and liable to dismissal. 32.The Learned Counsel submitted that judicial intervention in reconstruction of files should only be invoked as a last resort, and only after all administrative mechanisms have been exhausted. In the present case, no such efforts have been demonstrated. 33.Accordingly, Counsel urged the Court to find that the application for reconstruction is without merit, based on unsubstantiated claims, and ought to be dismissed. Secondly, Whether the suit ought to be transferred to the Magistrates’ Court. The Learned Counsel submitted that the original suit, being Petition No. 13 of 2012, was transferred from the High Court to the Environment and Land Court in Mombasa pursuant to a ruling delivered on 10th December 2013 by Honourable Justice E. M. Muriithi. 34.It was further submitted that the suit was subsequently dismissed for want of prosecution on 30th November, 2016, later reinstated on 22nd November, 2017 by Honourable Justice A. Omollo, and ultimately dismissed again on 8th November, 2018 by Honourable Justice Nelly Matheka for non-attendance and failure to prosecute. 35.Counsel contended that as matters stood, there was no subsisting or pending suit before this Honourable Court capable of being transferred to the Magistrates’ Court. It was submitted that a dismissed suit could not be transferred, and that the Plaintiff/Applicant ought first to seek to set aside or review the dismissal orders before seeking any further relief. 36.The Learned Counsel argued that the prayer for transfer was therefore premature, incompetent, and misconceived. 37.Further, Counsel submitted that the Plaintiff had failed to lay any legal or factual basis to justify the transfer of the matter to the Magistrates’ Court at Kwale, and no sufficient reasons have been advanced to support such prayer. Therefore, the Court was urged to decline the prayer for transfer. 38.Thirdly, was whether this Honourable Court should exercise its discretion in favour of the Applicant. The Learned Counsel submitted that the Defendant/Respondent was currently 85 years old, and that the matter had been pending for over 13 years. 39.It was contended that the suit had been dismissed twice for want of prosecution, and that the Plaintiff/Applicant has failed to take any steps to set aside or review the dismissal orders, or to provide any credible explanation for the prolonged delay. 40.The Counsel argued that allowing the present application would subject the Defendant/Respondent to undue hardship and prejudice, and would amount to reopening litigation that has long been concluded. 41.Reliance was placed on the provision of Article 159(2)(b) of the Constitution, which requires that justice shall not be delayed, and that courts must guard against abuse of process through inordinate delay. 42.The Learned Counsel submitted that the Plaintiff/Applicant had demonstrated lack of diligence and interest in prosecuting the matter, and should not be allowed to revive the dispute through indirect means. 43.In conclusion, Counsel urged this Honourable Court to find that the application was devoid of merit, procedurally defective, and an abuse of the court process. Thus, the Defendant/Respondent prayed that the Notice of Motion application dated 4th March, 2025 be dismissed with costs. V. Analysis & Determination. 44.I have carefully read and considered the pleadings herein by the Applicant, the Replying Affidavit by the Respondent, the relevant provisions of the Constitution of Kenya, 2010 and the statures. 45.In order to arrive at an informed, Just, equitable and reasonable decision, the Honorable Court had framed three (3 ) issues for its determination. These are:-a.Whether the Notice of Motion application dated 4th March, 2025 was merited?b.Whether the parties were entitled to the reliefs sought.c.Who will bear the Costs of Notice of Motion application dated 4th March, 2025? ISSUE No. a). Whether the Notice of Motion application dated 4th March, 2025 is merited? 46.Under this sub – heading, the Honourable Court will be examining the legal parameters for granting order for the construction of a file. It is clear that an order for reconstruction of a missing court file is consistent with the provisions of Articles 25 ( c ), 48 and 50 of the Constitution on the right to fair hearing and access justice. To decline a party from reconstructing a missing file amounts to denying a party the opportunity to ventilate his or her/its case which in my view is an affront to the aforementioned provision of the Constitution and more particularly, where it has not been shown that the original file went missing as a result of a mistake on the part of the party making such request. 47.Nonetheless, the application at hand was expressed to have been brought under the provisions with regard to the court overriding objective and the oxygen principle and especially the provision of Section 3A of the Civil Procedure Act, Cap. 21 which provides as follows:-“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.” 48.It is this provision of law that provides for the inherent powers of the courts upon which basis and in the absence of a specific law, that the courts can make necessary orders in the interest of justice so as to prevent abuse of the court process. However, in my view, the reconstruction of lost files is a purely internal, managerial and administrative affair to be dealt with strictly by the office of the Deputy Registrar and the official overseeing the custody of the court files. I also appreciate that in the absence of a specific law or practice directions on the issue of reconstruction of lost files, recourse has to be had on the guidelines laid in the High Court of Kenya, Registry Operation Manual. The Second Edition thereof at pages 33-34 the guidelines are set out as follows:-“If a file is missing, the Registry will take the following steps:-a)The Registry Supervisor checks the file movement register to identify the person in whose possession the file was last recorded. The Supervisor instructs him/her to trace the file.b)If the file is not traced, the Registry Supervisor circulates a memo to all staff in the Station/Registry asking them to check whether the file is in their possession. If the file is not found within 24 hours, the Supervisor will notify the Deputy Registrar.c)The Deputy Registrar then initiates a special search.d)If the file is not traced after this first search, the Registry Supervisor writes the words ‘original file missing’, in pencil, on the relevant case register.e)The Registry Supervisor then enters the details of the missing file in the register of missing files which is maintained by the Registry Supervisor.f)After a fruitless search of 14 days, the Deputy Registrar issues a certificate to confirm the loss and recommends the reconstruction of the file.g)Parties are informed of the non-availability of the file in writing by the Deputy Registrar with a recommendation for reconstruction.h)In the event that a missing file is traced, the date of recovery is recorded in the case register and its availability is communicated to the parties concerned by the Deputy Registrar within 24 hours of its tracing. A certificate confirming the recovery is issued.i)The file once traced is merged with any skeleton file that may have been opened.” 49.The High Court Registry Operations Manual, Second Edition, at pages 33 to 34, lays down a clear and sequential procedure for dealing with missing court files. The procedure requires, among other steps, that the Registry Supervisor conduct a search; that a memo be circulated to all staff; that a special search be initiated by the Deputy Registrar; that the details of the missing file be entered in the register of missing files; and that after a fruitless search of fourteen days, the Deputy Registrar issues a certificate confirming the loss and recommending reconstruction. It is only upon the issuance of that certificate that parties are formally notified of the non-availability of the file and invited to participate in the reconstruction process. These guidelines exist to ensure that reconstruction is an orderly, supervised, and judicially accountable process, and not a mechanism available to any litigant who alleges, without proof, that a file cannot be found. 50.Thus, the Honourable Court will now proceed to aply these principles to the instant case. ISSUE No. b). Whether the parties were entitled to the reliefs sought. 51.Under this sub – heading, the Court will proceed to see whether the parties have applied the above requirements for the re – construction of the Court. From the very onset, I discern that in the present case, none of these steps has been demonstrated. The Applicant has not shown that the registry was formally requested in writing to conduct a search. He has not shown that a memo was circulated. He has not shown that a special search was initiated. Most critically, he has produced no certificate from the Deputy Registrar confirming the loss of the file. As this Court held in the case of:- “Fina Bank Limited (Supra), and as affirmed in “Makau – Versus - Henry Odero Mbira”, the certificate of loss issued by the Deputy Registrar is not a mere formality — it is a jurisdictional prerequisite to the reconstruction process. Without it, the application for reconstruction is premature, procedurally defective, and cannot be entertained by the Court. 52.The position taken in “Abdul Karim Omar – Versus - Stephen Ngumbau Kithuka [2017] eKLR”, relied upon by the Applicant, does not assist him in the circumstances of the present case. In that matter, the court was prepared to exercise its discretion in favour of reconstruction upon being satisfied that the applicant had moved the court having done what was within his power to locate the file. The critical distinction is that in Abdul Karim Omar, the applicant had taken demonstrable administrative steps and the failure to locate the file was attributable to internal court processes beyond the applicant's control. Here, the Applicant has not demonstrated that he took any formal administrative step whatsoever. He did not write to the Deputy Registrar. He did not request a formal search. He did not seek a certificate of loss. He relies on an alleged verbal exchange with registry staff which an exchange that is unverified, undocumented, and incapable of constituting the evidentiary foundation for an extraordinary remedy of reconstruction. The discretion to allow reconstruction cannot be exercised on such a basis. 53.Furthermore, and of critical importance, the Applicant's case for reconstruction is fundamentally undermined by the procedural history of the matter itself. The court file the Applicant seeks to reconstruct is not a file in respect of a live and pending suit. It is the file of a matter, Mombasa Petition No. 13 of 2012 that was dismissed for want of prosecution by Hon. Justice Nelly Matheka on 8th November, 2018. That dismissal was the second such dismissal, the first having been entered on 30th November, 2016 before being set aside on 22nd November, 2017. The current dismissal order of 8th November, 2018 has never been challenged, set aside, reviewed, or appealed. It subsists in full force. To reconstruct the file of a dismissed matter, without first setting aside the dismissal, would be an exercise in futility — there would be no cause pending before any court to which the reconstructed file could be attached or within which it could serve any legitimate purpose. 54.The Respondent has further placed before this Court a matter of considerable gravity that bears directly on the integrity of the present application. The Respondent depones that subsequent to the dismissal proceedings before the Environment and Land Court, Mombasa, he filed an Originating Summons in ELC Case No. 185 of 2018 at the Environment and Land Court, Mombasa. That matter proceeded to formal proof hearing before Hon. Justice Munyao on 22nd October, 2019. The Land Registrar testified on 27th January, 2020. Written submissions were filed on 10th February, 2020. Judgment was thereafter delivered in April, 2020 in the Respondent's favour. A decree was extracted and signed on 17th June, 2020. The property in question has since changed hands and a provisional title deed has been issued. 55.The Applicant has said nothing in response to these averments. His Supporting Affidavit is entirely silent on the existence of ELC Case No. 185 of 2018, its proceedings, the judgment delivered therein, or the decree and provisional title deed that followed. This silence is not merely suspicious — it is, in this Court's assessment, deeply troubling. If the Applicant was genuinely pursuing the interests of his late father's estate with the diligence he claims, and if his grievance is as meritorious as he contends, one would expect him to have been aware of parallel proceedings concerning the same property before the same court and to have taken steps to intervene in or challenge those proceedings. The complete absence of any engagement with ELC Case No. 185 of 2018 in the Applicant's pleadings raises serious questions about the candour and completeness of the narrative placed before this Court. 56.The combined effect of the foregoing is that the application for reconstruction fails on multiple independent grounds: first, for failure to comply with the procedural prerequisites under the High Court Registry Operations Manual; second, because the suit in respect of which reconstruction is sought has been dismissed and the dismissal order remains unchallenged; and third, because the subject matter of the dispute has already been the subject of separate judicial proceedings culminating in a judgment and decree, the existence of which the Applicant has conspicuously failed to address. 57.The Court now turns to what is, upon a holistic reading of these proceedings, the most fundamental infirmity of the present application — the question of “forum shopping”. The doctrine against forum shopping is not merely a rule of procedural convenience. It is a principle rooted in the constitutional architecture of the Kenyan judicial system. At its core, forum shopping occurs when a litigant, dissatisfied with proceedings or outcomes in the court of proper jurisdiction, deliberately seeks to have the same matter or substantially the same dispute entertained by a different court or forum, without any legitimate legal basis for the migration of that dispute. It is an abuse of process that strikes at the very foundation of the orderly administration of justice and corrodes public confidence and trust in the integrity of the judicial system. 58.Forum shopping is precisely such manipulation — it deploys the forms of legal process to undermine the substance of judicial finality. Courts in Kenya have consistently affirmed that the constitutional imperatives of justice, fairness, and efficiency are subverted, rather than served, when litigants are permitted to shop for a more favourable forum after adverse proceedings in the court of proper jurisdiction. The Constitution of Kenya, 2010, under the provision of Article 159 (2) (b), commands that justice shall not be delayed. Read together with the provision of Article 159 (2) (d), which requires courts to be guided by the principle that justice shall be administered without undue regard to procedural technicalities, it is clear that the Constitution equally condemns the manipulation of procedure to defeat substantive justice. 59.To fully appreciate the nature and extent of the forum shopping engaged in by the Applicant, it is necessary to retrace the chronological history of these proceedings with precision. The matter originated as Petition No. 13 of 2012 at the High Court of Kenya at Mombasa. On 10th December, 2013, Hon. Justice Edward M. Muriithi directed its transfer to the Environment and Land Court. That transfer was not to Kwale — it was, and has at all material times remained, to the Environment and Land Court at Mombasa. That court assumed full and exclusive jurisdiction. Hon. Justice A. Omollo conducted substantive proceedings and made orders on 28th April 2016 and 16th June 2016 directing investigations by the National Registration Bureau and the Directorate of Criminal Investigations. 60.The matter was dismissed for want of prosecution on 30th November 2016, reinstated on 22nd November, 2017, and dismissed a second time on 8th November 2018 by Hon. Justice Nelly Matheka. Between reinstatement in November, 2017 and the second dismissal in November 2018 — a period of approximately one year — no hearing date was fixed, no mention notice was issued, and neither party took any step to move the matter forward. Following the second dismissal, the Applicant maintained complete silence for a period exceeding six years before filing the present application. Throughout that entire period, the Respondent, for his part, proceeded to institute ELC Case No. 185 of 2018 before the Environment and Land Court, Mombasa, prosecuted it diligently to judgment, extracted a decree, and obtained a title deed in respect of the very property that forms the subject matter of the present dispute. 61.It is against this background that the present application must be evaluated. The Applicant, having failed twice to prosecute the matter before the Environment and Land Court, Mombasa, having done nothing for over six years while the Respondent obtained a Judgment and title, now seeks through the present application to reconstruct the file of the dismissed petition and transfer it to the Magistrates' Court at Kwale — a court in a different town, of subordinate jurisdiction, with no institutional knowledge of the thirteen-year history of this dispute, and no sight of the judgment delivered in ELC Case No. 185 of 2018. The design of the application is unmistakable — it seeks a clean slate before a new forum, free from the encumbrance of the procedural history, the two dismissal orders, and the judgment that have accumulated at Mombasa. 62.A fundamental principle of Kenyan procedural law is that jurisdiction is not a commodity that a litigant may select at will. Jurisdiction attaches to a court by operation of law — by the nature of the subject matter, the value of the claim, the territorial connection of the parties and property, and the statutory mandate of the court in question. It cannot be manufactured by a litigant through a transfer or reconstruction application designed to migrate a concluded matter to a preferred venue. 63.The Environment and Land Court Act, No. 19 of 2011, establishes the Environment and Land Court as a superior court of record with the same status as the High Court. The Environment and Land Court at Mombasa has territorial jurisdiction over land disputes arising within the coastal region, which encompasses the subject matter of the present dispute. The Magistrates' Court at Kwale, even with its Environment and Land jurisdiction conferred by enabling legislation, does not acquire jurisdiction over a matter that has been properly constituted, substantively adjudicated, and finally determined — twice — before the Environment and Land Court, Mombasa. Jurisdiction is not transferred by preference. It is conferred by law. 64.Furthermore, the prayer for transfer to the Magistrates' Court at Kwale is constitutionally incompetent on its face. The hierarchy of courts established under Article 162 of the Constitution of Kenya, 2010, and the Magistrates' Courts Act does not permit the downward transfer of a superior court matter to a court of inferior jurisdiction. The Environment and Land Court at Mombasa is a superior court. The Magistrates' Court at Kwale is a subordinate court. A matter originating from and adjudicated before a superior court cannot be sent downward to a subordinate court by way of transfer. The prayer is not merely irregular — it is constitutionally untenable. 65.If the Applicant genuinely sought to reinstate and prosecute this matter, the only proper venue for such an application is the Environment and Land Court, Mombasa. That is the court that assumed jurisdiction by transfer from the High Court. That is the court that made the dismissal order of 8th November, 2018. It is a well-established principle that an application to set aside or reinstate must be made to the court that made the order sought to be disturbed. As affirmed in the case of:- “Shah – Versus - Mbogo [1967] EA 116”, a court exercising discretionary jurisdiction to set aside its own orders must be the same court that made those orders. No other court — and certainly not a subordinate Magistrates' Court at Kwale — can disturb, revisit, or receive by transfer a matter dismissed by a superior court. 66.When the Applicant's prayer for transfer is examined against the full chronological and procedural backdrop set out above, its character as a vehicle for forum shopping becomes unmistakable. Three features of the application are particularly revealing. 67.First, the application makes no mention of, and seeks no relief in respect of, the dismissal order of 8th November 2018. The Applicant does not allege the order was wrongly made. He does not pray for it to be set aside. He offers no explanation for why the matter was not prosecuted after reinstatement. He simply bypasses the order entirely, proceeding as though a reconstruction and transfer application would dissolve the dismissal and present a live matter before the Magistrates' Court at Kwale. This studied silence is not inadvertence — it is the architecture of forum shopping. A litigant who cannot undo an adverse order through proper channels seeks instead to render it irrelevant by transplanting the dispute to a forum that will not see it. 68.Second, the complete omission of any reference to ELC Case No. 185 of 2018, the Judgment delivered in April, 2020, the decree extracted on 17th June, 2020, and the title deed that has since been issued, is a further and more serious manifestation of the same conduct. The Applicant asks this Court to make orders in respect of a parcel of land in relation to which a judgment and decree already exist, without disclosing the existence of those orders to the Court. A party approaching a court for equitable discretionary relief is bound by the maxim that he who comes to equity must come with clean hands. The Applicant has not come with clean hands. The suppression of material facts concerning the ELC Case No. 185 of 2018 proceedings, whether deliberate or reckless, disqualifies the Applicant from the exercise of the Court's discretion in his favour. 69.Third, the selection of the Magistrates' Court at Kwale as the proposed receiving forum is a further indicator of bad faith. A Magistrates' Court at Kwale, receiving only a reconstructed skeleton file, would commence the matter without knowledge of the two dismissal orders, without knowledge of the judgment in ELC Case No. 185 of 2018, and without knowledge of the decree and title that have already been issued. It would, in effect, be a fresh start in virgin territory — which is precisely what the doctrine against forum shopping is designed to prevent. 70.The period of over six years between the second dismissal on 8th November, 2018 and the filing of the present application in March, 2025 is not merely a procedural irregularity — it is powerful evidence of the bad faith underlying this application. During those six years, the Respondent was entitled to regard the matter as finally and irreversibly concluded. He proceeded accordingly — filing fresh proceedings, prosecuting them to judgment, extracting a decree, and obtaining a title deed. He made no admissions and gave no undertakings that could be construed as keeping the dismissed petition alive. He is now 85 years of age and has been a party to litigation in one form or another since the year 2012. 71.The Applicant, for his part, offers no explanation whatsoever for the six-year silence. He does not allege illness. He does not allege impecuniosity. He does not allege ignorance of the dismissal. He does not allege any supervening event of any kind that prevented him from taking steps to reinstate the matter. The silence is total, unexplained, and — when set against the background of the Respondent's active prosecution of ELC Case No. 185 of 2018 during the same period — deeply inconsistent with the Applicant's claim that he has at all times been diligently pursuing justice on behalf of his late father's estate. 72.It is trite law that delay defeats equity. In the case of:- “Thuita Mwangi – Versus - Kenya Airways Ltd [2003] KLR 486”, the Court of Appeal held that a party seeking to revive stale proceedings must not only explain the delay but must demonstrate that no prejudice will result to the opposite party. Neither condition is met here. The delay has not been explained. The prejudice to the Respondent is severe and manifest — he is an 85-year-old man who has already obtained a judgment, a decree, and a title deed on the basis of concluded proceedings, and who is now being invited to defend himself in a new forum against a claim arising from a dispute that was twice dismissed and has been dormant for over six years. 73.The principle that litigation must come to an end — interest reipublicae ut sit finis litium — is not a procedural technicality as envisaged under the provision of Article 159 ( 2 ) ( d ) of the Constitution of Kenya, 2010. It is a fundamental constitutional and common law imperative. Where a court finds that an application before it constitutes forum shopping, it has not merely a discretion but a positive duty to dismiss the application, in order to protect the integrity of the judicial process, safeguard the Respondent from abuse, and uphold the principle of finality of litigation. 74.In the case of:- “Savings & Loan Kenya Limited – Versus - Hana Sheikh Ahmed [2014] eKLR”, the High Court specifically condemned the practice of filing applications before courts other than those of proper jurisdiction as a strategy to evade adverse orders, characterising such conduct as an abuse that must be firmly and promptly checked. In the case of:- “Raila Amolo Odinga & Another – Versus - Independent Electoral and Boundaries Commission & Others [2017] eKLR”, the Supreme Court of Kenya affirmed that courts must be vigilant against the instrumentalisation of judicial process for purposes of harassment, and that procedural discipline is indispensable to a functioning justice system. 75.The proper forum for any application arising from the history of the present dispute is and remains the Environment and Land Court, Mombasa. That court made the transfer order. That court made the substantive directions. It has already been noted that court dismissed the matter twice. That court also entertained and determined ELC Case No. 185 of 2018. Until the Applicant properly and honestly moves the Environment and Land Court, Mombasa, to set aside the dismissal order of 8th November 2018 — accounting fully for the six-year delay, disclosing the existence and outcome of ELC Case No. 185 of 2018, and demonstrating a legitimate basis for reinstatement — no other court can or should extend to him the reliefs he seeks. By all means, the application must fail. ISSUE No. c). Who will bear the Costs of Notice of Motion application dated 17th March, 2023. 76.It is now well established that the issue of Costs are at the discretion of the Court. The Black Law Dictionary defines cost to means:-“the expenses of litigation, prosecution or other legal transaction especially those allowed in favour of one party against the other” 77.In other words, Costs mean the award a party is awarded at the conclusion of a legal action or proceedings in any litigation. The provision of Section 27 of the Civil Procedure Act, Cap. 21 grants the High Court discretionary power in the award of costs which ordinarily follow the event unless the Court for good reasons orders otherwise. Section 27 (1) of the Civil Procedure Act provides as follows:-“(1)Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.” 78.A careful reading of the provision of Section 27 indicates that it is considered trite law that costs follow the cause/event, as described by Sir Dinshah Fardunji Mulla in his book The Code of Civil Procedure, 18th Edition, 2011 reprint 2012 at 540, is that costs must follow the event unless the court, for some good reasons, orders otherwise. 79.Additionally, the provision provides for ‘costs of and incidental to all suit or application’ which expression includes not only costs of suit but also costs of application in suit as described by Mulla (supra) at 536. Furthermore, Rtd. Justice Richard Kuloba in his book Judicial Hints on Civil Procedure, 2nd Edition, 2005 at 95 notes that the words ‘the event’ means the result of all the proceedings incidental to the litigation. Accordingly, the event means the result of the entire litigation. The order as to costs as provided for under section 27 remains at the discretion of the court. 80.In the present Notice of Motion application dated 4th March, 2025 by the Plaintiff herein has been dismissed and hence the Respondent will be entitled to costs of the application and the suit. VI. Conclusion & Disposition 81.In long analysis, the Honorable Court has carefully considered and weighed the conflicting parties’ interest as regards to balance of convenience. Ultimately in view of the foregoing detailed and expansive analysis to the application, this court arrives at the following decision and makes the orders stated herein below:-a.That the Notice of Motion application dated 4th March 2025 and the suit in its entirety is hereby dismissed.b.That costs are awarded to the Defendant/Respondent to be borne by the Plaintiff herein.It Is So Ordered Accordingly. RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT KWALE THIS 17TH DAY OF JUNE .2026.………………………..…………….HON. MR. JUSTICE L. L. NAIKUNIENVIRONMENT AND LAND COURT AT KWALERuling delivered in the presence of:Mr. Daniel Disii, the Court Assistant.No appearance for the Plaintiff/Applicant.M/s. Tembea Advocate holding brief for M/s. Ngigi Advocate for the Defendant/Respondent.