https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3462

Nguu v Kahuki & another (Environment and Land Appeal E185 of 2025) [2026] KEELC 3462 (KLR) (4 June 2026) (Ruling) Neutral citation: [2026] KEELC 3462 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Appeal E185 of 2025 JG Kemei, J June 4, 2026 Between Virginia Wangui Nguu Appellant and Minnie Watiri Kahuki 1st Respondent Stephen Kamau Kahuki 2nd Respondent Ruling (In respect of Applicant's application dated 17/11/25) 1.The application before the Court is dated 17/11/25, filed by the Applicant seeking orders as follows;a.There be a stay of execution of the judgment and decree dated 12/9/25 and 24/9/25, respectively, in MCELC E015 of 2022 – Minnie Watiri Kahuki & Stephen Kamau Kahuki vs Virginia Wangui Nguu pending the hearing and determination of the appeal herein.b.The Hon Court be pleased to reinstate the stay of execution previously granted, which lapsed on 22/10/25 [hearing date] following dismissal for non-attendance and want of the Applicant/appellant on that date.c.Costs of this application be provided for. 2.The application is supported by the grounds annexed thereto and the supporting affidavit of Pius John Njogu Nguu and Esther Wambui Chege, sworn on 17/11/25, which states that they are joint administrators of the Applicant's estate and are therefore competent to swear the affidavit. 3.That they filed an appeal alongside the application for orders of stay of execution, which was allowed on 269/25. However, the application was dismissed for want of prosecution on 22/10/25, hence the application for reinstatement. That, unless the stay orders are reinstated, the Respondent may proceed with eviction, rendering the outcome of the appeal nugatory. 4.While opposing the application, the Respondent stated that the Applicant filed a notice of motion dated 23/9/25 seeking a stay of execution of the judgment delivered on 12/9/25, pending the hearing and determination of the appeal. That notice of motion was dismissed on 22/10/25 for non-attendance. The Respondent further submitted that the current application is similar to the one dismissed and seeks similar orders, amounting to an abuse of the Court process. The prayer to reinstate the interim orders cannot be granted because the application on which those orders were granted was dismissed. The Respondent therefore submitted that the application lacks merit and ought to be dismissed. The written submissions 5.Parties have duly filed their written submissions, which I have read and considered. Analysis and determination 6.The key issues for determination are;a.Whether the application before the Court is competentb.Whether the interim orders issued on 26/9/25 can be reinstated while the substantive application stands dismissed. 7.The background to the application before the Court is set out in the Memorandum of appeal dated 23/9/25, in which the Applicant sought, inter alia, orders allowing the appeal and setting aside the judgment delivered on 12/9/25. Alongside the appeal, the Applicant filed an application dated 23/9/25 under a certificate of urgency, seeking, inter alia, orders of stay of execution restraining the Respondents from executing the said judgment pending the hearing and determination of the appeal. The Court directed that the application be served upon the Respondents and granted interim orders staying execution pending the inter partes hearing on 22/10/25. 8.On the material date of the hearing of the application on 22/10/25, the Applicant and her counsel were absent from Court when the matter was called out on the virtual platform. The Respondent's counsel sought dismissal orders on the grounds of non-attendance and non-prosecution of the application. The application was dismissed and the Court directed that the matter be mentioned on 12/11/25 before the Deputy Registrar to confirm the availability of the trial Court record and the filing of the Record of appeal. 9.Following the dismissal of the application, the Applicant filed another application on even date seeking two orders;a.The order of this Court dated 22/10/25, dismissing the Applicant's application for a stay of execution, restoring the Respondents herein, their servants, employees, and/or agents, and permitting the execution of all the orders listed in the judgment dated 12/9/2025 in MCELC E051 of 2022 against the appellant, pending the hearing and determination of the appeal in this matter, be set aside.b.That the stay orders made by this Court on 22/10/25, dismissing the appellant's application for a stay of execution and restraining the Respondents herein, their servants, employees, and/or agents from executing all the orders listed in the judgment dated 12/9/2025 in MCELC E 051 of 2022 against the appellant, pending the hearing and determination of the appeal in this matter, be reinstated. 10.On 12/11/25, counsel for the Applicant withdrew the application referred to under para 9 with costs and thereafter filed the current application. Whether the application before the Court is competent 11.Article 50 (1) of the Constitution guarantees every person the right to have any dispute decided in a fair and public hearing before a Court. This right is, however, not absolute and must be exercised diligently. Conversely, Article 159(2) (b) and (d) of the Constitution mandates that justice shall not be delayed and that justice must be administered without undue regard to procedural technicalities. 12.Under Order 17 Rule 3, any of the parties in the suit may apply for the suit or the application to be dismissed for non-attendance and non-prosecution, just as it happened in this case. Order 12 rule 1 provides as follows;“If on the day fixed for hearing, after the suit has been called on for hearing outside the Court, neither party attends, the Court may dismiss the suit” 13.Order 12 Rule 3 contemplates a scenario where the defendant/Respondent only appears, and the Applicant /plaintiff is absent. It states as follows;“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.(2)If the defendant admits any part of the claim, the Court shall give judgment against the defendant upon such admission and shall dismiss the suit so far as it relates to the remainder except for good cause to be recorded by the Court.(3)If the defendant has counterclaimed, he may prove his counterclaim so far as the burden of proof lies on him. 14.The consequence of dismissal under Order 12 Rule 6(2) is that, no fresh suit may be brought in respect of the same cause of action. This provision, which precludes the plaintiff from bringing a fresh suit on the same cause of action, renders the order of dismissal a final adjudication against the other party and should be followed by a regular order dismissing the application. 15.Section 2 of the Civil Procedure Act provides that a decree or order is a formal expression of an adjudication that, so far as regards the Court expressing it, conclusively determines the rights of the parties. It includes both a preliminary and a final decree. 16.The question then is whether the dismissal orders delivered on 20/11/25 for purposes of the above rule are considered to be a judgment of the Court. The answer is found in the decision of the Court of Appeal in Njue Ngai v Ephantus Njiru Ngai & another [2016] eKLR where the Court stated as follows;“…another issue may arise as to whether a dismissal of a suit for non attendance of the plaintiff or for want of prosecution, amounts to a judgment in that suit. The predecessor of this Court answered that issue in the affirmative when considering the dismissal of a suit for failure by the plaintiff to attend Court in the case of Peter Ngome vs Plantex Company Limited [1983] eKLR. stating:“Rule 4(1) does not say “judgment shall be entered for the defendant or against the plaintiff.” It uses the word “dismissed.” The Civil Procedure Act does not define the word “judgment”. According to Jowitt’s Dictionary of English Law 2nd ed p 1025:“Judgment is a judicial determination; the decision of a Court; the decision or sentence of a Court on the main question in a proceeding or/one of the questions, if there are several.”Mulla’s Indian Civil Procedure Code, 13th Ed Vol 1 p 798 says: “Judgment” means the statement given by the judge on the grounds of a decree or order;” “Judgment - in England, the word judgment is generally used in the same sense as decree in this code.”In my view, a judgment is a judicial determination or decision of a Court on the main question(s) in a proceeding and includes a dismissal of the proceedings or a suit under Rule 4(1) of Order IXB or under any other provision of law. A dismissal of a suit, under Rule 4(1), is a judgment for the defendant against the plaintiff. An application under Rule 3 of Order IXB includes application to set aside a dismissal. This must be so because, when neither party attends Court on the day fixed for hearing, after the suit has been called on for hearing outside the Court, the Court may dismiss the suit, and, in that event, either party may apply under Rule 8 to have the dismissal set aside or the plaintiff may bring a fresh suit subject to any law of limitation of actions: See Rule 7(1) of Order IXB. This, I think, clearly shows that Rule 7(2) was intended to bar a plaintiff whose suit has been dismissed under Rule 4(1), only from bringing a fresh suit. That provision does not bar such a plaintiff from applying for the dismissal to be set aside under Rule 8.” 17.Similarly, the Court of Appeal in the case of Co-operative Bank of Kenya Limited v Cosmas Mrombo Moka & Legacy Auctioneering Services [2019] eKLR, while confronted by a similar issue, referred to the definition of judgement as follows;“As per Mulla’s Indian Civil Procedure Code, 13th Ed Vol 1 p 798 says: “Judgment” means the statement given by the judge on the grounds of a decree or order;” “Judgment - in England, the word judgment is generally used in the same sense as decree in this code. “Consequently, a judgment is a judicial determination or decision of a Court on the main question(s) in a proceeding and includes a dismissal of the proceedings or a suit. A dismissal of a suit, under Order 12 Rule 6 (2) of the Civil Procedure Rules, is a judgment for the defendant against the plaintiff. A case in point is a decision of this Court in the Njue Ngai case, even a matter dismissed for want of prosecution still constitutes a matter that was heard and decided within the meaning of Section 7 of the Act. In that case, such a matter was held to be res judicata and no fresh proceedings could be entertained based on the same cause of action and by the same parties. 18.In the case of Michael Bett Siror Vs Jackson Koech [2019] eklr the Court states as follows;“[30] We accept that dismissal of a suit for non-attendance or for want of prosecution can amount to a judgment, however, such a judgment does not satisfy the requirements of Section 7 of the Civil Procedure Act, as the issues raised in the suit has not been addressed and finally determined by the Court, but the judgment is the result of what may be described as a technical knockout.(31)Thus, we reject the appellant’s contention and find that the application of the doctrine of res judicata was very contentious and required full investigation at the trial, more so in a longstanding land dispute involving a big parcel of land and several other people.” 19.Guided by the above decisions, I concur with the decisions of the Court that a dismissal for non-prosecution is a judgment of the Court. In this case, the Applicant, having been absent, is not at liberty to file a fresh application on the same course of action as the one that was dismissed, and the dismissal, having not been heard on the merits, amounts to a technical knockout. 20.Is the application an abuse of the process of the Court? In the case of Satya Bhama Gandhi v Director of Public Prosecutions & 3 others [2018] eKLR, Justice Mativo ( as he then was) said the following;“22.The concept of abuse of Court/judicial process is imprecise. It involves circumstances and situation of infinite variety and conditions. It is recognized that the abuse of process may lie in either proper or improper use of the judicial process in litigation. However, the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponents.23.The situation that may give rise to an abuse of Court process are indeed in exhaustive, it involves situations where the process of Court has not been or resorted to fairly, properly, honestly to the detriment of the other party. However, abuse of Court process in addition to the above arises in the following situations:-a.Instituting a multiplicity of actions on the same subject matter, against the same opponent, on the same issues or multiplicity of actions on the same matter between the same parties even where there exists a right to begin the action.b.Instituting different actions between the same parties simultaneously in different Court even though on different grounds.c.Where two similar processes are used in respect of the exercise of the same right for example a cross appeal and Respondent notice.d.Where an application for adjournment is sought by a party to an action to bring another application to Court for leave to raise issue of fact already decided by Court below.e.Where there no iota of law supporting a Court process or where it is premised on recklessness. The abuse in this instance lies in the inconvenience and inequalities involved in the aims and purposes of the action.f.Where a party has adopted the system of forum-shopping in the enforcement of a conceived right.g.Where an appellant files an application at the trial Court in respect of a matter which is already subject of an earlier application by the Respondent at the Court of Appeal.h.Where two actions are commenced, the second asking for a relief which may have been obtained in the first. An abuse may also involve some bias, malice or desire to misuse or pervert the course of justice or judicial process to the irritation or annoyance of an opponent.” 21.Guided by the above decision, the act of filing a fresh application contrary to the provisions of Order 12 Rule 6(2) of the Civil Procedure Rules amounts to an abuse of the process of the Court, which this Court cannot countenance. 22.To serve the course of justice, Order 12 Rule 7 provides a post-dismissal avenue for a party whose suit/application has been dismissed to return to Court. It states as follows;“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” 23.The Applicant is therefore not without a remedy, given the avenues available to apply for the setting aside of the dismissal orders, to seek reinstatement, and/or to seek review of the said orders. It is instructive to note that the dismissal orders remain in force in the absence of any evidence that they have been set aside, reviewed, and/or vacated. Whether the interim orders issued on 23/9/25 can be reinstated while the substantive application stands dismissed. 24.It is undisputed that the application dated 23/9/25 was dismissed on 22/10/25, and consequently, the interim orders of execution granted on 26/9/25 fell away. Therefore, they are not available and cannot be reinstated in a vacuum, that is, in the absence of an application to anchor the orders. 25.In the end, the application is without merit. It is dismissed with costs to the Respondents. 26.It is so ordered. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 4TH DAY OF JUNE 2026 VIA MICROSOFT TEAMS.J. G. KEMEIJUDGEDelivered Online in the Presence of:1. N/A for the Appellant2. Ms Kulei for the Respondents3. CA – Yvette/Kendi