JOHNSTONE MATHENGE NDIRITU VS JESSE THEURI NJOKA AND JOHNSTONE KARIUKI NJOKA

1.    The Applicant filed the Notice of Motion dated 5th July 2025 seeking the following ORDERS:
1)    Spent.
2)    THAT the firm of J. Wangechi & Company Advocates be granted leave to come on record for the Applicant in this matter.
3)    THAT this Honourable Court be pleased to review, vary and/or set aside its order made on 26th February 2025, which marked the applicant’s suit as dismissed for non-attendance with costs to the defendants.
4)    THAT this Honourable Court be pleased to reinstate the Applicant’s suit for full hearing and determination.
5)    THAT this Honourable Court be pleased to issue an order of temporary injunction against the respondents, their servants, agents and/or any other person from in any way dealing, and/or entering, and/or erecting any structures, and/or damaging, and/or in any other way utilizing and/or remaining on all that suit property known as Aguthi/Muruguru/2696 pending the hearing and final determination of the suit herein.
6)    THAT the costs of this application be borne by the Respondents.
2.    The Applicant swore a supporting affidavit stating that he has been living with his dependents on the suit property L.R Aguthi/Muruguru/2696 since March 1996, which fact has been well known to the Respondents. Without being asked by the Respondents to vacate. He claims to have instructed the firm of Oenga, Maingi & Omondi Advocates to institute this suit seeking orders of adverse possession. He averred that he was led to believe that the suit was proceeding well, and was oblivious of the dismissal of the suit for non-attendance on the 26th of February 2025 when the matter was scheduled for hearing. The Applicant deposed that he was unaware that the matter was scheduled for hearing on the said date since his Advocate did not inform him of the date, thus he did not attend court.

3.    The Applicant states that he only came to learn that the suit had been dismissed recently when he saw strangers attempt to force their way into the suit property and start to destroy the properties thereon, which matter he reported to Muruguru Police Post under O.B No. 02/13/05/25.

4.    He then instructed the firm of J. Wangechi & Co. Advocates to come on record in place of Oenga, Maingi and Omondi Advocates.

5.    The Applicant expressed his intent on having his suit heard to conclusion and determined on its merits and opined that the dismissal was occasioned by the mistake of his former advocates. He further stated that the said dismissal has deprived him of an opportunity to be heard, and it would be prejudicial to him if he were to be forced to bear the consequences of his former advocates’ inadvertence.


6.    The Applicant also prays for a temporary order of injunction against the respondents herein in order to preserve the substratum of the suit. He added that the application has been brought without unreasonable delay and that he is ready and willing to abide by any conditions the Court may set for granting the orders herein.
The 1st Respondent’s Replying Affidavit
7.    The 1st Respondent swore a replying affidavit on the 25th July 2025, in which he deposed that the instant application is an afterthought and has been prompted by the fact that the suit land has subsequently been consolidated with the Applicant’s family land known as LR. Aguthi/Muruguru/849 and subdivided into 20 plots. The Applicant’s plot is Aguthi/Muruguru/2776, which they are in the process of transferring to him.

8.    He further deposed that the hearing date in this suit was fixed in court on the 14th October 2024 by the advocates and that the Plaintiff had the responsibility of following up on his case within the 5 months from the date of fixing the hearing date to the actual date, stating that the delay in filing this application is a clear indication that he had lost interest in this suit.

9.    Further, the 1st Respondent accused the Applicant of having knowledge that his suit was dismissed immediately it happened, and that is the reason why he reported them to the police. He annexed a copy of the Charge Sheet stamped by the Office of the Director of Pubic Prosecutions on the 9th of June 2025.

10.    The Respondents’ contention is that the suit land originated from family land, which was shared among the Respondents and the Applicant’s father. That the claim of adverse possession against his uncles and yet his father’s land is adjacent to the suit land is misconceived and the same should not be reinstated.
The Applicant’s submissions
11.    Counsel for the Applicant relied on Order 12 rule 6 and 7 of the Civil Procedure Rules, on the discretion to set aside an order of dismissal of a suit for non-attendance and reinstatement. They cited the authority of Bantus Investment Limited v. Kenya Wildlife Service (2023) KEELC 197(KLR).

12.     It was submitted that the delay was not inordinate, given the circumstances and relied on the cases of Lamu Estate Agency Limited v. Attorney General & 2 others(2022) KEELC 3736(KLR) and Charles Othim v. Fanuel Orony Dande(2023) KEELC 17397(KLR).

13.    Further, the Applicant submitted that the Respondents will not be prejudiced in a manner that cannot be compensated by costs, citing the authority of Sanjivan Mukherjee v. Karachiwalla Nairobi Ltd (2024) KECA 1676(KLR).

14.    On the other hand, the Applicant submits that he will be greatly prejudiced if the application is dismissed, as he will miss out on the opportunity to have his claim over the suit property determined. Counsel relied on the authority of Mwangi S. Kimenyi v. Attorney General & Another(2014)KLR where the Court found that dismissal is a draconian judicial act.

15.    Regarding the prayer for a temporary injunction, Counsel relied on the provision of Order 40 rule 1 of the Civil Procedure Rules. It was submitted that they have a prima facie case, and relied on the Court of Appeal authority of Emrose Academy Ltd vs. Director of Surveys & 3 others(2023)KECA 1423(KLR), submitting that the Applicant has demonstrated that he has a claim over the suit parcel of land resulting from his open, continuous and exclusive use and occupation of the said parcel of land since 1996.

16.    With regard to irreparable damage, it was submitted that the Applicant will not only lose his home and investments on the suit property, but it could also be alienated in an improper subversion of a potential decree in the Applicant’s favour. They also submit that the balance of convenience tilts on the Applicant’s side. Counsel relied on the authorities of: Charles Otieno Gem & Another v.Nicholus Omondi Jura & 3 others(2022)KEELC and Estate of Jackson Koaech v. Michael Bett Siror & 4 others(2025)KEELC 628(KLR)

The Respondents’ submissions.
17.    The Respondents’ submission is that the delay of 5 months is grossly inordinate for the applicant to take action to realize that his suit was already dismissed and relied on the holding in the case of Mwangi S. Kimenyi v. Attorney General & Another(2014)KLR.

18.    Further, that the suit land no longer exists, having been consolidated and combined with other family land and subdivided into 20 plots, which was what prompted the Applicant to file this suit.

19.    It was also submitted that the Respondents will be prejudiced if the suit is reinstated, as the costs they have incurred to subdivide the larger suit land will go down the drain.

20.    It is the Respondent's submission that the Applicant is wholly to blame for the dismissal of his case, as he was not vigilant enough as a litigant and left his case to an advocate. They relied on the holding in the case of Fredrick Otieno Gudu vs. African Apparel EPZ Limited.
Analysis and Determination

21.    The application herein, the response and the rival submissions. The issues for determination are;
A)    Whether to review, vary and/or set aside the orders of 26/02/2026 and reinstate the suit.  A
B)    Whether to issue a temporary injunction against the Respondents to restrain them from entering and dealing with the suit property.

Whether to review, vary and/or set aside the orders of 26/02/2026 and reinstate the suit.

22.    From the court record, a date for hearing this suit was taken in Court on 14th of October 2024, in the presence of both Counsels for the Plaintiff and the Defendant and was scheduled for 26th February 2025. On the said hearing date, the Applicant and his Advocate were absent from Court. Counsel for the Defendant was present and ready to proceed with 2 witnesses. The Court then proceeded to dismiss the suit with costs to the Defendant.

23.    The Applicant claims that it was his previous Counsels on record’s inadvertence and failure to attend court and inform him of the hearing date that led to the dismissal of the suit.

24.    The Court dismissed this suit under Order 12 Rule 1, which states that:
    “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.”

25.    Counsel for the Applicant filed this application pursuant to Order 12 Rule 7, which provides that:
    “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.”

26.    Counsel for the Respondents relied on the case of Fredrick Otieno Gudo v Africa Apparel EPZ Limited [2018] KEELRC 474 (KLR) in which the Lady Justice Maureen Onyango held that Counsel for the applicant misled the court and had not furnished court with a valid reason for the delay in prosecuting the suit and dismissed the application for reinstatement.
27.    In the case of Savings and Loans Limited v Susan Wanjiru Muritu Nairobi (Milimani) HCCS No. 397 of 2002, quoted by Justice Okwany in International Air Transport Association & another v Roskar Travel Limited & 3 others (Civil Case E457 of 2020) [2022] KEHC 200 (KLR) (Commercial and Tax) (17 March 2022) (Ruling) as she held as follows:

“In Savings and Loans Limited v Susan Wanjiru Muritu Nairobi (Milimani) HCCS No. 397 of 2002 Kimaru, J expressed himself as follows: "Whereas it would constitute a valid excuse for the Defendant to claim that she had been let down by her former Advocates failure to attend Court on the date the application was fixed for hearing, it is trite that a case belongs to a litigant and not to her advocate. A litigant has a duty to pursue the prosecution of his or her case. The court cannot set aside dismissal of a suit on the sole ground of a mistake by counsel of the litigant on account of such advocate's failure to attend court. It is the duty of the litigant to constantly check with her advocate the progress of her case. In the present case, it is apparent that if the defendant had been a diligent litigant, she would have been aware of the dismissal of her previous application for want of prosecution soon after the said dismissal. For the defendant to be prompted to action by the plaintiff’s determination to execute the decree issued in its favour is an indictment on the defendant. She had been indolent, and taking into account her last conduct in the prosecution of the application to set aside the default judgment that was dismissed by the court, it would be a travesty of justice for the court to exercise its discretion in favour of such a litigant. (emphasis added)”
    I hold a similar view that it is not enough for a party to simply blame an advocate for a mistake, but the party must show tangible steps taken by him in following up on his matter.

28.    However, Courts have also found that the mistakes of Counsel should not be visited upon a litigant. In the case of CFC Stanbic Limited versus John Maina Githaiga & another [2013] eKLR, the Court of Appeal held as follows-
    "On the issue of the mistake of counsel, it is not in dispute that the appellant gave instructions to its advocates in good time once it was served with the pleadings and summons to enter appearance. Therefore, the failure to enter an appearance and file a defence is clearly attributable to its advocate who failed to enter an appearance and file a defence in good time. This being the mistake of counsel, the same ought not to be visited upon the appellant. This Court is guided by the case of Lee G Muthoga V Habib Zurich Finance (K) Ltd & Another, Civil Application No. Nai 236 Of 2009, where this Court held: "It's a widely accepted principle of law that a litigant should not suffer because of his advocate's oversight." In the instant appeal, we are of the view that the appellant should not suffer because of the mistakes of its counsel.”

29.    The Court agrees that the mistake of the Applicant’s previous counsel on record should not be visited upon him. The Court is satisfied that the Applicant has given sufficient reason for failure to attend Court, putting the blame on his previous counsel on record for failing to inform him of the date and attend Court. The Court record shows that the previous Counsel for the Applicant was present in Court at all times prior to the date when the suit was dismissed. He therefore cannot be accused of lack of diligence when he failed to attend court on the one occasion when the suit was dismissed.

30.    The Court has, however, struggled with the delay from the date when the suit was dismissed on 26th February 2026 to the time when the present application was filed. The Respondents contended that the time lapse is indicative of the fact that the Applicant did not diligently follow up on his case with his Advocate.   They stated that the Applicant reported the matter of the destruction of the trees on the suit property in May 2025, the Charge Sheet was approved by the Office of the Director of Public Prosecutions in June 2025, which occurrence he states is what prompted him to realize that the suit had been dismissed and filed this application in July 2025.

31.    The Court is of the view that the delay of nearly seven months is significant. In Bi-Mach Engineers Ltd v James Kahoro Mwangi [2011] eKLR, even a delay of 30 days was found to be “borderline” absent a satisfactory explanation. The Court has considered the explanation given by the Applicant and has found it plausible and is willing to exercise discretion in his favour. There is no maximum or minimum period of delay set out under the law. Further, the reason or reasons for the delay must be reasonable and plausible. In Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] eKLR as was cited by the applicant, this Court stated:
    “The law does not set out any minimum or maximum period of delay. All it states is that any delay should be satisfactorily explained. A plausible and satisfactory explanation for delay is the key that unlocks the court’s flow of discretionary favour. There has to be valid and clear reasons, upon which discretion can be favourably exercisable.”
32.    On the question of prejudice to the Respondent, it is the Court’s view that the Respondents have not demonstrated that they will suffer irreparable prejudice. Prejudice must be tangible as was stated in Stanley Kahoro Mwangi v Kanyamwi Trading Co Ltd [2015] eKLR. It is the Court’s view that any inconvenience can be addressed by costs.

33.    Counsel for the Applicant relied on the authority of Mwangi S. Kimenyi v Attorney General & another [2014] KEHC 4220 (KLR) in which F. Gikonyo J held that:
        “And as I stated earlier, dismissal of a case is a draconian judicial act which drives the plaintiff away from the seat of judgment. It should be done sparingly and in cases where dismissal is the feasible and just thing to do. Therefore, courts should strive to sustain suits rather than dismiss them, especially where justice would still be done, and fair trial had despite the delay. Any explanation for the delay which is given should be properly evaluated by the court to see whether it is reasonable.”

34.    Justice GV Odunga held as follows in the case of Mureithi Charles & another v Jacob Atina Nyagesuka [2022] eKLR :
        “In considering whether or not to set aside a judgement, a judge has to consider the matter in the light of all the facts and circumstances both prior and subsequent and of the respective merits of the parties before it would be just and reasonable to set aside or vary the judgement, if necessary, upon terms to be imposed. Hence the justice of the matter and the good sense of the matter, are certainly matters for the judge.”
35.    From the foregoing, the court is convinced of the justice of sustaining the suit for hearing on merit and that it is just and reasonable to set aside the orders dismissing the suit herein and reinstating it for hearing and determination on merit.

    Whether the Court should grant the Applicant a temporary injunction against the Respondents.
36.    The Applicant sought a temporary order of injunction against the Respondents restraining them from dealing, entering, erecting structures, damaging, utilizing or remaining on the suit property pending the hearing and final determination of this suit.

37.    Order 40 Rule 1 of the Civil Procedure Rules provides for cases in which temporary injunctions may be granted and states as follows;
“Where in any suit it is proved by affidavit or otherwise—
(a)    that any property in dispute in a suit is in danger of being wasted,     damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree; or……..
    The court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further orders.

38.    The conditions set for consideration in granting an injunction are now well settled in the case of Giella vs Cassman Brown & Company Limited (1973) E A 358, where the court expressed itself on the conditions that a party must satisfy for the court to grant an interlocutory injunction:-
“First, an applicant must show a prima facie case with a probability of success.  Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the Court is in     doubt, it will decide an application on the balance of convenience.”

39.    Has the Applicant established a prima facie case with a probability of success? In my opinion, the Applicant has a prima facie case, whose success needs to be determined at the end of the suit. He claims to have been in possession of the suit land from 1996. Courts have held that for an order of injunction to issue, one must demonstrate that they have a legal right over the suit property that is in need of protection. The Learned Judges of the Court of Appeal in the case of Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] eKLR found that:
“Recently, this court in Mrao Ltd. V. First American Bank of Kenya Ltd & 2 others[2003] KLR 125  fashioned a definition for “prima facie case” in civil cases in the following words: “In civil cases, a prima facie case is a case in which on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party to call for an explanation or rebuttal from the latter. A prima facie case is more than an arguable case. It is not sufficient to raise issues but the evidence must show an infringement of a right, and the probability of success of the applicant’s case upon trial. That is clearly a standard, which is higher than an arguable case.” We adopt that definition save to add the following conditions by way of explaining it. The party on whom the burden of proving a prima facie case lies must show a clear and unmistakable right to be protected which is directly threatened by an act sought to be restrained, the invasion of the right has to be material and substantive and there must be an urgent necessity to prevent the irreparable damage that may result from the invasion. We reiterate that in considering whether or not a prima facie case has been established, the court does not hold a mini trial and must not examine the merits of the case closely. All that the court is to see is that on the face of it the person applying for an injunction has a right which has been or is threatened with violation”
40.    The Applicant claims rights of adverse possession to the suit property. Whether or not such rights exist has yet to be shown and proven, the Court is of the opinion that the interests of justice and the balance of convenience lie in issuing an order of status quo pending the final hearing and determination of the suit to protect the substratum of the suit. The Court is satisfied that the suit property is in danger of being wasted, damaged and/or sold as the suit is pending in court.

41.    This is shown in the 1st Respondent’s replying affidavit, sworn on 25th July 2025, where he deposed that the suit land has subsequently been consolidated with the Applicant’s family land known as LR. Aguthi/Muruguru/849 and subdivided into 20 plots. That the Applicant’s plot is Aguthi/Muruguru/2776, which they are in the process of transferring to him. This assertion is an indication that the substratum of the suit land is in danger of being dealt with in ways that may change, interfere and/or completely destroy the suit land to the Applicant's prejudice.

42.    In Kenya Airline Pilots Association (KALPA) Vs Co-operative Bank of Kenya Limited & another [2020] eKLR, the purpose of a status quo order was explained as follows:
“……. By maintaining the status quo, the court strives to safeguard the situation so that the substratum of the subject matter of the dispute before it is not so eroded or radically changed or that one of the parties before it is not so negatively prejudiced that the status quo ante cannot be restored, thereby rendering nugatory its proposed decision.”

43.    Thus, the suit property would be preserved as it is, preventing any further changes being made to the locus in quo until the suit is concluded.
    Murithi J in Boabab Beach Resort, as quoted by F. Tuiyot Saifudeen Abdullahi & 4 Others in Mombasa High Court Misc. Civil Cause No. 11 of 2012, described the nature of a status quo order as follows:
“In my view, an order to Status quo to be maintained is different from an order of injunction both in terms of the principles for grant and the practical effect of each. While the latter is a substantive equitable remedy granted upon establishment of a right, or at interlocutory stage, a prima facie case, among other principles to be considered, the former is simply an ancillary order for the preservation of the situation as it exists in relation to pending proceedings before the hearing and determination thereof. It does not depend on proof of right or prima facie case. In its effect, an injunction may compel the doing or restrain the doing of a certain act, such as, respectively, the reinstatement of an evicted tenant or the eviction of the tenant in possession.  An order for status quo merely leaves the situation or things as they stand pending the hearing of the reference or complaint.”

44.    The Court is persuaded that it is in the interest of justice that the Notice of Motion dated 5th July 2025 be allowed in the following terms;

1.    The Orders of this court made on 26th February 2025, dismissing this suit for non-attendance, are hereby set aside.
2.    This suit is hereby reinstated for full hearing and determination.
3.    The current status quo pertaining to the suit property known as Aguthi/Muruguru/2696, whether in its original form, subdivided or consolidated with other parcels of land, be maintained pending the hearing and final determination of this suit.
4.    Costs of this application to be paid to the Defendants
Dated, Signed and Delivered via Microsoft Teams at Nairobi, this 27th day of January 2026
In the Presence of:-
Janice Kendi: Court Assistant
M/s Wangechi for the Applicant
Kebuka Wachira for the Respondents