https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4227

Tortoise Investments Ltd & 7 others v Heather Properties Ltd & 3 others (Environment and Land Case 1167 of 2016 & 938 of 2015 & 606 of 2017 (Consolidated)) [2026] KEELC 4227 (KLR) (9 July 2026) (Ruling) Neutral citation: [2026] KEELC 4227 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Case 1167 of 2016 & 938 of 2015 & 606 of 2017 (Consolidated) OA Angote, J July 9, 2026 Between Tortoise Investments Ltd 1st Plaintiff Nina Shangavi & Jayesh Shangavi 2nd Plaintiff Top Image Ltd 3rd Plaintiff Fortis Tower Management Limited 4th Plaintiff Kenya Commerce Exchange Service Bureau Ltd 5th Plaintiff Don Woods Company Ltd 6th Plaintiff Rajan Prataprai Jani & Yadav Rajan Jani 7th Plaintiff Uniserve Ltd 8th Plaintiff and Heather Properties Limited 1st Defendant Big Five Breweries Limited 2nd Defendant Ronal A. Samani 3rd Defendant Rupen A. Samani 4th Defendant Ruling 1.Before this court for determination is the 5th -8th Plaintiffs/Applicants notice of motion dated 28th October, 2025, brought pursuant to the provisions of Article 50 of the Constitution and Sections 1A, 3A of the Civil Procedure Act seeking the following reliefs:i.The judgement of this Honourable Court delivered herein on herein on 8th May 2025 NRB ELC NO. 1167 OF 2016 and all consequential orders/proceedings be set aside.ii.The proceedings and/or any orders of the court on 3/12/2025, 4/12/2025 in the consolidated suit be vacated and/or set aside.iii.The consolidated suit proceeds for hearing de novo.iv.Any other be issued as the court may deem just and fair.v.The costs of this application be provided for. 2.The motion is based on the grounds set out on its face and is supported by the affidavit of Yadav Rajan Jani, the 8th Plaintiff, sworn on behalf of the 5th to 8th Plaintiffs/Applicants. He deponed that he is aware that ELC case nos. 1167 of 2016, 938 of 2015 and 606 of 2017 were consolidated, with ELC No. 1167 of 2016 designated as the lead file, and that all the suits concern related issues. 3.According to Mr. Jani, he was at all material times the designated contact person for the Applicants and was also expected to testify as a witness in the matter. He averred that their then advocates made several unsuccessful attempts to reach him while he was outside the country and that consequently, he remained unaware that the matter had been fixed for hearing on 2nd December, 2024 and, in any event, was at the time attending to urgent personal health matters. 4.He further explained that, owing to their inability to contact him and given that he was the sole point of contact for the Applicants, their advocates filed an application seeking leave to cease acting. According to the deponent, the application could not be served upon him because he remained unreachable; that counsel apprised the court of the prevailing circumstances and that the court subsequently allowed the advocates to cease acting. 5.According to Mr. Jani, he was never served with a hearing notice for the hearing scheduled on 4th December 2024. Consequently, the Applicants were unaware of the same; that he only recently became aware of the matter after learning that the Respondents had filed a bill of costs and that upon making inquiries, he discovered what had transpired on 2nd, 3rd and 4th December 2024, including the delivery of the subsequent judgment. 6.He deponed that the Applicants have since re-instructed the firm of Mucheru Law LLP Advocates to come on record on their behalf and to seek the setting aside of the judgment in ELC No. 1167 of 2016, as well as an order that the consolidated suit be heard afresh. 7.As advised by counsel, he urged, the failure to serve a hearing notice rendered the proceedings a nullity and that the resultant judgment ought to be set aside ex debito justitiae. He asked that the court directs the matter to proceed de novo, expressing his readiness, willingness and ability to testify at the hearing. 8.In opposition to the motion, the 2nd, 3rd and 4th Defendants/ Respondents filed a replying affidavit sworn on 25th November, 2025 by Ronal A. Samani, the 3rd Defendant and a co- director of the 2nd Defendant, Heather Properties Limited. 9.Mr. Samani deponed that the application is founded on false assertions, a mischaracterization of the facts, and a misapprehension of the applicable law, all aimed at securing an unwarranted advantage. In his view, the application discloses no sufficient basis for the grant of the orders sought. 10.He explained that the hearing dates of 3rd and 4th December, 2024 were taken by consent of all parties on 22nd July 2024, thereby affording the Applicants ample notice and sufficient time to make the necessary arrangements either to attend court or to provide instructions to their advocates. 11.It was deposed that on 2nd December 2024, being one day before the scheduled hearing, the advocates for the Applicants filed an application seeking leave to cease acting on the ground that they were unable to reach or obtain instructions from their clients and that on the same day, counsel for the 1st to 4th Plaintiffs filed a similar application. 12.He explained that on 3rd December, 2024, the trial judge directed that the applications be served upon the Plaintiffs as the same were to be heard at 2:30 p.m; that the Advocates were formally released from acting with a rider that the hearing would proceed on the following day, 4th December 2024 as had been agreed and that on 4th December, 2024, none of the Plaintiffs or their representatives attended the hearing. Consequently, they applied for dismissal of ELC Case No. 606 of 2017 and ELC Case No. 938 of 2015 and the court allowed the same in accordance with Order 12 Rule 3 of the Civil Procedure Rules and that the court also dismissed the counterclaim in ELC 1167 of 2016. 13.According to Mr Samani, vide its ruling dated 3rd December, 2024, the court expressly observed that the hearing dates had been fixed with the consent of all parties on 22nd July 2024, and that the Applicants and other Plaintiffs had had over five (5) months to take necessary steps. The court further noted that being corporate entities with fixed offices, they could not validly claim to be untraceable or unable to give instructions. 14.In any event, he stated, the allegations by the Applicants that their sole contact person was out of the country and could not issue instructions to their counsel is entirely unsubstantiated; that there is no correspondence, travel documents, flight itinerary and/or any other evidence whatsoever to support these claims and that the court cannot rely on mere assertions unsupported by proof. 15.He urged that it is established in law that a Plaintiff is required to diligently follow up on the progress of their case and that the Applicants purported inability to provide instructions does not excuse their failure to monitor the proceedings, particularly in light of the fact that the hearing dates were scheduled well in advance and had been communicated to the parties in July. 16.In furtherance of their lack of diligence and neglect in pursuing their claims, he explained, the Applicants have filed this application nearly ten (10) months after the dismissal of their matters on 4th December 2024. Such inordinate delay highlights their failure to exercise due care in monitoring the progress of their suit and taking timely action and that it further underscores that the dismissal of their claims was neither irregular nor unjust. 17.It is settled law, he stated, that where a Defendant satisfies the court that there has been a prolonged delay in prosecuting a matter and that the Plaintiff does not provide a sufficient or credible reason for such delay, the court will presume that the delay is not only prolonged, but also inexcusable, and that having failed to provide any credible explanation or evidence that their sole contact person was unreachable or that they were unaware of the hearing, the Applicants’ actions and delay are inexcusable. 18.It was asserted that the application will cause prejudice to the Respondents who have relied on the finality of the court's orders in managing their affairs; that they have in this regard filed three bills of costs in respect to the three matters and that allowing the Applicants' application will set a dangerous precedent that parties may ignore court proceedings and later seek to reopen cases based solely on unproven assertions of lack of instructions or attendance, undermining the principles of diligence, finality and accountability in litigation. Submissions 19.The Applicants filed their written submissions on 23rd January 2026. Counsel submitted that the dismissal of the suit and the judgment that followed were procedurally flawed and violated the Applicants’ constitutional right to a fair hearing guaranteed under Article 50(1) of the Constitution. 20.On the issue of the right to a fair hearing, counsel submitted that although the hearing dates of 3rd and 4th December 2024 had been taken by consent, the Applicants were unaware of those dates because their advocates had not communicated them. Counsel explained that the Applicants’ advocates subsequently filed an application on 2nd December 2024 seeking leave to cease acting on the ground that they were unable to reach their clients despite several attempts. 21.It was contended that once the advocates ceased acting, they became functus officio and could no longer serve as a conduit of communication between the Court and the Applicants. 22.Counsel therefore argued that the court ought to have ensured that the Applicants are personally notified of any further proceedings likely to result in adverse orders against them, and that a hearing date previously taken by consent could not, in those circumstances, substitute for proof that the Applicants had actual notice of the proceedings. Cited in support was Shah v Mbogo (1967) EA 116, where the court held that the discretion to set aside orders should be exercised to avoid injustice resulting from inadvertence or excusable error. 23.Counsel further cited Onyango Oloo vs Attorney General [1986–1989] EA 456 and James Kanyiita Nderitu & another v Marios Philotas Ghikas & another [2016] eKLR, where the courts emphasized that the right to be heard is fundamental to the administration of justice. Reference was also made to Belinda Murai & Others vs Amos Wainaina (1978) LLR 2782, in which the court held that a litigant should not be locked out of the seat of justice merely because of a mistake by counsel. 24.It was urged that as explained by the Court of Appeal in Ali Bin Khamis vs Salim Bin Khamis Kirobe & Others [1956] 1 EA 195, where an order is made without service upon a person affected by it, the order may be set aside ex debito justitiae, since the court retains inherent jurisdiction to correct such procedural nullities. 25.On the question of delay, counsel submitted that the Applicants only became aware of the dismissal and judgment upon the commencement of taxation proceedings. It was contended that where a decision is void for want of a hearing, delay cannot validate the defect. Counsel relied on Richard Ncharpi Leiyagu vs IEBC & 2 Others [2013] eKLR and Pithon Waweru Maina vs Thuku Mugiria [1983] eKLR, where the courts emphasized that the discretion to set aside exists primarily to prevent injustice. 26.Regarding prejudice, counsel submitted that the Respondents had not demonstrated any real or substantive prejudice that would arise if the suit were reinstated. It was argued that the filing of a bill of costs does not constitute legal prejudice and that any inconvenience occasioned could be adequately compensated through costs. In support counsel referenced Patel vs East Africa Cargo Handling Services Ltd [1974] EA 75. 27.The Respondents filed their written submissions on 5th February 2026. Counsel submitted that the present application invokes the court’s discretionary jurisdiction and that a party seeking such relief must act promptly and demonstrate diligence. It was contended that although the Applicants’ suits were dismissed on 4th December 2024, they took no steps to approach the court until 28th October 2025, nearly ten months later. 28.Counsel argued that no explanation had been offered for that prolonged inactivity and that there was no evidence that the Applicants made any effort to follow up their cases, communicate with their former advocates, or ascertain the status of the suits. 29.Counsel relied on Alfred Romani t/a Romani Architects & 3 Others vs Association of Members of the Episcopal Conference in Eastern Africa (AMECEA), Civil Application No. NAI 375 of 2002, where the Court of Appeal emphasized that even where delay is not inordinate, it must still be explained before discretion can be exercised in an applicant’s favour. It was submitted that if a delay of thirty days required explanation, then an unexplained delay of nearly ten months in the present case was plainly inordinate and fatal to the application. Also referenced was Chunga vs Amolo & 3 Others [2024] KECA 869 (KLR). 30.On whether sufficient cause had been shown, counsel submitted that under Order 12 Rule 3(1) of the Civil Procedure Rules, a suit dismissed for non-attendance may only be reinstated upon proof of good cause. Reliance was placed on Samson Karino Ole Nampaso vs Kaana Ka Arume Co. Ltd [2016] eKLR, where the Court of Appeal restated that the discretion to set aside must be exercised judicially and only to avoid injustice arising from accident, inadvertence, or excusable mistake, and not to aid a party who has deliberately obstructed or delayed the course of justice. 31.Counsel also relied on Magunandu Company Ltd vs Joyce Wairimu Ngugi & Another [2020] eKLR and Salkas Contractors Ltd vs Kenya Petroleum Refineries Ltd [2004] eKLR for the proposition that reinstatement is a matter of discretion, to be exercised only where delay is satisfactorily explained and where justice can still be done notwithstanding such delay. It was submitted that the Applicants had not met that threshold, as they had failed to provide any satisfactory explanation for their non-attendance or subsequent inactivity. 32.The Respondents submitted that the Applicants had prior notice of the hearing date, which had been fixed by consent on 22nd July 2024, and therefore had sufficient time to prepare for the hearing or engage alternative counsel. They argued that the applications by the Applicants and other Plaintiffs’ advocates to cease acting, filed on the eve of the hearing, was intended to delay the proceedings. 33.In any event, it was submitted, the Applicants were not prevented from attending court personally or appointing new advocates after the court confirmed that the hearing would proceed, and that the Applicants, as corporate entities, bore a heightened responsibility to actively monitor and prosecute their case. 34.Counsel maintained that it was implausible that both sets of advocates were unable to reach their clients for over five months and argued that the Applicants conduct before and after the dismissal of the suit was indicative of indolence and neglect rather than any genuine communication breakdown. In support of that position, counsel cited Habo Agencies Limited vs Wilfred Odhiambo Musingo [2015] eKLR and Savings and Loans Ltd vs Susan Wanjiru Muritu, Nairobi HCCC No. 397 of 2002, where the courts emphasized that a case belongs to the litigant and that a party has a duty to keep track of it rather than merely blaming counsel. 35.Counsel also rejected the Applicants reliance on Article 50(1) of the Constitution, submitting that the right to a fair hearing guarantees a reasonable opportunity to be heard, but does not shield a party from the consequences of indolence or failure to utilize an opportunity lawfully afforded by the Court. 36.Reliance was placed on Gathoni vs Independent Electoral and Boundaries Commission & 4 Others [2023] KEHC 20214 (KLR) and Christopher Odhiambo Karani v David Ouma Ochieng & 2 Others [2018] eKLR, for the proposition that where a party has been afforded a reasonable opportunity to be heard but fails to make use of it, the real question becomes why that opportunity was not utilized. 37.Counsel submitted that setting aside the dismissal and reopening the suits would substantially undermine the principles of finality, diligence, and expeditious disposal of cases. Following the dismissal and judgment, it was submitted, the Respondents organized their legal and financial affairs on the basis that the litigation had come to an end and that they had already filed bills of costs and taken consequential steps in reliance on the dismissal. 38.Accordingly, it was submitted, reopening the consolidated suits would unsettle accrued rights, disrupt settled expectations, and subject the Respondents to further litigation costs. In support they cited the cases of Ivita vs Kyumbu [1984] KLR 441 and Nilesh Premchand Mulji Shah & Another t/a Ketan Emporium vs M.D. Popat & Others [2016] eKLR. Analysis and Determination 39.Having considered the pleadings and submissions, the sole issue that arises for determination is whether the judgment of 8th May 2025 in NRB ELC N0. 1167 of 2016 and all consequential orders/proceedings should be set aside. 40.Vide the present motion, the Applicants ask this court to set aside the judgment delivered on 8th May, 2025 in NRB ELC No. 1167 of 2016, together with all consequential orders and proceedings, and to direct that the consolidated suit be heard de novo. 41.They assert that although the hearing dates had earlier been taken by consent, they were not personally aware of the same, their advocates having been unable to reach them and having subsequently ceased acting on the eve of the hearing. 42.According to the Applicants, once counsel was allowed to cease acting, the court ought to have ensured that they were personally notified before proceedings that would culminate in adverse orders were undertaken. They therefore contend that the proceedings of 3rd and 4th December, 2024 and the resultant judgment violated their right to be heard and ought to be set aside ex debito justitiae. 43.In response, the Respondents contend that the application is unmerited, misconceived and an attempt to reopen concluded litigation on the basis of unsupported allegations. They maintain that the hearing dates of 3rd and 4th December, 2024 were fixed by consent on 22nd July, 2024, thereby giving all parties more than five months’ notice. 44.They further contend that the Applicants have not placed before the court any evidence to demonstrate that they were out of the country, indisposed, unreachable, or unaware of the hearing. In the Respondents’ view, the Applicants were under a duty to follow up on their case, and their failure to do so, coupled with the delay of nearly ten months before filing the present motion, disentitles them to the discretionary relief sought. 45.Turning to the facts of the present matter, the record shows that the consolidated suits were scheduled for hearing on 3rd and 4th December 2024. When the matters came up, on the 3rd December, 2024, counsel for the 1st to 3rd Plaintiffs, Mr. Bamara, informed the court that he was unable to prosecute the Plaint dated 26th September, 2017 because he had lost contact with his clients and was therefore not ready to proceed. He further informed the court that he had filed an application seeking leave to cease acting. 46.Similarly, Mr. Otieno, learned counsel for the 4th to 8th Plaintiffs, indicated that he was to prosecute the Plaint dated 29th September, 2015 but had been unable to obtain instructions from his clients and was consequently not ready to proceed with the hearing. He likewise informed the court that an application to cease acting had been filed. 47.In response, counsel for the Respondents opposed the applications, pointing out that the hearing dates had been taken by consent long before and that, on 28th November 2024, all parties had been reminded of the scheduled two-day hearing. Counsel contended that the Plaintiffs’ advocates had waited until the eleventh hour to file their respective applications, notwithstanding their prior knowledge of the hearing dates. 48.The court considered the oral applications and noted thus:“The matter was fixed for hearing on the 22nd July, 2o24 in the presence of and with concurrence of all the parties. The Plaintiffs have had more than 5 months to contact their clients and/or undertake any application to the court in the event of any unavailability or difficulty in proceeding with today’s hearing. It is only on the 2nd December, 2024 after 4:30 pm that the Advocates for the Plaintiffs had filed applications to cease acting for their clients. Looking at the pleadings, I take note that the 1st -7th Plaintiffs are companies, legal entities duly registered with fixed offices and addressees including company secretaries in compliance with the companies act. It is therefore strange that the advocates cannot now trace their clients. To this end the application for adjournment is denied.” 49.The court allowed the counsel’s motions to cease acting, expressly stating that the matter would nonetheless proceed for hearing on the next day as scheduled. On 4th December, 2024, there was no appearance by the Applicants and other Plaintiffs. The court allowed the matter to proceed noting:“The court is indeed satisfied that the Plaintiffs were properly served and were informed about today’s date.” 50.Consequently, the Respondents urged the court to dismiss the Plaint dated 26th September 2017 in ELC No. 606 of 2017 and the Plaint dated 29th September, 2017 in ELC No. 938 of 2015 with costs. The same, together with the counterclaim dated 30th January, 2017 were dismissed and the trial proceeded with the remaining suit, ELC 1167 of 2016. Judgment was thereafter entered on 8th May, 2025 which is now sought to be set aside. 51.From the record, it is evident that the decisive factor leading to the dismissal of the two suits was the Applicants’ inability to prosecute their respective claims owing to their absence and their lack of readiness to proceed with the hearing. In those circumstances, the dismissal was anchored on the provisions of Order 12 of the Civil Procedure Rules. This Order sets out the procedure to be followed where parties fail to attend court and prescribes the orders that a court may make in such circumstances. 52.Of particular relevance to the present application is Order 12 Rule 3, which provides as follows:“(1)If on the day fixed for hearing, after the suit has been called on for hearing outside the court, only the defendant attends and he admits no part of the claim, the suit shall be dismissed except for good cause to be recorded by the court.” 53.And Order 12, Rule 7 which states:“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.” 54.Order 12, Rule 7 provides a remedy to parties whose matters have been dismissed thereunder providing that the court may, on application set aside or vary the judgment or order upon such terms as may be just. The court’s jurisdiction in this regard is discretionary. The exercise of this discretion is not intended to aid a person who deliberately seeks to obstruct justice but to avoid hardship resulting from an accident, or excusable mistake or error. 55.This position was expressed in the case of Shah vs Mbogo & Another (1967) EA 116, where the Court of Appeal of East Africa held that:“The discretion to set aside an ex-parte judgment is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error but it is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the cause of justice.” 56.More recently, the Court of Appeal in Patriotic Guards Limited vs. James Kipchirchir Sambu [2018] eKLR stated that:“...It is settled law that whenever a court is called upon to exercise its discretion, it must do so judiciously and not on caprice, whim, likes or dislikes. Judicious because the discretion to be exercised is judicial power derived from the law and as opposed to a judge’s private affection or will. Being so, it must be exercised upon certain legal principles and according to the circumstances of each case and the paramount need by court to do real and substantial justice to the parties in a suit.” 57.The court in Wachira Karani vs Bildad Wachira [2016] eKLR appreciated that the threshold to be met by an Applicant seeking to have the court set aside its orders as aforesaid is the demonstration of sufficient cause. As to what constitutes sufficient cause, the Court of Appeal in the case of BML vs WM [2020] eKLR, explained:“What amounts to sufficient cause depends on the circumstances of each case and the court is called upon to exercise its discretion depending on the said circumstances. Musinga, JA in the case of The Hon. Attorney General v the Law Society of Kenya & Another, Civil Appeal (Application) No. 133 of 2011 (ur) defined sufficient cause to be:“Sufficient cause” or “good cause” in law means: …the burden placed on a litigant (usually by court rule or order) to show why a request should be granted or an action excused”. See BLACK’S LAW DICTIONARY, 9th Edition, page 251. Sufficient cause must therefore be rational, plausible, logical, convincing, reasonable and truthful. It should not be an explanation that leaves doubts in a judge’s mind. The explanation should not leave unexplained gaps in the sequence of events.”Similarly, the Supreme Court of India in the case of Parimal v Veena [2011] 3 SCC 545 observed that:"Sufficient cause" is an expression which has been used in large number of statutes. The meaning of the word "sufficient" is "adequate" or "enough", in as much as may be necessary to answer the purpose intended. Therefore, the word "sufficient" embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the view point of a reasonable standard of a curious man. In this context, "sufficient cause" means that party had not acted in a negligent manner or there was want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been "not acting diligently" or "remaining inactive." However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously.” 58.Turning to the circumstances of the present case, the Applicants' case rests on three grounds. First, that they were unaware of the hearing dates fixed for 3rd and 4th December, 2024 because their advocates had been unable to reach them. Second, that once the advocates were permitted to cease acting on 3rd December 2024, the court ought to have ensured that they were personally notified before the hearing proceeded. Third, that the proceedings conducted thereafter violated their right to be heard and therefore ought to be set aside. 59.The starting point is that the hearing dates were fixed on 22nd July, 2024 in the presence of counsel for all parties, including counsel then acting for the Applicants. There is no suggestion that the dates were fixed irregularly. Indeed, in law, notice to an advocate acting for a party is generally deemed to be notice to the party itself. The gravamen of the Applicants' complaint is therefore not that they were denied notice of the hearing dates, but rather that there was an alleged breakdown in communication between themselves and their advocate 60.That distinction is significant. Cases in which courts set aside proceedings ex debito justitiae ordinarily involve circumstances where a party was never served, where a hearing proceeded without notice, or where a fundamental procedural defect deprived a party of the opportunity to participate. 61.Whereas the Applicants attribute their non-attendance to an alleged breakdown in communication with their advocates and the unavailability of their designated contact person, those assertions remain wholly unsubstantiated. It is claimed that the said contact person was outside the country attending to personal health matters and was therefore unreachable. However, no travel documents, medical records, correspondence, communication logs, or any other documentary evidence have been placed before the court to support those allegations. 62.The court is therefore left with mere assertions, unsupported by proof, making it impossible to ascertain the nature, extent, or duration of the alleged inability to communicate. In the absence of cogent evidence, the explanation advanced by the Applicants remain speculative and falls short of the plausible and convincing account required to justify the court's exercise of discretion in their favour. 63.Further, the Applicants are not natural persons but corporate entities. The court notes, as did the trial court, that corporations ordinarily operate through directors, officers, company secretaries and established channels of communication. No explanation has been offered as to why the prosecution of the suits depended exclusively on a single individual or why no other officer of the respective companies could provide instructions to counsel or monitor the progress of the litigation. Equally absent is evidence demonstrating what steps, if any, were taken by the Applicants themselves to follow up on matters they had instituted before court. 64.The Applicants have also contended that once their advocates were allowed to cease acting on 3rd December 2024, the court ought to have ensured that they were personally notified before any further proceedings were undertaken. However, the record shows that the applications to cease acting were considered in the context of a hearing date that had long been fixed by consent. The court expressly declined an adjournment and directed that the matter would proceed on the following day as scheduled. Further, on 4th December, 2024, before the matter proceeded for hearing, the court noted that it was satisfied that the Plaintiffs were appropriately served and informed about the date. 65.The court affirms that the cessation of representation did not invalidate the hearing dates already taken, nor did it extinguish the Applicants' obligation to prosecute their claims. Nothing prevented the Applicants from attending court personally or appointing alternative counsel had they been diligent in monitoring their case. 66.The Applicants have further invoked Article 50 of the Constitution and the right to a fair hearing. That right is undoubtedly fundamental. However, the right to a fair hearing guarantees one a reasonable opportunity to be heard. It does not protect a litigant from the consequences of failing to utilise an opportunity lawfully afforded by the court. The record demonstrates that an opportunity to prosecute the suits existed and that the suits were dismissed because the Applicants were not ready to proceed on the date of the hearing. 67.The court must also consider the conduct of the Applicants after the dismissal of the two suits and counter claim. The suits were dismissed on 4th December 2024. Judgment in the remaining suit was delivered on 8th May 2025. Yet the present application was not filed until 28th October 2025. While the Applicants state that they only became aware of the proceedings during taxation, they have not explained what steps they took during the intervening period to ascertain the status of litigation in which they were active participants. The delay is substantial and remains largely unexplained. 68.It is now well settled that the primary responsibility for progressing a suit rests with the litigant who has invoked the court’s jurisdiction. In Utalii Transport Co. Ltd & 3 Others vs NIC Bank Ltd & Another [2014] eKLR, the court observed that it is the primary duty of a Plaintiff to take steps to progress its case. Similarly, in Thomas Mwaura Gitau & Another vs Eric Muhati & 2 Others [2012] eKLR, the court emphasized that parties have a duty to assist the court in achieving the expeditious disposal of disputes. 69.Viewed cumulatively, the material before the court reveals neither a procedural irregularity nor a convincing explanation for the Applicants' failure to prosecute their claims. What emerges instead is a prolonged failure to actively monitor and advance litigation commenced by the Applicants themselves. 70.Applying the foregoing principles to the facts of this case, the court is not persuaded that the Applicants have demonstrated sufficient cause to warrant the exercise of this court's discretion in their favour under Order 12 Rule 7 of the Civil Procedure Rules. 71.In the end, the court finds Notice of Motion dated 28th October, 2025 to be unmerited. The same is dismissed with costs. DATED, SIGNED AND DELIVERED VIRTUALLY IN NAIROBI THIS 9TH DAY OF JULY, 2026.O. A. ANGOTEJUDGEIn the presence of:Mr. Ngatia (SC) for the 2nd, 3rd and 4th DefendantsMr. Ogaro for Mr. Gathu for the 2nd PlaintiffMr. Angwenyi for the PlaintiffCourt Assistant: Tracy