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ELCDismissedCivil Suit No 55 of 2010· [2025] KEELC 1421 (KLR)

Wafula v Wepukhulu & 5 others (Civil Suit 55 of 2010) [2025] KEELC 1421 (KLR)

Environment and Land Court
20 March 2025
2,172 words in judgment
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The bottom line

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A Bungoma court refused to reinstate a land suit dismissed after the owner and his lawyer skipped the hearing and waited 17 months to act.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Bungoma (E.C. Cherono, ELC Judge, dated 20 March 2025) determined the Applicant's Notice of Motion dated 25/05/2024 seeking to set aside the court's order of 06/12/2022 dismissing/terminating his suit and to reinstate it, invoking Articles 10, 22(1), 40(2) and 159(2)(e) of the Constitution and the Civil Procedure Act and Rules. The suit concerned land parcels E.Bukusu/N.Sang'alo/1703 and 1705. The Applicant argued that mention and hearing dates were never communicated to him, that the suit had been stood over pending Court of Appeal proceedings, and that the dismissal denied him his right to be heard under Article 50. The 1st Defendant/Respondent opposed, contending the application came 17 months after dismissal with no explanation, that counsel was present when the hearing date was taken, and that the dispute had in any event been determined in Kakamega HC Succession Cause No. 124 of 1986. The court framed a single issue: whether sufficient grounds existed to set aside the dismissal and reinstate the suit. Applying Shah v Mbogo, Mwangi S. Kimenyi, Tana & Athi Rivers Development Authority and Ketteman v Hansel Properties, the court held the discretion to reinstate must be exercised judicially; the hearing date was fixed in the presence of the Applicant's counsel, no affidavit from the former advocate explained the non-attendance, and the 17-month delay was inordinate and inexcusable. The claim of an Article 50 violation was rejected. The application was dismissed with costs.

Key legal issues

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01

Whether the Applicant established sufficient grounds to set aside the dismissal of 06/12/2022 and reinstate the suit

Holding

The application failed: the hearing date was taken in the presence of the Applicant's counsel, the delay of 17 months was inordinate and unexplained, and no affidavit from the former advocate explained the non-attendance

Reasoning

Reinstatement is discretionary and must be exercised judicially. The court applied the Shah v Mbogo principle and the Mwangi S. Kimenyi test on delay. Counsel was present when the hearing date was taken but neither plaintiff nor counsel attended the hearing. The Applicant did not admit fault, did not obtain an affidavit from his former advocate, and waited 17 months before moving the court. The indolence was found inexcusable and the dismissal was not set aside.

p. 4
02

Whether the Applicant's right to be heard under Article 50 was violated

Holding

No violation; the date was fixed in the presence of his counsel and the failure to attend was attributable to the plaintiff and his advocate

Reasoning

The Applicant alleged he was unaware of the hearing date, but the record showed his counsel (Mr. Shikhu holding brief for Mr. Kakhula) was present on 02/11/2022 when the hearing date of 06/12/2022 was taken. The court held it was erroneous to claim a denial of the right to be heard and that blame lay with the former advocate, not the court.

p. 4

Legal principles established

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  • The discretion to reinstate a dismissed suit must be exercised judicially, to avoid injustice from inadvertence or excusable mistake, not to assist a party who has deliberately obstructed or delayed the course of justice
  • Under Order 12 Rule 7, a court may on application set aside or vary a judgment or dismissal upon such terms as may be just
  • Mistakes of counsel are not automatically visited on a client; courts weigh candour, the interests of both parties, and whether the error was negligent

Court orders

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  1. 1.The Notice of Motion application dated 25/05/2024 is dismissed with costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 22(1), 40(2), 50, 159(2)(e)
  • Civil Procedure Act, Cap. 21 Laws of KenyaSections 1A, 1B, 3, 3A
  • Civil Procedure Rules, 2010Order 40 Rules 1, 4 and 10; Order 12 Rule 7

Cases cited (4)

  • Shah v Mbogo & another
    [1967] EA 1116
  • Mwangi S. Kimenyi v Attorney General and Another
    Misc Civil Suit No. 720 of 2009
  • Tana And Athi Rivers Development Authority v Jeremiah Kimigho Mwakio & 3 Others
    [2015] eKLR
  • Ketteman & Others v Hansel Properties Ltd
    [1988] 1 ALL ER 38
Jurisdiction invoked
Articles 10, 22(1), 40(2) & 159(2)(e) of the Constitution; Sections 1A, 1B, 3 & 3A of the Civil Procedure Act; Order 40 Rules 1, 4 and 10 of the Civil Procedure Rules, 2010 (as invoked by the Applicant); Order 12 Rule 7 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Wafula v Wepukhulu & 5 others (Civil Suit 55 of 2010) [2025] KEELC 1421 (KLR)", Case Analysis (2025). Civil Suit No 55 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1421/eng@2025-03-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.