Before this court is an application dated 30th May 2025 seeking orders that the order dated 8th May 2025 dismissing the application dated 31st December 2024 and Preliminary Objection dated 6th March 2025be set aside and the said application be reinstated in the interest of justice.
That upon setting aside and or review directions be given on the hearing of the said application dated 31st day of December 2024.
The application was supported by an affidavit of the applicant and by the grounds on its face as follows:
That on the 25th day of February 2025 the court gave direction that the petitioner to file and serve replying affidavit.
That on the 6th day of March 2025 the petitioner filed a notice of preliminary objection.
The Applicant/Objector replied to a preliminary objection dated 1 st day of April 2025.
The petitioner never replied to the application dated 31st day of December 2024.
That on the 3rd day of April 2025, the court gave directions on the preliminary objection that each party to take 14 days to file submissions.
That the objector /Applicant filed their submissions on the 7th day of May 2025 and served the same to the petitioner who did not file and serve their submission as required by the directions of the court.
That on the 8th day of May 2025 the court delivered its ruling to the effect that the P.O. and the Application are dismissed with no orders as to costs.
That on the 9th day of May 2025, we requested the chief magistrate to assist and intevene to direct for the search of the file succession cause no 195 of 2020 of which we have tried to trace all in vain.
That Kchengo Manva" deceased land parcel No Bugumbe/Masaba/304 has been taken by a stranger one Francis Nyambosa Mageto who was not a heir of the deceased leaving out the applicants/Objectors the proper heirs of the deceased (see copy attached)
That in all fairness the application in brought in good faith and with clean hands and the same be allowed.
The supporting affidavit sworn by the Applicant on 30th May 2025 reiterated the grounds raised in the face of the application as follows:
THAT on the 8th day of May 2025i and co-applicants were in court when our case called my Advocate on record was conducting the same virtual our names were called but we did not hear what the court said
That the case was coming up for mention on the 8th day of May 2025 to confirm if both parties have filed submission on the preliminary objection dated 6th day of March 2025 filed by the petitioner respondent and on that time my advocate had already filed reply to P.O. and written submissions and served upon the respondents attached and marked as exh I(a) P.O (1b) reply to P.O and (1 c) written submissions.
That on the same date we went to the civil registry and established the case has been dismissed for want of prosecution
That I have information from my advocate on record of which information I belief to be true that on the particular date 8th may 2025 he was seen virtual he addressed the Hon Court concerning my case praying for a ruling date but is like his gadget had network problem his communication to the court was not heard and the same was not intentional.
That I want to inform the Hon Court the matter in dispute is over succession cause no 195 of 2020 purported to be filed before Migori court where the family land that is LR NO Bugumbe/Masaba/304 is purported to be taken away by the respondent and the same file we have tried to trace the same cannot be traced in the CTS and even wrote a letter of complaint through our advocate on record marked exh 21etter dated 9/5/20225.
That for the interest of justice I pray the application dated 31st day of December 2024 be reinstated and the order of dismissal be set aside and the application dated 31s! day of December 2024 be heard on merit.
That if we be condemned unheard we will suffer irreparable loss and damage and we will be evicted from our own land an ancestral land and we be left landless.
That I know of my own knowledge that the respondents will not be prejudiced in any way if this application is allowed
That for the interest of justice I pray the application attached herewith be allowed and the application dated 31 5t day of December 2024 be reinstated and same be heard on merit.
That what I have stated to hereinabove is true to the best of knowledge, information and belief.
In response to the application dated 30.05.2025 the Respondent filed a Replying Affidavit sworn by the Respondent Francis Nyambosa Magebo and opposed the application for reinstatement as follows:
THAT I have read and understood the said application and it is clear that the Applicants are career litigants interested in litigating issues ad infinitum and this court ought to stop the Applicants in their tracks.
THAT the instant application does not meet the legal parameters to warrant a review.
THAT this honourable court already pronounced itself on the application date 3 1 December, 2025 by holding that it had no jurisdiction to hear the application in view of the preliminary objection dated 6th March, 2025.
THAT the Applicants are mischievously trying to relitigate the application after realizing that their statutory window to appeal has since lapsed.
THAT the only available recourse in law was for the Applicants to file an appeal before the court of appeal since this court determined it had no jurisdiction to entertain the initial application.
THAT as a matter of fact the Respondent herein replied to the Applicants' application in a response served through sagwesamson@yahoo.com on 2nd April 2025. (Attached herewith and nu71'ked as 'FNM-I ' an ünage showing the said email thread).
THAT the failure to file submissions is not fatal, this honourable court having read and appreciated the context of the preliminary objection and replying affidavit in objection to the application dated 31.12.2025 by the Applicants.
THAT while the Applicant states that he wrote a letter to the Migori Law courts, the averments fall below the required evidentiary burden of proof as the letter attached does not even display a receiving stamp from the Migori Law Couns and neither has the Applicant attached a response from the said court supporting his assertions.
THAT in any case this does not amount to new information which was not accessible to the Applicant initially, the same ground having been raised in the application dated 31.12.2024 and in any case a response from the court was something the Applicant could easily obtain while filing that initial application.
THAT consequently this application is barred in law, vexatious and an abuse of the court process and should be dismissed.
THAT what I have stated to hereinabove is tr-ue to the best of my own knowledge, information and belief sources thereof being disclosed.
The Applicants submissions are dated 21st October 2025 and are to the effect that the Applicant has shown sufficient cause and there was no delay in filing the current application. It was also submitted that no prejudice will be caused to the Respondent if the application dated 31st December 2024 is reinstated. The Applicant also urged the court to invoke its inherent powers as provided under Section 1A, 1B and 3A of the Civil Procedure Act in the interest of justice. Several authorities were relied on including Shah versus Mbogo and Another, Philip Chemwolo and Another versus Augustine Kubende and Ambalasi Versus Luvenga to support the application for reinstatement of application dated 31st December 2024.
The Respondents submissions are that the applicants filed the instant application seeking the court to review or sets-aside its orders where the court dismissed the applicant’s initial application for lack of jurisdiction and reinstates the said initial application. The Respondent filed a replying affidavit in which he objected on the basis that no application can reinstate or bestow jurisdiction upon a court once it downs its tools for want of jurisdiction. Secondly, the application did not meet the legal threshold for a court to review its orders as grounds relied on were not new material information the applicants could not access initially. Further, the evidence provided was wanting as the letter tendered as evidence had initially been submitted in the earlier application, there was no stamp on the face of the letter to confirm it was received by the court and there was no confirmation letter from the court indicating that indeed there was no succession cause that was ever filed.
The Respondent submitted further that, the Applicants are vexatious clients only interested in relitigating issues without ever intending to stop having litigated over this suit property from the 80’s with the Respondent’s father through to ELC Appeal No. 9 of 2018 Nsato Maroa vs Magebo Sabure where the Applicant herein and Appellant in the matter lost to Magebo Sabure, the father of the Respondent herein. Currently, the Respondent herein has filed Migori ELC E013 of 2024 Francis Nyambosa vs Nsato Maroa seeking to evict the Applicant in this matter from this suit property.
It was also submitted that it is trite law that jurisdiction is everything. In Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others [2012] eKLR the Supreme court of Kenya at paragraph 68 stated that a court’s jurisdiction flows from the constitution or legislation or both.
Thus, a court cannot abrogate itself jurisdiction where there is none. In the initial application, the Respondent herein challenged the jurisdiction of this court to entertain the application that the applicant herein seeks to reinstate on the grounds that the application offended Section 23 of the Magistrates Court Act, 2015 which conferred jurisdiction upon magistrate courts to entertain applications for revocation of grant. It has to be remembered that the Applicant herein had initially invoked the powers of the High Court under the Law of Succession Act which gave powers to the high court only to entertain summons for revocation of grant. This section was repealed by Section 23 of the Magistrates Court Act, 2015 and it is this section which stripped this court of the jurisdiction to entertain the miscellaneous application initially filed seeking to revoke the grant issued to the Respondent herein.
The Respondent questioned whether an application for review can now confer jurisdiction upon a court where legislation clearly didn’t confer such jurisdiction on the court as is in case herein. It was submitted that once the court downs its tools the court becomes functus officio and only an appellate court re-analyse the law and set aside the ruling of no jurisdiction. It cannot be the same court sitting to review its own decision as the Applicants are purporting to do in this application. For context, reviews can be done on grounds of an apparent mistake or error on the face of the record of the court and discovery of new material of facts which was not within reach of the applicant at the time the court was making the decision. Which of these grounds then are the Applicants herein invoking to now review its decision and bestow jurisdiction upon this court to entertain the initial application?
The Respondent submitted that the applicant has not even cited any of these grounds and this court cannot aid the indolent. Even if it were to be assumed that the letter attached as evidence was the ‘new material information’, this application would still fail because the said letter had been tendered in the initial application. Further, there is no evidence that the Migori Law Courts ever received the said letter neither is there confirmation from the court that the original succession cause is non-existent. On what basis then would this court review its initial orders and confer jurisdiction upon itself? In any case, the initial preliminary objection equally challenged the jurisdiction of this court to hear a matter on land issues disguised as a succession dispute as the same would contravene Article 162(2) of the Constitution of Kenya which confers such jurisdiction on the Environment and Land Court which is now seized with Migori ELC E013 Oof 2024 between the parties herein.
The Respondent urged the court to find that the Applicant is a vexatious litigant as he has filed numerous applications to relitigate over issues even when they clearly know they have no legal basis to file such cases and applications such as the instant one. The court was called upon to dismiss this application with costs to the Respondent.
ANALYSIS AND DETERMINATION
The issue for determination is whether the Applicants have satisfied the legal threshold for setting aside, reviewing, and/or reinstating the application dated 31st December 2024 which was dismissed together with the Preliminary Objection on 8th May 2025.
The application is premised on the grounds that the Applicants were not afforded an opportunity to prosecute the application on merits; that counsel experienced technical challenges during the virtual proceedings; that the matter was listed for mention rather than dismissal; that the dispute concerns ancestral land; and that the court should invoke its inherent jurisdiction in the interests of justice.
The application dated 31st December 2024 was dismissed together with the Preliminary Objection raised by the Respondent for want of prosecution and non attendance by the parties to prosecute application and objection which were pending in court for long without any action being taken. It is therefore not true as submitted by the Respondent that the preliminary objection was determined.
The Respondent opposed the application for reinstatement for reasons that the dispute over the suit property is already the subject of proceedings before the Environment and Land Court having been litigated in Judicial Review proceedings where the court found that the award by the Land Disputes Tribunal was a nullity and in Migori ELC Case No 9 of 2018 where the Applicants appeal was also dismissed. Currently the Applicant is litigating over the same subject suit in ELC NO E013 of 2024.
An application for setting aside orders and reinstatement of a suit or application is generally grounded on the court's discretionary powers under the Civil Procedure Act, Civil Procedure Rules, and the court's inherent jurisdiction to ensure that justice is done.
The common grounds for setting aside orders are lack of service or improper service, sufficient cause such as where a party demonstrates that failure to attend court was occasioned by illness, mistake of counsel, mistake in diarizing dates, inadvertence or excusable error and circumstances beyond the party's control.
Where the mistake is made by the Advocate, a litigant should not be unduly punished for the genuine mistake of counsel, especially where no prejudice will be occasioned to the other side.
Where material facts emerge that were not available despite due diligence when the orders were made then the court can exercise discretion and set aside orders and reinstate an application or suit.
If the applicant demonstrates that the orders were procured through fraud, misrepresentation, non-disclosure of material facts and concealment of relevant information an order for reinstatement may be made.
Article 50 of the Constitution also guarantees every person the right to be heard. Courts are generally reluctant to shut out litigants without affording them an opportunity to present their case.
The court may set aside orders where doing so would serve the ends of justice and enable substantive determination of the dispute.
Where a suit has been dismissed for want of prosecution, the applicant must generally show sufficient cause for delay, and explain why the suit became inactive; why steps were not taken earlier and whether the delay was excusable.
The Applicant must also show promptness in bringing the application and such an application should be filed without unreasonable delay after dismissal.
The court may also consider whether the suit raises triable issues deserving determination on merit.
The applicant should equally demonstrate that reinstatement will not occasion irreparable prejudice to the Respondent
Where reinstatement of applications dismissed for non-attendance the Applicant should show a satisfactory explanation for non-attendance. The Applicant should also show that the omission was not deliberate; that the application raises arguable issues; that reinstatement will not prejudice the opposing party and that the application for reinstatement was made promptly.
The relevant factors commonly considered by the court are the reason for non-attendance or default; length of delay; whether the delay is excusable; conduct of the parties; whether the applicant acted in good faith; chances of success of the suit or application; prejudice likely to be suffered by either party and the need to determine disputes on their merits.
The overarching consideration is whether reinstatement will advance the constitutional objective of determining disputes on their merits while balancing the need for expeditious disposal of cases and avoiding prejudice to the opposing party.
This court has considered the application and appreciates that orders dismissing the application dated 31st December 2024 was due to the Advocates mistake and failure by the Applicant and the Respondent to attend court which is excusable and that the current application was filed promptly but takes judicial notice of the uncontested averment that there is pending litigation before the Environment and Land Court, namely Migori ELC E013 of 2024, involving the same parcel of land and substantially the same parties. The Applicants' complaint is fundamentally directed at ownership, occupation, and entitlement to land parcel Bugumbe/Masaba/304. Such issues fall squarely within the jurisdiction conferred upon the Environment and Land Court under Article 162(2)(b) of the Constitution and the Environment and Land Court Act.
The existence of the pending ELC proceedings reinforces the need for judicial restraint and avoidance of parallel litigation over the same subject matter. Courts must guard against multiplicity of suits and the risk of conflicting determinations.
Although the court appreciates the Applicants' concern that they may lose occupation of land they consider ancestral property, sympathetic considerations cannot override jurisdictional limitations imposed by law.
In the end, the Applicants have failed to demonstrate to the satisfaction of this court that they deserve issuance of orders setting aside and reinstatement of the application dated 31st December 2024. The Notice of Motion dated 30th May 2025 is hereby dismissed with each party bearing their own costs of the application. The parties shall pursue their respective claims in the appropriate forum, including the pending proceedings before the Environment and Land Court.
It is so ordered.
DATED, SIGNED AND DELIVERED AT MIGORI THIS 25th DAY OF JUNE, 2026.
That upon setting aside and or review directions be given on the hearing of the said application dated 31st day of December 2024.
The application was supported by an affidavit of the applicant and by the grounds on its face as follows:
That on the 25th day of February 2025 the court gave direction that the petitioner to file and serve replying affidavit.
That on the 6th day of March 2025 the petitioner filed a notice of preliminary objection.
The Applicant/Objector replied to a preliminary objection dated 1 st day of April 2025.
The petitioner never replied to the application dated 31st day of December 2024.
That on the 3rd day of April 2025, the court gave directions on the preliminary objection that each party to take 14 days to file submissions.
That the objector /Applicant filed their submissions on the 7th day of May 2025 and served the same to the petitioner who did not file and serve their submission as required by the directions of the court.
That on the 8th day of May 2025 the court delivered its ruling to the effect that the P.O. and the Application are dismissed with no orders as to costs.
That on the 9th day of May 2025, we requested the chief magistrate to assist and intevene to direct for the search of the file succession cause no 195 of 2020 of which we have tried to trace all in vain.
That Kchengo Manva" deceased land parcel No Bugumbe/Masaba/304 has been taken by a stranger one Francis Nyambosa Mageto who was not a heir of the deceased leaving out the applicants/Objectors the proper heirs of the deceased (see copy attached)
That in all fairness the application in brought in good faith and with clean hands and the same be allowed.
The supporting affidavit sworn by the Applicant on 30th May 2025 reiterated the grounds raised in the face of the application as follows:
THAT on the 8th day of May 2025i and co-applicants were in court when our case called my Advocate on record was conducting the same virtual our names were called but we did not hear what the court said
That the case was coming up for mention on the 8th day of May 2025 to confirm if both parties have filed submission on the preliminary objection dated 6th day of March 2025 filed by the petitioner respondent and on that time my advocate had already filed reply to P.O. and written submissions and served upon the respondents attached and marked as exh I(a) P.O (1b) reply to P.O and (1 c) written submissions.
That on the same date we went to the civil registry and established the case has been dismissed for want of prosecution
That I have information from my advocate on record of which information I belief to be true that on the particular date 8th may 2025 he was seen virtual he addressed the Hon Court concerning my case praying for a ruling date but is like his gadget had network problem his communication to the court was not heard and the same was not intentional.
That I want to inform the Hon Court the matter in dispute is over succession cause no 195 of 2020 purported to be filed before Migori court where the family land that is LR NO Bugumbe/Masaba/304 is purported to be taken away by the respondent and the same file we have tried to trace the same cannot be traced in the CTS and even wrote a letter of complaint through our advocate on record marked exh 21etter dated 9/5/20225.
That for the interest of justice I pray the application dated 31st day of December 2024 be reinstated and the order of dismissal be set aside and the application dated 31s! day of December 2024 be heard on merit.
That if we be condemned unheard we will suffer irreparable loss and damage and we will be evicted from our own land an ancestral land and we be left landless.
That I know of my own knowledge that the respondents will not be prejudiced in any way if this application is allowed
That for the interest of justice I pray the application attached herewith be allowed and the application dated 31 5t day of December 2024 be reinstated and same be heard on merit.
That what I have stated to hereinabove is true to the best of knowledge, information and belief.
In response to the application dated 30.05.2025 the Respondent filed a Replying Affidavit sworn by the Respondent Francis Nyambosa Magebo and opposed the application for reinstatement as follows:
THAT I have read and understood the said application and it is clear that the Applicants are career litigants interested in litigating issues ad infinitum and this court ought to stop the Applicants in their tracks.
THAT the instant application does not meet the legal parameters to warrant a review.
THAT this honourable court already pronounced itself on the application date 3 1 December, 2025 by holding that it had no jurisdiction to hear the application in view of the preliminary objection dated 6th March, 2025.
THAT the Applicants are mischievously trying to relitigate the application after realizing that their statutory window to appeal has since lapsed.
THAT the only available recourse in law was for the Applicants to file an appeal before the court of appeal since this court determined it had no jurisdiction to entertain the initial application.
THAT as a matter of fact the Respondent herein replied to the Applicants' application in a response served through sagwesamson@yahoo.com on 2nd April 2025. (Attached herewith and nu71'ked as 'FNM-I ' an ünage showing the said email thread).
THAT the failure to file submissions is not fatal, this honourable court having read and appreciated the context of the preliminary objection and replying affidavit in objection to the application dated 31.12.2025 by the Applicants.
THAT while the Applicant states that he wrote a letter to the Migori Law courts, the averments fall below the required evidentiary burden of proof as the letter attached does not even display a receiving stamp from the Migori Law Couns and neither has the Applicant attached a response from the said court supporting his assertions.
THAT in any case this does not amount to new information which was not accessible to the Applicant initially, the same ground having been raised in the application dated 31.12.2024 and in any case a response from the court was something the Applicant could easily obtain while filing that initial application.
THAT consequently this application is barred in law, vexatious and an abuse of the court process and should be dismissed.
THAT what I have stated to hereinabove is tr-ue to the best of my own knowledge, information and belief sources thereof being disclosed.
The Applicants submissions are dated 21st October 2025 and are to the effect that the Applicant has shown sufficient cause and there was no delay in filing the current application. It was also submitted that no prejudice will be caused to the Respondent if the application dated 31st December 2024 is reinstated. The Applicant also urged the court to invoke its inherent powers as provided under Section 1A, 1B and 3A of the Civil Procedure Act in the interest of justice. Several authorities were relied on including Shah versus Mbogo and Another, Philip Chemwolo and Another versus Augustine Kubende and Ambalasi Versus Luvenga to support the application for reinstatement of application dated 31st December 2024.
The Respondents submissions are that the applicants filed the instant application seeking the court to review or sets-aside its orders where the court dismissed the applicant’s initial application for lack of jurisdiction and reinstates the said initial application. The Respondent filed a replying affidavit in which he objected on the basis that no application can reinstate or bestow jurisdiction upon a court once it downs its tools for want of jurisdiction. Secondly, the application did not meet the legal threshold for a court to review its orders as grounds relied on were not new material information the applicants could not access initially. Further, the evidence provided was wanting as the letter tendered as evidence had initially been submitted in the earlier application, there was no stamp on the face of the letter to confirm it was received by the court and there was no confirmation letter from the court indicating that indeed there was no succession cause that was ever filed.
The Respondent submitted further that, the Applicants are vexatious clients only interested in relitigating issues without ever intending to stop having litigated over this suit property from the 80’s with the Respondent’s father through to ELC Appeal No. 9 of 2018 Nsato Maroa vs Magebo Sabure where the Applicant herein and Appellant in the matter lost to Magebo Sabure, the father of the Respondent herein. Currently, the Respondent herein has filed Migori ELC E013 of 2024 Francis Nyambosa vs Nsato Maroa seeking to evict the Applicant in this matter from this suit property.
It was also submitted that it is trite law that jurisdiction is everything. In Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others [2012] eKLR the Supreme court of Kenya at paragraph 68 stated that a court’s jurisdiction flows from the constitution or legislation or both.
Thus, a court cannot abrogate itself jurisdiction where there is none. In the initial application, the Respondent herein challenged the jurisdiction of this court to entertain the application that the applicant herein seeks to reinstate on the grounds that the application offended Section 23 of the Magistrates Court Act, 2015 which conferred jurisdiction upon magistrate courts to entertain applications for revocation of grant. It has to be remembered that the Applicant herein had initially invoked the powers of the High Court under the Law of Succession Act which gave powers to the high court only to entertain summons for revocation of grant. This section was repealed by Section 23 of the Magistrates Court Act, 2015 and it is this section which stripped this court of the jurisdiction to entertain the miscellaneous application initially filed seeking to revoke the grant issued to the Respondent herein.
The Respondent questioned whether an application for review can now confer jurisdiction upon a court where legislation clearly didn’t confer such jurisdiction on the court as is in case herein. It was submitted that once the court downs its tools the court becomes functus officio and only an appellate court re-analyse the law and set aside the ruling of no jurisdiction. It cannot be the same court sitting to review its own decision as the Applicants are purporting to do in this application. For context, reviews can be done on grounds of an apparent mistake or error on the face of the record of the court and discovery of new material of facts which was not within reach of the applicant at the time the court was making the decision. Which of these grounds then are the Applicants herein invoking to now review its decision and bestow jurisdiction upon this court to entertain the initial application?
The Respondent submitted that the applicant has not even cited any of these grounds and this court cannot aid the indolent. Even if it were to be assumed that the letter attached as evidence was the ‘new material information’, this application would still fail because the said letter had been tendered in the initial application. Further, there is no evidence that the Migori Law Courts ever received the said letter neither is there confirmation from the court that the original succession cause is non-existent. On what basis then would this court review its initial orders and confer jurisdiction upon itself? In any case, the initial preliminary objection equally challenged the jurisdiction of this court to hear a matter on land issues disguised as a succession dispute as the same would contravene Article 162(2) of the Constitution of Kenya which confers such jurisdiction on the Environment and Land Court which is now seized with Migori ELC E013 Oof 2024 between the parties herein.
The Respondent urged the court to find that the Applicant is a vexatious litigant as he has filed numerous applications to relitigate over issues even when they clearly know they have no legal basis to file such cases and applications such as the instant one. The court was called upon to dismiss this application with costs to the Respondent.
ANALYSIS AND DETERMINATION
The issue for determination is whether the Applicants have satisfied the legal threshold for setting aside, reviewing, and/or reinstating the application dated 31st December 2024 which was dismissed together with the Preliminary Objection on 8th May 2025.
The application is premised on the grounds that the Applicants were not afforded an opportunity to prosecute the application on merits; that counsel experienced technical challenges during the virtual proceedings; that the matter was listed for mention rather than dismissal; that the dispute concerns ancestral land; and that the court should invoke its inherent jurisdiction in the interests of justice.
The application dated 31st December 2024 was dismissed together with the Preliminary Objection raised by the Respondent for want of prosecution and non attendance by the parties to prosecute application and objection which were pending in court for long without any action being taken. It is therefore not true as submitted by the Respondent that the preliminary objection was determined.
The Respondent opposed the application for reinstatement for reasons that the dispute over the suit property is already the subject of proceedings before the Environment and Land Court having been litigated in Judicial Review proceedings where the court found that the award by the Land Disputes Tribunal was a nullity and in Migori ELC Case No 9 of 2018 where the Applicants appeal was also dismissed. Currently the Applicant is litigating over the same subject suit in ELC NO E013 of 2024.
An application for setting aside orders and reinstatement of a suit or application is generally grounded on the court's discretionary powers under the Civil Procedure Act, Civil Procedure Rules, and the court's inherent jurisdiction to ensure that justice is done.
The common grounds for setting aside orders are lack of service or improper service, sufficient cause such as where a party demonstrates that failure to attend court was occasioned by illness, mistake of counsel, mistake in diarizing dates, inadvertence or excusable error and circumstances beyond the party's control.
Where the mistake is made by the Advocate, a litigant should not be unduly punished for the genuine mistake of counsel, especially where no prejudice will be occasioned to the other side.
Where material facts emerge that were not available despite due diligence when the orders were made then the court can exercise discretion and set aside orders and reinstate an application or suit.
If the applicant demonstrates that the orders were procured through fraud, misrepresentation, non-disclosure of material facts and concealment of relevant information an order for reinstatement may be made.
Article 50 of the Constitution also guarantees every person the right to be heard. Courts are generally reluctant to shut out litigants without affording them an opportunity to present their case.
The court may set aside orders where doing so would serve the ends of justice and enable substantive determination of the dispute.
Where a suit has been dismissed for want of prosecution, the applicant must generally show sufficient cause for delay, and explain why the suit became inactive; why steps were not taken earlier and whether the delay was excusable.
The Applicant must also show promptness in bringing the application and such an application should be filed without unreasonable delay after dismissal.
The court may also consider whether the suit raises triable issues deserving determination on merit.
The applicant should equally demonstrate that reinstatement will not occasion irreparable prejudice to the Respondent
Where reinstatement of applications dismissed for non-attendance the Applicant should show a satisfactory explanation for non-attendance. The Applicant should also show that the omission was not deliberate; that the application raises arguable issues; that reinstatement will not prejudice the opposing party and that the application for reinstatement was made promptly.
The relevant factors commonly considered by the court are the reason for non-attendance or default; length of delay; whether the delay is excusable; conduct of the parties; whether the applicant acted in good faith; chances of success of the suit or application; prejudice likely to be suffered by either party and the need to determine disputes on their merits.
The overarching consideration is whether reinstatement will advance the constitutional objective of determining disputes on their merits while balancing the need for expeditious disposal of cases and avoiding prejudice to the opposing party.
This court has considered the application and appreciates that orders dismissing the application dated 31st December 2024 was due to the Advocates mistake and failure by the Applicant and the Respondent to attend court which is excusable and that the current application was filed promptly but takes judicial notice of the uncontested averment that there is pending litigation before the Environment and Land Court, namely Migori ELC E013 of 2024, involving the same parcel of land and substantially the same parties. The Applicants' complaint is fundamentally directed at ownership, occupation, and entitlement to land parcel Bugumbe/Masaba/304. Such issues fall squarely within the jurisdiction conferred upon the Environment and Land Court under Article 162(2)(b) of the Constitution and the Environment and Land Court Act.
The existence of the pending ELC proceedings reinforces the need for judicial restraint and avoidance of parallel litigation over the same subject matter. Courts must guard against multiplicity of suits and the risk of conflicting determinations.
Although the court appreciates the Applicants' concern that they may lose occupation of land they consider ancestral property, sympathetic considerations cannot override jurisdictional limitations imposed by law.
In the end, the Applicants have failed to demonstrate to the satisfaction of this court that they deserve issuance of orders setting aside and reinstatement of the application dated 31st December 2024. The Notice of Motion dated 30th May 2025 is hereby dismissed with each party bearing their own costs of the application. The parties shall pursue their respective claims in the appropriate forum, including the pending proceedings before the Environment and Land Court.
It is so ordered.
DATED, SIGNED AND DELIVERED AT MIGORI THIS 25th DAY OF JUNE, 2026.