REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NYERI
ELC NO. 66 OF 2016
PETER NDUMIA GATHUMA……………………………….…...PLAINTIFF
VERSUS
JOHNSTONE KAMAU MWANGI
ISAAC MAINA WAICHUNGU
(Substituted in place of Watson Wachira (Deceased)……..DEFENDANTS
RULING
1. The Defendants herein filed an application under Notice of Motion dated July 1, 2025, seeking an order that the court set aside the proceedings and reopen the matter for pretrial, to grant them the opportunity to file their defense.
2. The application is supported by the joint affidavit sworn by both Defendants. They depose that they were recently substituted for the deceased defendant, Watson Wachira, by a ruling of this court dated 27 February 2025. They further state that the matter had proceeded ex parte due to the ill health of the deceased defendant, Watson Wachira, who subsequently passed away.
3. The matter proceeded ex parte, thereby condemning the deceased defendant unheard, despite his willingness to have the case heard by the applicants herein.
4. They noted that the matter is still pending and that no judgment, either interlocutory or substantive, has been entered. They stated that they are ready and willing to defend the matter to its determination on the merits and to file a defense and accompanying pleadings within 7 days of leave being granted.
5. They also contend that no prejudice will be caused to the respondent and that it is in the broader interest of justice that the defendant be granted an opportunity to be heard.
The Plaintiff/Respondent’s replying affidavit
6. The Plaintiff swore an affidavit in response to the instant application, in which he deposed that, other than alleging that the deceased was in poor health, there is nothing to show that the deceased could not file pleadings in Court.
7. He noted that the case had been fully heard and that judgment had been delivered, and he states that the Court should uphold it.
8. He accused the Applicants of attempting to cover up illegal activities, including selling the deceased's land after he had died and before succession proceedings were concluded.
9. He also highlighted that the 1st Applicant, Johnstone Kamau Mwangi, had made a similar application that was dismissed on 25th October 2018, contending that the Application is meant to reopen a matter that is settled and that the ruling of this Court of 25th October 2018 has not been set aside.
The Applicant’s written submissions
10. Counsel for the Applicant submitted that the Applicant has demonstrated that, although the Defendant filed his defense, he couldn't defend the matter because he was ill and ultimately died before he could do so.
11. The record equally shows that the applicants sought to arrest the matter before it proceeded ex parte, but their application was denied. Only recently did the court grant the applicants the much-needed opportunity to substitute the deceased, after which they moved to reopen pretrial proceedings, since the matter had proceeded ex parte and been pending judgment.
12. They submit that the respondent has not demonstrated in his response any prejudice he would suffer if the pre-trial were reopened, and that he, in fact, does not object to the applicants' recent substitution.
13. The Applicants urged the Court to apply the oxygen principle to permit their application in the interest of justice.
Analysis and determination
14. The Applicants herein, having recently been substituted to act as the personal representatives of the estate of Watson Wachira Muriithi (Deceased), the Defendant named herein, wish to have the trial reopened and to be allowed to defend the case.
15. This suit was instituted by the Plaintiff by a Plaint dated 8th December 2016. A statement of defense on record, dated 13th May 2016, was filed by the named Defendant while he was still alive. The matter proceeded to a hearing on the 13th of March 2017, with no appearance by the Defendant. However, I note that judgment was never delivered.
16. The Applicants herein obtained letters of administration to the Deceased’s estate, issued on May 3, 2018. The Court allowed substitution of the said Deceased by a ruling delivered on February 27, 2025, and the Applicants then filed a statement of defense dated March 14, 2025, accompanied by a list of documents dated the same day. It is therefore unclear why the Applicants again seek to file a defense in this application.
17. The Applicants have relied on the court's overriding objective established by Section 1A of the Civil Procedure Act, which provides as follows:
“The overriding objective of this Act and the rules made hereunder is to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act. (2) The Court shall, in the exercise of its powers under this Act or the interpretation of any of its provisions, seek to give effect to the overriding objective specified in subsection (1).”
18. Section 3A provides that:
“Nothing in this Act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.”
19. Further, all parties to a suit have the right to a fair hearing under Article 50(1) of the Constitution of Kenya. The Defense case has not yet been heard since the suit was instituted, and the Applicants herein have stated that this was due to the Defendant's illness and untimely demise.
20. In a similar case, Wachira Karani v Bildad Wachira [2016] KEHC 6334 (KLR), Mativo J (then as he was) held that:
“I find the reason offered to be reasonable and excusable. I hold the view that it would be unjust and indeed a miscarriage of justice to deny a party who has expressed the desire to be heard the opportunity of prosecuting his case. The court in the above cited case of Richard Nchapai Leiyangu vs. IEBC & 2 others proceeded to state as follows: -
“The right to a hearing has always been a well-protected right in our constitution and is also the cornerstone of the rule of law. “
21. Having already substituted the Defendant with the Applicants herein, I opine that it is in the interest of justice for the Applicants to be heard at the earliest
22. The Notice of Motion dated July 1, 2025, is hereby allowed to the extent that this matter will start de novo, that the parties comply with pretrial directions within the next 21 days, and that a hearing be fixed on a priority basis.
23. Costs in the cause.
Dated, signed, and delivered electronically in Nyeri on this 8th day of July, 2026.
E. K. MAKORI
JUDGE
In the presence of:
Mr. Maina for the Plaintiff
Denis: Court Assistant
In the absence of:
Mr. Gitonga for the Defendant
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