REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MAKUENI
ELC NO. E020 OF 2020
THOMAS KYONZE MULILI......................….............................PLAINTIFF
-VERSUS-
JACKSON MUIA MBITHI...................................................1ST DEFENDANT
THE LAND REGISTRAR, MAKUENI..............................2ND DEFENDANT
RULING
1. This is a ruling in respect of a notice of motion dated 18th May, 2025 in which the Plaintiff/Applicant seeks setting aside this court’s orders of 3rd March, 2025 dismissing his suit for non attendance. The Applicant contends that on the date the suit came up for hearing, counsel for the Applicant did not attend court due to failure on the part of the counsel to diarize the matter.
2. The Applicant’s counsel state that subsequent to the dismissal and unaware that the suit had been dismissed, she spoke to the Defendant/Respondent’s counsel who informed her that the case was coming for hearing on 22nd May, 2025. The counsel prepared for the hearing. A few days later, she spoke to the Respondent’s counsel regarding a different matter that is when the counsel informed her that what was coming for hearing on 22nd May, 2025 is the counterclaim of the 1st Respondent as the Applicant’s suit had been dismissed on 3rd March, 2025.
3. The Applicant states that she had never been served with the 1st Respondent’s counterclaim and that it is necessary that the order of 3rd March, 2025 be set aside so that the Applicant can have an opportunity to respond to the counterclaim and have the main claim heard together with the counterclaim.
4. The Applicant’s application was opposed by the 1st Respondent based on a replying affidavit sworn on 24th July, 2025. The Respondent contends that the Applicant has not given sufficient reason for non attendance on 3rd March, 2025 and that that is not the only time he has failed to attend court. The 1st Respondent states that on 10th February, 2025 the Applicant too failed to attend court. He states that the Applicant’s application is frivolous and should not be entertained.
5. The 1st Respondent states that the Applicant has lost interest in the suit. He states that should the court be inclined to allow the application, the court should grant him thrown away costs of Kshs.75,000/=.
6. The court directed parties to file written submissions. The Applicant filed submissions dated 4th September, 2025. The 1st Respondent filed submissions dated 10th November, 2025.
7. The Applicant submits that his advocate was not served with a hearing notice as directed on 10th February, 2025 and that the counterclaim by the 1st Respondent was directed to a wrong email address. The Applicant relied on the case of Joseph Kinyua –vs- G. O. Ombachi (2017) KEHC 2815 (KLR) where it was held as follows:
“The application is asking for reinstatement of the appeal for hearing on merit. I will not re-invent the wheel on this subject. I stated the principles governing reinstatement of suit in the case of John Nahashon Mwangi -vs- Kenya Finance Bank Limited (in liquidation) (2015) EKLR as follows:
The fundamental principles of justice are enshrined in the entire constitution and specifically in Article 159 of the Constitution. Article 50 coupled with article 159 of the Constitution on right to be heard and the constitutional desire to serve substantive justice to all the parties, respectively, constitutes the defined principles which should guide the court in making a decision on such matter of reinstatement of a suit which has been dismissed by the court. These principles were enunciated in a masterly fashion by courts in a legion of decisions which I need to multiply except to state that; courts should sparingly dismiss suits for want of prosecution for dismissal is a draconian act which drives away the Plaintiff in an arbitrary manner from the seat of judgment. Such act are comparable only to the proverbial ‘Sword of the Damocles’ which should only draw blood where it is absolutely necessary. The same test will apply in an application to reinstate a suit and a court of law should consider whether there are reasonable grounds to reinstate such suit of course after considering the prejudice that the Defendant would suffer if the suit was reinstated against the prejudice the Plaintiff will suffer if the suit is not reinstated”.
8. The 1st Respondent submitted that the Applicant has not shown why he did not attend court on 10th February, 2025 and 3rd March, 2025. He relied on the case of Mwangi S. Kimenyi –vs- Attorney General and Another Mis. Civl Suit No. 720 of 2009 where it was held as follows:
“When the delay is prolonged and inexcusable, such that it would cause grave injustice to the one side or the other or to both, the court may in its discretion dismiss the action straight away.
However, it should be understood that prolonged delay alone should not prevent the court from doing justice to all the parties – the Plaintiff, the Defendant and any other third or interested party in the suit; lest justice should be placed too far away from the parties.
Invariably, what should matter to the court is to serve substantive justice through judicious exercise of discretion which is to be guided by the following issues:
1. Whether the delay has been intentional and contumelious;
2. Whether the delay or the conduct of the Plaintiff amounts to an abuse of the court;
3. Whether the delay is inordinate and inexcusable;
4. Whether the delays is one that gives rise to a substantive risk to fair trial in that it is not possible to have a fair trial of issues in action or causes or likely to cause serious prejudice to the Defendant; and
5. What prejudice will the dismissal cause to the Plaintiff. By this test, the court is not assisting the indolent, but rather it is serving the interest of justice, substantive justice on behalf of all the parties”.
9. I have considered the Applicant’s application as well as the opposition to the same by the 1st Respondent. I have also considered the submissions by the parties. I must say at the outset the Applicant is not being candid on the reason why there was no attendance in court on 3rd March, 2025. In the supporting affidavit to the application, the reason given is failure to diarize the date of 3rd March, 2025. In the submissions, the Applicant states that non attendance was due to non service of the hearing notice. The Applicant is also stating in the submissions that the case was dismissed on 9th March, 2025 when this is not the case.
10. The parties have also dwelt on whether there was service of the counterclaim or not. This is a non issue in as far as the application before me is concerned. The issue for determination is whether the discretion of the court should be exercised to set aside the orders of 3rd March, 2025. I have gone through the CTS and cannot find any evidence of service of hearing notice for 3rd March, 2025. As there was no service for the hearing scheduled on 3rd March, 2025, there is no way the Applicant or his counsel would have attended court if they were not aware of the hearing date.
11. It is the counsel for the 1st Respondent who was present in court on 10th February, 2025 when the date of 3rd March, 2025 was given. The counsel was directed to serve hearing notice. As there is no evidence of service, I find that the dismissal order of 3rd March, 2025 should be set aside ex debitio justitiae. I therefore allow the Applicant’s application dated 18th May, 2025 as prayed. It is so ordered.
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HON. E. O. OBAGA
JUDGE
RULING DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 22ND DAY OF JANUARY, 2026.
IN THE PRESENCE OF:
Mr. Kimundi for Mr. Makundi for 1st Defendant.
Court assistant – Steve Musyoki
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