https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4418

Salimba & another v Sibelenje (Suing on her Behalf and on Behalf of the Estate of Silas Sibelenje Sibelo) (Environment and Land Appeal E013 of 2025) [2026] KEELC 4418 (KLR) (9 July 2026) (Judgment) Neutral citation: [2026] KEELC 4418 (KLR) Republic of Kenya In the Environment and Land Court at Vihiga Environment and Land Appeal E013 of 2025 E Asati, J July 9, 2026 Between Abraham Akinga Salimba 1st Appellant Ben Musonye Akala 2nd Appellant and Jane Sibelenje (Suing on her Behalf and on Behalf of the Estate of Silas Sibelenje Sibelo) Respondent (Being an appeal from the ruling of the Honourable SPM Hon. R. Ndombi delivered on 12th June 2025 in VIHIGA CMC EL CASE NO E026 OF 2023) Judgment 1.The appeal herein challenges the ruling in VIHIGA PMELC NO. E026 OF 2023 (the suit) delivered on 12th June, 2025. 2.The record shows that the Appellant is the Defendant in the suit which was initiated by the Respondent vide the plaint dated 11th May, 2023, on behalf of the estate of one Silas Sibelenje Sibele, deceased, claiming a portion of the suit land parcel No. E/Bunyore/Ebusamia/835. The Respondent sought a permanent injunction, a declaration that the Respondent owns a portion of the suit land by way of adverse possession, and issuance of a title deed to the Respondent and costs of the suit. 3.The record shows that on 18th July, 2024, the suit was dismissed for want of prosecution as both the Respondent and his advocate were absent when the matter came up for mention for directions.th February, 2025, brought under certificate of urgency, seeking orders, inter alia, that the order issued on 18th July, 2024, dismissing the suit for want of prosecution be set aside and directions be given on hearing and disposal of the suit on merit. 4.The record shows further that thereafter, the Respondent filed a Notice of Motion application dated 27 5.The record shows that the application was opposed vide the Replying Affidavit sworn by Alex Biketi on 10th March, 2025. 6.The application was heard by the trial Magistrate, who vide the ruling made on 12th June, 2025, found that the application had merit and allowed it with the result that the suit was reinstated. The ruling is the subject of the present appeal. Submissions 7.The appeal was heard by way of written submissions. Written submissions dated 20th April, 2026, were filed by Shitsama & Company on behalf of the appellant, while written submissions dated 30th April, 2026, were filed on behalf of the Respondent. Analysis and determination 8.This being a first appeal, this court is obligated to re-analyse the evidence/material placed before the trial court and draw its own conclusions. In Selle & Another vs Associated Motor Boat Company Limited and Others [1968] EA 123, it was held that a court handling a first appeal is not necessarily bound to accept the findings of fact by the court below. It stated“An appeal to this court is by way of retrial, and the principles upon which this court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusion, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect.”Guided accordingly, I proceed to determine the issues herein. 9.The first issue for determination is whether or not the learned magistrate erred in law and fact in allowing an application filed by a stranger to the suit. 10.Counsel for the Appellant relied on the provisions of Order 9(9) of the Civil Procedure Rules and the case of Alice Mumbi Nganga -vs- Danson Chege Nganga & Another (2006) KEHC 1523 KLR and submitted that in the present case, there was no evidence that the firm of Obara Obwatinya & Company Advocates had been served with the application. That the trial court erred in allowing the application filed by the firm of Florah Malanda, who was not properly on record. 11.On behalf of the Respondent, it was submitted that prayer 2 of the application had sought leave of the court for the firm of Florah Malanda Advocates to come on record. That the technicalities of procedure should not be used to overcome substantive justice. 12.That the application had been brought under the provisions of Order 9 Rule 9 Civil Procedure Rules. 13.I have considered the above submissions against the record of appeal. Indeed, the record shows that the suit had been filed on behalf of the Respondent by the firm of Lubra Obwatinya & Company Advocates. It also shows that the application dated 27th February, 2025, was filed by Florah Malanda Advocates. One of the prayers sought in the said application was that leave be granted to Florah Malanda Advocates to come on record on behalf of the Respondent. The ruling allowed the application in its entirety. 14.The second ground of appeal is related to the 1st ground of appeal, as it challenges the representation of the Respondent by the firm of Florah Malanda Advocate. 15.Order 9 Rule 9 of the Civil Procedure Rules, pursuant to which the objection is raised, provides for the procedure for change of Advocates after judgment has been passed. 16.In the present case, an application was filed, and the order allowing the entire application was made at the determination of the application. 17.Taking into account that the suit had just been dismissed for non-attendance and that the application was ultimately allowed, I find no prejudice having been occasioned to the Respondent by failure of the court to issue the order allowing the Respondent Advocates to come on record at the very inception of the application. 18.The 3rd ground of appeal faults the court for allowing the Respondent's application when the evidence on record fell short of sufficient reason as to why the Respondent failed to attend court. 19.It was submitted on behalf of the Appellant that the legal basis for dismissal of suits for want of prosecution is the need for expediency in the prosecution of civil suits as found in Article 159(2)(b) of the Constitution and section 3A of the Civil Procedure Act. That the Applicant did not provide reasons for her failure to actively pursue her case and why she did not attend court on various dates between 18th August, 2023 and 18th July, 2024. 20.Counsel relied, among other authorities, on the case of Ndere & 1709 others -vs- County Government of Kirinyaga & 4 Others (2025)eKLR, to support his submissions. 21.On behalf of the Respondent, it was submitted that the Respondent gave a valid reason, namely, that the failure was by her former Advocate. That by the trial court allowing the application, the court exercised its discretion in accordance with the overriding objective of the court so that the suit could be heard on the merits. 22.I have perused the application dated 27th February, 2025, and the Supporting Affidavit sworn by the Respondent on 27th February, 2025.th July, 2024, the advocate representing her did not attend court, leading to dismissal of the matter for want of prosecution and closing of the file. She further explained that no notice had been issued to her and that she was condemned unheard. 23.The Respondent explained in the application that when the matter came up for mention on 18 24.In the ruling, the trial court took into account the fact that the plaint had triable issues that needed to be given the opportunity of being heard, that disallowing the application would cause injustice, prejudice, and hardship. 25.The trial court relied on the provisions of article 159(2)(d) of the Constitution and Order 17 Rule 2 of the Civil Procedure Rules and found that the case before it was a good case where the court should exercise its discretion in favour of the Applicant. 26.Going to the proceedings of 18th July, 2024, when the suit was dismissed for want of prosecution, the record shows that the matter was listed for mention for directions. That there was no representation for the Plaintiff (Respondent herein). The record shows that Counsel for the Defendant (Appellant herein) prayed that the suit be dismissed with costs. The court proceeded to hold;“Having considered that the advocates were duly notified of today’s date and the Plaintiff nor his advocate has attended court. In the circumstances, I proceed to dismiss the suit for want of prosecution with costs to the Defendant. File closed.” 27.The record shows that the date of 18th July, 2024 was given by the court on 24th June, 2024 in the absence of both parties. The Defendant, in applying for dismissal of the suit, did not exhibit any evidence of service of the Mention Notice upon the Plaintiff (Respondent herein). 28.Dismissal of suits for want of prosecution, as correctly held by the trial court in the ruling, is provided for in Order 17 of the Civil Procedure Rules. There is no evidence that the procedure in Order 17 was followed in dismissing the suit. In any event, the case was only coming up for mention. The trial court rightly corrected the error by reviewing and setting aside the dismissal order. 29.I find that the trial court did not err in allowing the application. Counsel for the Defendant ought to have proceeded to take directions on 18th July 2024, even in the absence of the Plaintiff, instead of applying for dismissal of the entire suit. There is no provision for dismissal of a suit for want of prosecution on a date when the same is coming up for mention. Even Order 12 of the Civil Procedure Rules, which provides for dismissal of suits for non-attendance, relates to non-attendance on the dates fixed for hearing and not dates when matters are fixed for mention.The appeal lacks merit and is hereby dismissed. 30.As the suit is yet to be heard and determined on merit, let each fair party bear its own costs of the appeal.Orders accordingly. DATED AND SIGNED AT KISUMU ON THIS 9TH DAY OF JULY, 2026, AND DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM.E. ASATI,JUDGE.In the presence of:Ajevi - Court Assistant.Mamadi h/b for Ogalo for the appellants.Malanda for the Respondents.