1. Before this Court is the Notice of Motion dated 28th May 2026 filed by the Interested Party seeking the following orders:
a) That the Applicant's suit be dismissed with costs for non-compliance with the Court's directions issued on 3rd February 2026, 6th March 2026 and 8th May 2026.
b) That the Judicial Review proceedings be dismissed for want of prosecution, non-compliance with Court orders and for lack of material evidence.
c) That the Applicant be compelled to pay the Interested Party Kshs.676,000 together with interest at court rates from 2018 until payment in full being:
i. Legal fees – Kshs.290,000;
ii. Crop damage claim – Kshs.336,000;
iii. Logistics, transport and accommodation – Kshs.50,000.
d. Costs of the application and the entire suit.
The Application
2. The application is supported by the affidavit of the Interested Party. He depones that on 3rd February 2026, this Court directed counsel for the Applicant, who had recently come on record, to serve all pleadings upon the Interested Party within ten (10) days. According to him, the directions were never complied with despite a reminder dated 26th February 2026 requesting the pleadings.
3. He further states that on 6th March 2026 counsel for the Applicant failed to attend court and there was no evidence of service of pleadings. Consequently, the Court issued a Notice to Show Cause why the matter should not be dismissed for non-compliance and fixed the matter for 8th May 2026.
4. According to the Interested Party, counsel for the Applicant again failed to attend court on 8th May 2026. He contends that the Applicant has persistently disobeyed court orders, failed to prosecute the matter and abused the court process.
5. The Interested Party further depones that he has never been in contempt of court; that the crop assessment relied upon by the Applicant relates to different parcels of land; that the Judicial Review application lacks material evidence linking him to the alleged destruction of crops; and that he has incurred expenses amounting to Kshs.676,000 which he seeks to recover from the Applicant.
Response
6. The Applicant opposed the application through a Replying Affidavit sworn on 30th June 2026.
7. He depones that these Judicial Review proceedings were instituted before the Environment and Land Court at Migori on 25th September 2018 and leave to commence Judicial Review proceedings was granted on 27th September 2018 together with an order of stay.
8. The Applicant states that the Interested Party had throughout participated in the proceedings through the firm of Kisia & Company Advocates before later appointing the firm of Nyakwamba & Company Advocates after the matter was transferred to Homa Bay.
9. According to the Applicant, the Interested Party has all along been aware of these proceedings and had filed responses through his previous advocates. He therefore contends that the allegation that pleadings were never served is not truthful.
10. The Applicant further states that the Interested Party had previously been cited for contempt of court and ordered to compensate him for crops allegedly destroyed. He annexed copies of proceedings relating to contempt, including a Notice to Show Cause and an application seeking to set aside the contempt orders.
11. He therefore contends that the present application is brought in bad faith and is intended to delay determination of the substantive Judicial Review proceedings.
Issues for Determination
12. Having considered the application, the response and the record, the issues arising for determination are:
a) Whether the Judicial Review proceedings should be dismissed for want of prosecution and non-compliance with court directions.
b) Whether the Interested Party is entitled to payment of Kshs.676,000 as claimed.
c) Who should bear the costs.
Analysis
Whether the Judicial Review proceedings should be dismissed
13. The power of the Court to dismiss proceedings for want of prosecution is discretionary and must be exercised judicially.
14. The principles governing dismissal for want of prosecution were authoritatively set out in Ivita v Kyumbu [1984] KLR 441 , where Chesoni J. held:
"The test is whether the delay is prolonged and inexcusable, and, if it is, can justice be done despite the delay. Justice is justice to both the plaintiff and the defendant."
15. Similarly, in Utalii Transport Company Limited & 3 Others v NIC Bank Limited & Another [2014] eKLR , Gikonyo J. observed that dismissal for want of prosecution is a draconian remedy which should only be invoked where delay is prolonged, inexcusable and causes prejudice to the opposite party.
16. Order 17 Rule 2 of the Civil Procedure Rules empowers the Court to dismiss a suit where no step has been taken for one year. Although Judicial Review proceedings are governed principally by Order 53 of the Civil Procedure Rules and the Fair Administrative Action Act, courts have consistently held that they possess inherent jurisdiction to dismiss proceedings where a litigant deliberately fails to prosecute them or disobeys court directions.
17. The Interested Party's complaint is not merely delay but failure by the Applicant to comply with directions issued on 3rd February 2026 requiring service of pleadings upon the advocates who had recently come on record.
18. The Court record indeed shows that directions were issued requiring service. It is equally apparent that the Court later noted absence of proof of such service and fixed a Notice to Show Cause.
19. However, the Applicant has explained that the Interested Party had actively participated in these proceedings since 2018 through previous advocates who filed responses before the matter was transferred to Homa Bay. That assertion has not been disputed.
20. More importantly, there is no evidence that the Interested Party has been prejudiced in understanding or defending the proceedings. His present application demonstrates detailed knowledge of the pleadings and history of the suit dating back to 2018.
21. While the Applicant ought to have complied with the Court's directions by serving the new advocates with copies of the pleadings and filing an affidavit of service, such omission, though regrettable, does not automatically justify the drastic sanction of dismissing proceedings that have been pending for several years.
22. The Court is enjoined under Article 159(2)(d) of the Constitution to administer justice without undue regard to procedural technicalities while balancing that principle with the need for orderly litigation.
23. In Philip Chemwolo & Another v Augustine Kubende [1982-1988] KAR 103 , Apaloo JA stated:
"Blunders will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case heard on the merits."
24. Likewise, in Belinda Murai & Others v Amos Wainaina [1979] eKLR , Madan J.A. observed that:
"A mistake is a mistake. It is no less a mistake because it is an unfortunate slip."
25. The Court is not persuaded that the Applicant's omission was deliberate or intended to obstruct justice. The ends of justice would be better served by directing compliance rather than terminating the proceedings altogether.
Whether the Interested Party is entitled to Kshs.676,000
26. The Interested Party seeks Kshs.676,000 allegedly comprising legal fees, crop damage and logistical expenses.
27. With respect, those prayers cannot be granted within the present application.
28. First, no legal basis has been demonstrated entitling the Court to award special damages within an interlocutory application in Judicial Review proceedings.
29. Secondly, special damages must not only be specifically pleaded but must also be strictly proved.
30. The Court of Appeal in Hahn v Singh [1985] KLR 716 held that special damages must be specifically pleaded and strictly proved.
31. Similarly, in Capital Fish Kenya Limited v Kenya Power & Lighting Company Limited [2016] eKLR , the Court of Appeal reaffirmed that special damages require strict proof through credible evidence.
32. The Interested Party has merely listed figures without producing documentary evidence proving payment of legal fees, transport expenses or crop losses.
33. Moreover, questions relating to alleged crop damage or compensation fall outside the scope of this interlocutory application and cannot properly be determined without pleadings and evidence tested through the normal adjudicative process.
34. Consequently, the prayer seeking payment of Kshs.676,000 is devoid of evidential and legal foundation and must fail.
Disposition
35. In the end, the Court finds that although there was failure to strictly comply with the directions on service, the circumstances of this case do not warrant the dismissal of proceedings that have been pending since 2018. The omission is capable of being remedied without occasioning prejudice to the Interested Party.
36. Consequently, the Notice of Motion dated 28th May 2026 is partially unsuccessful and is disposed of in the following terms:
a) The prayer seeking dismissal of the Judicial Review proceedings for want of prosecution and non-compliance with court directions is declined.
b) The prayer seeking payment by the Applicant of Kshs.676,000 together with interest is dismissed .
c) The Applicant shall, within fourteen (14) days from the date hereof, serve upon the Interested Party's advocates all pleadings and documents on record and thereafter file a proper affidavit of service.
d) In default of compliance within the stipulated period, the Interested Party shall be at liberty to move the Court for appropriate orders, including dismissal of the proceedings.
e) Costs of this application shall abide by the outcome of the substantive Judicial Review proceedings.
f) Preliminary Objection dismissed with no order as to cost.
g) Mention on the 24 th September 2026.
h) It is so ordered.
Ruling dated and delivered at Homa Bay via Teams online platform this 31 st day of July 2026.
In the Presence of;
1. Osoro for the ex-parte applicant -Present
2. Jabeya for Ms. Murage for Interested Party -Present
3. Court Assistant, Ms Awino.
JUSTICE J.W WANYONYI, JUDGE
31/7/2026
2 | Page HOMA BAY ELC JR 1 OF 2022 – RULING
a) That the Applicant's suit be dismissed with costs for non-compliance with the Court's directions issued on 3rd February 2026, 6th March 2026 and 8th May 2026.
b) That the Judicial Review proceedings be dismissed for want of prosecution, non-compliance with Court orders and for lack of material evidence.
c) That the Applicant be compelled to pay the Interested Party Kshs.676,000 together with interest at court rates from 2018 until payment in full being:
i. Legal fees – Kshs.290,000;
ii. Crop damage claim – Kshs.336,000;
iii. Logistics, transport and accommodation – Kshs.50,000.
d. Costs of the application and the entire suit.
The Application
2. The application is supported by the affidavit of the Interested Party. He depones that on 3rd February 2026, this Court directed counsel for the Applicant, who had recently come on record, to serve all pleadings upon the Interested Party within ten (10) days. According to him, the directions were never complied with despite a reminder dated 26th February 2026 requesting the pleadings.
3. He further states that on 6th March 2026 counsel for the Applicant failed to attend court and there was no evidence of service of pleadings. Consequently, the Court issued a Notice to Show Cause why the matter should not be dismissed for non-compliance and fixed the matter for 8th May 2026.
4. According to the Interested Party, counsel for the Applicant again failed to attend court on 8th May 2026. He contends that the Applicant has persistently disobeyed court orders, failed to prosecute the matter and abused the court process.
5. The Interested Party further depones that he has never been in contempt of court; that the crop assessment relied upon by the Applicant relates to different parcels of land; that the Judicial Review application lacks material evidence linking him to the alleged destruction of crops; and that he has incurred expenses amounting to Kshs.676,000 which he seeks to recover from the Applicant.
Response
6. The Applicant opposed the application through a Replying Affidavit sworn on 30th June 2026.
7. He depones that these Judicial Review proceedings were instituted before the Environment and Land Court at Migori on 25th September 2018 and leave to commence Judicial Review proceedings was granted on 27th September 2018 together with an order of stay.
8. The Applicant states that the Interested Party had throughout participated in the proceedings through the firm of Kisia & Company Advocates before later appointing the firm of Nyakwamba & Company Advocates after the matter was transferred to Homa Bay.
9. According to the Applicant, the Interested Party has all along been aware of these proceedings and had filed responses through his previous advocates. He therefore contends that the allegation that pleadings were never served is not truthful.
10. The Applicant further states that the Interested Party had previously been cited for contempt of court and ordered to compensate him for crops allegedly destroyed. He annexed copies of proceedings relating to contempt, including a Notice to Show Cause and an application seeking to set aside the contempt orders.
11. He therefore contends that the present application is brought in bad faith and is intended to delay determination of the substantive Judicial Review proceedings.
Issues for Determination
12. Having considered the application, the response and the record, the issues arising for determination are:
a) Whether the Judicial Review proceedings should be dismissed for want of prosecution and non-compliance with court directions.
b) Whether the Interested Party is entitled to payment of Kshs.676,000 as claimed.
c) Who should bear the costs.
Analysis
Whether the Judicial Review proceedings should be dismissed
13. The power of the Court to dismiss proceedings for want of prosecution is discretionary and must be exercised judicially.
14. The principles governing dismissal for want of prosecution were authoritatively set out in Ivita v Kyumbu [1984] KLR 441 , where Chesoni J. held:
"The test is whether the delay is prolonged and inexcusable, and, if it is, can justice be done despite the delay. Justice is justice to both the plaintiff and the defendant."
15. Similarly, in Utalii Transport Company Limited & 3 Others v NIC Bank Limited & Another [2014] eKLR , Gikonyo J. observed that dismissal for want of prosecution is a draconian remedy which should only be invoked where delay is prolonged, inexcusable and causes prejudice to the opposite party.
16. Order 17 Rule 2 of the Civil Procedure Rules empowers the Court to dismiss a suit where no step has been taken for one year. Although Judicial Review proceedings are governed principally by Order 53 of the Civil Procedure Rules and the Fair Administrative Action Act, courts have consistently held that they possess inherent jurisdiction to dismiss proceedings where a litigant deliberately fails to prosecute them or disobeys court directions.
17. The Interested Party's complaint is not merely delay but failure by the Applicant to comply with directions issued on 3rd February 2026 requiring service of pleadings upon the advocates who had recently come on record.
18. The Court record indeed shows that directions were issued requiring service. It is equally apparent that the Court later noted absence of proof of such service and fixed a Notice to Show Cause.
19. However, the Applicant has explained that the Interested Party had actively participated in these proceedings since 2018 through previous advocates who filed responses before the matter was transferred to Homa Bay. That assertion has not been disputed.
20. More importantly, there is no evidence that the Interested Party has been prejudiced in understanding or defending the proceedings. His present application demonstrates detailed knowledge of the pleadings and history of the suit dating back to 2018.
21. While the Applicant ought to have complied with the Court's directions by serving the new advocates with copies of the pleadings and filing an affidavit of service, such omission, though regrettable, does not automatically justify the drastic sanction of dismissing proceedings that have been pending for several years.
22. The Court is enjoined under Article 159(2)(d) of the Constitution to administer justice without undue regard to procedural technicalities while balancing that principle with the need for orderly litigation.
23. In Philip Chemwolo & Another v Augustine Kubende [1982-1988] KAR 103 , Apaloo JA stated:
"Blunders will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case heard on the merits."
24. Likewise, in Belinda Murai & Others v Amos Wainaina [1979] eKLR , Madan J.A. observed that:
"A mistake is a mistake. It is no less a mistake because it is an unfortunate slip."
25. The Court is not persuaded that the Applicant's omission was deliberate or intended to obstruct justice. The ends of justice would be better served by directing compliance rather than terminating the proceedings altogether.
Whether the Interested Party is entitled to Kshs.676,000
26. The Interested Party seeks Kshs.676,000 allegedly comprising legal fees, crop damage and logistical expenses.
27. With respect, those prayers cannot be granted within the present application.
28. First, no legal basis has been demonstrated entitling the Court to award special damages within an interlocutory application in Judicial Review proceedings.
29. Secondly, special damages must not only be specifically pleaded but must also be strictly proved.
30. The Court of Appeal in Hahn v Singh [1985] KLR 716 held that special damages must be specifically pleaded and strictly proved.
31. Similarly, in Capital Fish Kenya Limited v Kenya Power & Lighting Company Limited [2016] eKLR , the Court of Appeal reaffirmed that special damages require strict proof through credible evidence.
32. The Interested Party has merely listed figures without producing documentary evidence proving payment of legal fees, transport expenses or crop losses.
33. Moreover, questions relating to alleged crop damage or compensation fall outside the scope of this interlocutory application and cannot properly be determined without pleadings and evidence tested through the normal adjudicative process.
34. Consequently, the prayer seeking payment of Kshs.676,000 is devoid of evidential and legal foundation and must fail.
Disposition
35. In the end, the Court finds that although there was failure to strictly comply with the directions on service, the circumstances of this case do not warrant the dismissal of proceedings that have been pending since 2018. The omission is capable of being remedied without occasioning prejudice to the Interested Party.
36. Consequently, the Notice of Motion dated 28th May 2026 is partially unsuccessful and is disposed of in the following terms:
a) The prayer seeking dismissal of the Judicial Review proceedings for want of prosecution and non-compliance with court directions is declined.
b) The prayer seeking payment by the Applicant of Kshs.676,000 together with interest is dismissed .
c) The Applicant shall, within fourteen (14) days from the date hereof, serve upon the Interested Party's advocates all pleadings and documents on record and thereafter file a proper affidavit of service.
d) In default of compliance within the stipulated period, the Interested Party shall be at liberty to move the Court for appropriate orders, including dismissal of the proceedings.
e) Costs of this application shall abide by the outcome of the substantive Judicial Review proceedings.
f) Preliminary Objection dismissed with no order as to cost.
g) Mention on the 24 th September 2026.
h) It is so ordered.
Ruling dated and delivered at Homa Bay via Teams online platform this 31 st day of July 2026.
In the Presence of;
1. Osoro for the ex-parte applicant -Present
2. Jabeya for Ms. Murage for Interested Party -Present
3. Court Assistant, Ms Awino.
JUSTICE J.W WANYONYI, JUDGE
31/7/2026
2 | Page HOMA BAY ELC JR 1 OF 2022 – RULING