(In respect of the Notice of Motion dated 7 th April 2026 seeking for an order that the suit stands dismissed)
Background
1. The application by the 1 st Defendant dated 7 th April 2026 prays for one order to the effect that the Plaintiff’s suit stands dismissed. The 1 st Defendant asserts that this court in its ruling of 25 th September 2025, which reinstated the suit after a dismissal for want of prosecution, issued directions/conditions which the Plaintiff has not complied with.
2. The 1 st Defendant points out that the reinstatement of the Plaintiff’s suit was conditional. The Plaintiff was to pay thrown away costs of Kshs. 20,000/= to the 1 st Defendant in 30 days from the date of the ruling and take immediate steps towards compliance with pre-trial requirements within 30 days failing which the suit would stand dismissed.
3. In response to the application by the 1 st Defendant, the Plaintiff vide a replying affidavit sworn on 3 rd June 2026 and filed on 6 th June 2026, while acknowledging the ruling of the court, terms the application as misconceived, premature, bad in law and intended to unjustly lock out the Plaintiff from being heard on the merits of her case. She asserts that she duly paid the thrown away costs of Kshs. 20,000/= to the 1 st Defendant vide a cheque dated 7 th May 2026. She has attached a copy of the cheque marked as ‘JWR-02’.
4. The Plaintiff further avers that she has taken active steps towards compliance and prosecuting the suit. On 24 th March 2026, she did file a reply to the 1 st Defendant’s statement of defence and defence to counter claim thereby demonstrating a clear intention to prosecute the suit and comply with the directions of this court.
5. The Plaintiff pleads that it would be unjust and prejudicial to the Estate she represents if the suit was dismissed on the basis of procedural non-compliance while the dispute between the parties remain unresolved. She points out that the 1 st Defendant has also filed a counter claim relating to the ownership, title, validity of land transactions, alleged fraud, possession and dealings over the suit property(s).
Issues for determination
6. The sole and critical issue for determination in this matter is whether the court should strike out the Plaintiff’s suit for non-compliance with the conditions in the ruling of 25 th September 2025.
Analysis and determination
7. In determining the issue whether the court should strike out the Plaintiff’s suit as requested by the Applicant in the application under consideration, I am guided by the words of Ringera J (as he then was), in the case of Microsoft Corporation –versus- Mitsumi computer Garage Limited & another (200) eKLR , where he eloquently stated that;
“Rules of procedure are hand maidens and not mistresses of justice and should not be elevated to a fetish as theirs is to facilitate the administration of justice in a fair, orderly and predictable manner; not fetter or choke it and where it is evident that the Plaintiff has attempted to comply with the rule requiring verification of a plaint but he has fallen short of the prescribed standards, it would be to elevate form and procedure to a fetish to strike out the suit. Deviations from or lapses in form or procedure, which do not go to the jurisdiction of the court or prejudice the adverse party in any fundamental respect, ought not to be treated as nullifying the legal instruments thus affected and the court should rise to its higher calling to do justice by saving the proceedings in the issue.”
8. Applying the words of Ringera J, in the context of this case, the Plaintiff in my opinion has demonstrated her endeavor to comply with the orders/conditions imposed by the court; though she fell short of the timelines stipulated in the ruling of 25 th September 2025. She has paid the thrown away costs and responded to the statements of defence filed in this case and the counter-claim by the 1 st Defendant.
9. Often times, courts encounter inadvertent transgressions or unintentional omissions or commissions; by litigants. I believe, one of the intentions of the inherent power of the court is to enable it address such instances of inadvertence or unintentional omissions or commissions in the course of proceedings for the ends of justice or to prevent abuse of the process of the court.
10. In this case, I am persuaded that the Plaintiff has substantially complied with the conditions issued by the court towards the expedition of this case and its determination on the merits. All the pleadings and documents filed by the Plaintiff and subsequently by the Defendants are admitted on record. This matter shall be fixed for a pre-trial conference for further directions and issuance of a hearing date.
11. Consequently, the 1st Defendant’s application is disallowed. The court makes no orders as to costs.
It is so ordered.
Dated, Signed and Delivered at Kajiado Virtually this 4 th Day of August 2026.
M.D. MWANGI
JUDGE
In the virtual presence of:
Ms. Muthoni h/b for Ms. Asli Osman for the Plaintiff
Ms. Kioko for the 2 nd Defendant
N/A by the 1 st , 3 rd , 4 th , & 5 th Defendants
Court Assistant: Alex
M.D. MWANGI
JUDGE
RULING KAJIADO ELCC/E007/2020 2
Background
1. The application by the 1 st Defendant dated 7 th April 2026 prays for one order to the effect that the Plaintiff’s suit stands dismissed. The 1 st Defendant asserts that this court in its ruling of 25 th September 2025, which reinstated the suit after a dismissal for want of prosecution, issued directions/conditions which the Plaintiff has not complied with.
2. The 1 st Defendant points out that the reinstatement of the Plaintiff’s suit was conditional. The Plaintiff was to pay thrown away costs of Kshs. 20,000/= to the 1 st Defendant in 30 days from the date of the ruling and take immediate steps towards compliance with pre-trial requirements within 30 days failing which the suit would stand dismissed.
3. In response to the application by the 1 st Defendant, the Plaintiff vide a replying affidavit sworn on 3 rd June 2026 and filed on 6 th June 2026, while acknowledging the ruling of the court, terms the application as misconceived, premature, bad in law and intended to unjustly lock out the Plaintiff from being heard on the merits of her case. She asserts that she duly paid the thrown away costs of Kshs. 20,000/= to the 1 st Defendant vide a cheque dated 7 th May 2026. She has attached a copy of the cheque marked as ‘JWR-02’.
4. The Plaintiff further avers that she has taken active steps towards compliance and prosecuting the suit. On 24 th March 2026, she did file a reply to the 1 st Defendant’s statement of defence and defence to counter claim thereby demonstrating a clear intention to prosecute the suit and comply with the directions of this court.
5. The Plaintiff pleads that it would be unjust and prejudicial to the Estate she represents if the suit was dismissed on the basis of procedural non-compliance while the dispute between the parties remain unresolved. She points out that the 1 st Defendant has also filed a counter claim relating to the ownership, title, validity of land transactions, alleged fraud, possession and dealings over the suit property(s).
Issues for determination
6. The sole and critical issue for determination in this matter is whether the court should strike out the Plaintiff’s suit for non-compliance with the conditions in the ruling of 25 th September 2025.
Analysis and determination
7. In determining the issue whether the court should strike out the Plaintiff’s suit as requested by the Applicant in the application under consideration, I am guided by the words of Ringera J (as he then was), in the case of Microsoft Corporation –versus- Mitsumi computer Garage Limited & another (200) eKLR , where he eloquently stated that;
“Rules of procedure are hand maidens and not mistresses of justice and should not be elevated to a fetish as theirs is to facilitate the administration of justice in a fair, orderly and predictable manner; not fetter or choke it and where it is evident that the Plaintiff has attempted to comply with the rule requiring verification of a plaint but he has fallen short of the prescribed standards, it would be to elevate form and procedure to a fetish to strike out the suit. Deviations from or lapses in form or procedure, which do not go to the jurisdiction of the court or prejudice the adverse party in any fundamental respect, ought not to be treated as nullifying the legal instruments thus affected and the court should rise to its higher calling to do justice by saving the proceedings in the issue.”
8. Applying the words of Ringera J, in the context of this case, the Plaintiff in my opinion has demonstrated her endeavor to comply with the orders/conditions imposed by the court; though she fell short of the timelines stipulated in the ruling of 25 th September 2025. She has paid the thrown away costs and responded to the statements of defence filed in this case and the counter-claim by the 1 st Defendant.
9. Often times, courts encounter inadvertent transgressions or unintentional omissions or commissions; by litigants. I believe, one of the intentions of the inherent power of the court is to enable it address such instances of inadvertence or unintentional omissions or commissions in the course of proceedings for the ends of justice or to prevent abuse of the process of the court.
10. In this case, I am persuaded that the Plaintiff has substantially complied with the conditions issued by the court towards the expedition of this case and its determination on the merits. All the pleadings and documents filed by the Plaintiff and subsequently by the Defendants are admitted on record. This matter shall be fixed for a pre-trial conference for further directions and issuance of a hearing date.
11. Consequently, the 1st Defendant’s application is disallowed. The court makes no orders as to costs.
It is so ordered.
Dated, Signed and Delivered at Kajiado Virtually this 4 th Day of August 2026.
M.D. MWANGI
JUDGE
In the virtual presence of:
Ms. Muthoni h/b for Ms. Asli Osman for the Plaintiff
Ms. Kioko for the 2 nd Defendant
N/A by the 1 st , 3 rd , 4 th , & 5 th Defendants
Court Assistant: Alex
M.D. MWANGI
JUDGE
RULING KAJIADO ELCC/E007/2020 2