1. Article 10 (2) of the Constitution of Kenya 2010 anchors the principles of equity.
2. Bearing in mind the said principles, it is abundantly clear that the applicant, Mark Talian Trengech through T. C Chumba and Company Advocates commenced an application by way of Notice of Motion dated 23rd may 2024 for the following orders;
a) That the Restriction registered against the parcel of land known as Nandi/Kipkaren Salient/59 Measuring 20.5 Ha (The suit land) on 3rd day of February, 2021 be removed.
b) That costs of this application be provided for.
3. The foundational basis of the application is the supporting affidavit of fourteen paragraphs sworn on even date with copies of documents namely list of members and a certificate of official search annexed thereto and eleven grounds set out on its face. The applicant laments, inter alia, that he is the absolute proprietor of the suit land having purchased the same from Salient Settlement in 1963. That he sold 44 acres to individuals and remained with 6.675 acres. That on 16th of December 2021, he made an application for the sub-division of the suit land. That he desires to have the said restriction removed in order to enable him complete the sub-division process and registration of mutation to the suit land thus, provoking the application.
4. The application is set for hearing today. Mr Kwame learned counsel for the 1st and 2nd respondents has implored the court to dismiss the application since there is no appearance for the applicant who is aware of the matter. Indeed, this date was taken on 23rd March 2023 in the presence of J C Chumba learned counsel for the applicant.
5. There is no reason presented before this court to demonstrate why the applicant’s counsel has missed the hearing fixed for today as noted by the Court of Appeal in the case of Philip Muchiri Mugo vs Mbeu Kithakwa {2013} KECA 80 (KLR).
6. Order 12 Rule 3 of the Civil Procedure Rules 2010 provides for dismissal in such cases as the respondents do not admit the claim.
7. Moreover, the application was filed more than fifteen months ago and Article 159 (2) (b) of the Constitution of Kenya 2010 reads;
Justice shall not be delayed.
8. In the circumstances, equity aids only the vigilant under Articles 10 (1) and 159 (2) (b) (supra) for the ends of justice and I proceed the endorse the request by learned counsel for the respondents.
9. Accordingly, the application dated 23rd May 2024 is hereby dismissed under Order 12 Rule 3 of the Civil Procedure Rules 2010 with no orders as to costs.
10. It is so ordered.
DATED and DELIVERED at KAPSABET this 10TH day of JUNE 2026
G M A ONGONDO
JUDGE
PRESENT;
Mr Kwame learned counsel for the 1st and 2nd respondents
Mr Walter Kipkorir, Court Assistant