REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NYERI
ELCL CASE NO. E027 OF 2024
BONIFACE MWANGI MUGO…………………………….…PLAINTIFF
-VERSUS-
MARGARET GATHONI MWANGI………….…....…1ST DEFENDANT
BEATRICE WANGARI MWANGI……………...…….2ND DEFENDANT
MARGARET MUTHONI WANJAU……….…………3RD DEFENDANT
RULING
1. On May 13, 2026, this Court delivered a ruling concerning an application by the 3rd Defendant/Applicant under Notice of Motion dated January 10, 2024. Immediately after the delivery, counsel for the parties pointed out to me that there was an application dated December 5, 2023, and that the predecessor of this Court (Kimani J.) had directed that the two applications be heard together, and that, in fact, counsel for the parties had already submitted two applications.
2. It is that ruling I am dealing with here.
3. In the ruling dated May 13, 2026, this Court found as follows concerning the application dated January 10, 2024:
“Since the 3rd Defendant was not heard by the Land Dispute Tribunal, and it has since been phased out, I believe she was denied a fair hearing. This is sufficient reason to set aside the Court's order adopting the Award as the Court's final verdict, thereby allowing the suit to be reheard. The 3rd Defendant has the right to rebut and to a fair hearing. Therefore, I conclude she should be given the chance to exercise these rights.”
4. The application the Court is now dealing with, which forms the issues for the determination of this Court, seeks that:
a) This application is to be certified as urgent and heard on a priority basis.
b) This Honorable Court be and is hereby pleased to reinstate the Plaintiff/Applicant’s suit.
c) This Honorable Court be pleased to allow the Plaintiff’s application of 16th February 2010 and have the Elders’ Award dated 17th August 2000 adopted as the Judgment of the Court.
d) The costs of this application be provided for.
5. To me, condensing what the application seeks, the issue for determination is whether the orders issued on December 21, 2023, should stand and who should bear the costs.
6. The Respondent believes they cannot, arguing that the Land Disputes Tribunal acted beyond its mandate and therefore ultra vires. That said, the determination or decision of the elder’s award has also been defeated by the "doctrine of laches" under the Limitation of Actions Act.
7. It is submitted that at the said Mukurwe-ini land disputes tribunal, only the Plaintiff and the 1st Defendant appeared, as the claim was purely against her. The 2nd and 3rd Defendants were included only because the deceased 1st Defendant had caused land parcel No. Githi/Kirerema/185 to be registered in the names of the three Defendants. It is contended that the said award was overtaken by events after the death of the 1st Defendant and that the suit abated. It is her view that the Plaintiff abandoned this suit by failing to prosecute it for years since 2000, and that the suit should be dismissed with costs.
8. Further, according to the 3rd Defendant, all issues have now been overtaken by events since she filed the Mukurwe-ini Succession Cause No. 9 of 2020 in the estate of her deceased grandmother, Margaret Gathoni Mwangi, who was the 1st Defendant in this matter.
9. On the other hand, the Applicant submits that the issues the 3rd Defendant/Applicant purports to raise in its application are untenable and unmeritorious because all the parties consented to submit to the arbitration of the District Officer, Mukurwe-ini, and four elders on November 11, 1998.
10. The arbitration Award was entered on August 17, 2000, and was filed with the Court and read to the parties on May 18, 2004. Subsequently, the 3rd Defendant filed an objection to the Award by application dated June 9, 2004, but never prosecuted it.
11. Therefore, he argues that the 3rd Defendant’s assertion that the Lands Tribunal lacked jurisdiction is an afterthought and a deliberate tactic intended to delay the administration of justice further.
12. Regarding laches, it is submitted that a party who completely abandons their claim or defense through prolonged, unexplained inaction is deemed to have forfeited their right to be heard on that issue. Section 35(3) of the Arbitration Act, 1995 provides that an application to set aside an arbitral award must be made within three months of the award's date. Order 46, rule 17 of the Civil Procedure Rules provides that an application to set aside an award from a court-ordered arbitration must be made within thirty (30) days after the award is filed or read, a period that has already lapsed for the 3rd Defendant.
13. The Plaintiff submits that he has suffered prejudice for nearly nineteen (19) years, since the 3rd Defendant left her application to set aside the award dormant. In the meantime, the Defendants continued to enjoy the use and occupation of the suit land, despite the Plaintiff's eviction, relying on the maxim that equity does not aid the indolent.
14. Regarding the ex parte nature of the impugned orders, Plaintiff/Applicant submitted that a compelling reason justified genuine urgency; specifically, Succession Cause No. 9 of 2020 concerning the suit land had been stayed pending the outcome of this suit. The succession court was in a state of limbo, unable to proceed without a final determination in this matter.
15. Regarding the 3rd Defendant’s contention that the Plaintiff’s advocates are not properly on record for failing to seek leave, it was submitted that under Order 9, Rule 5 of the Civil Procedure Rules, a change of advocate before judgment is effected by filing and serving a Notice of Change of Advocates. An application for leave under Order 9, Rule 9 is required only when a change of advocate is sought after judgment has been entered, which had not yet occurred in this case. Thus, their notice of change of advocates is legally tenable.
16. It is concluded that the arbitral award dated August 17, 2000, arose from a valid consensual arbitration conducted under the Court’s supervision. The Defendants were properly joined, represented, and bound by the proceedings, and the statutory period for challenging the award expired. They contend that the 3rd Defendant’s application is time-barred and undermined by her own prolonged failure to prosecute the application to set aside the award. They pray that the orders of December 18, 2023, be confirmed and upheld.
17. According to the record, the orders entered on December 21, 2023, arose from the application dated December 5, 2023. The orders issued by Hon. Justice Martin Muya read as follows:
a) THAT this Honourable Court be and is hereby pleased to reinstate the Plaintiff/Applicant’s suit.
b) THAT this Honourable Court be and hereby pleased to allow the Plaintiff’s application of 16th February 2010 and have the Elders’ Award dated 17th August 2000 adopted as the Judgment of the Court.
18. The suit pending before the Court had been dismissed for want of prosecution. The Plaintiff attributed the failure to prosecute to his previous advocates on record, who failed to appear in Court on the scheduled dates. The Application also sought to adopt the Elders’ Award dated 17th August 2000 as the judgment of the Court. The 3rd Defendant had previously objected to it but did not prosecute her application.
19. The reinstatement was ex parte.
20. A review of the orders issued will show that the suit was not only reinstated but also that orders were issued allowing the Plaintiff’s application of 16th February 2010 and adopting the Elders’ Award dated 17th August 2000 as the Judgment of the Court.
21. The Plaintiffs' application had been pending since February 16, 2010, and the adopted award was dated August 17, 2000. The Respondent contends that too much water had gone through the bridge, with parties in the matter having died, and that there is no reasonable explanation for the inordinate delay.
22. On laches and delays, I will agree that this was not one of those suits to reinstate.
23. Consequently, the application dated December 5, 2023, is hereby dismissed in its entirety, with costs.
Ruling Dated, Signed, and Delivered Virtually at Nyeri on the 2nd day of July 2026.
____________________________
E. K. MAKORI
JUDGE
In the presence of:
Mr. Otieno for the Plaintiff
Denis: Court Assistant
In the absence of:
Mr. Baru for the Defendants.
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