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ELCDismissedELC 574 of 2013 (consolidated with ELC 860 of 2013 and others)· [2025] KEELC 2850 (KLR)

Nduati & another v Harrison & another; Onuonga & 4 others (Interested Parties) (Environment & Land Case 317 of 2010 & Environment and Land Case Civil Suit 860 & 874 of 2013 (Consolidated)) [2025] KEELC 2850 (KLR)

Environment and Land Court
25 March 2025
COChristine Ochieng
1,999 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court refused to reinstate a land suit dismissed for want of prosecution, ruling that blaming a former advocate does not excuse a litigant's own inaction.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Nairobi (Christine Ochieng, J) on the Plaintiffs' Notice of Motion dated 22 May 2024 seeking to set aside the court's order of 18 October 2021 dismissing their consolidated suits for want of prosecution and to reinstate the suits. The plaintiffs blamed their former advocates for failing to attend court and to inform them of the dismissal. The 1st Defendant opposed, contending the plaintiffs had been indolent, with no activity for over six months before dismissal, and that reinstatement would prejudice him. The 1st Interested Party supported reinstatement, having built a home on land purchased from the plaintiff. The 1st Defendant in ELC 860 of 2013 also opposed, noting thirteen years of inaction, the death of a key witness, and that two claimed parcels had been transferred to him in 2018. The court framed a single issue: whether the suit should be reinstated. Reviewing the record of repeated non-attendance since 2014, the court held the plaintiffs indolent, found blame on erstwhile counsel insufficient, noted the application was filed over two and a half years after dismissal and through a new law firm without Order 9 Rule 9 leave, and held the Interested Parties could file fresh suits if aggrieved. The application was dismissed with costs on 25 March 2025.

Key legal issues

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01

Whether the suit dismissed for want of prosecution on 18 October 2021 should be reinstated

Holding

The application for reinstatement was dismissed; the plaintiffs were indolent, offered no plausible excuse beyond blaming former counsel, and delayed over two and a half years in moving the court

Reasoning

The court reviewed the record showing repeated non-attendance since 2014 and dismissal in October 2021. It applied the test that a party seeking reinstatement must show the delay is excusable and that no prejudice will be suffered. Blame on counsel, accompanied by a litigant's own carelessness and inactivity, does not justify exercise of discretion. The application was also filed without Order 9 Rule 9 leave after engaging new advocates.

02

Whether failure to obtain leave under Order 9 Rule 9 before filing through a new law firm was fatal

Holding

The court noted the application was filed by a new law firm without the leave required under Order 9 Rule 9, undermining the application

Reasoning

The court observed the plaintiffs had instructed a new firm post-judgment without seeking leave as envisaged under Order 9 Rule 9 of the Civil Procedure Rules, as the 1st Defendant had argued, adding to the application's deficiencies.

p. 4

Legal principles established

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  • Blaming an erstwhile advocate is not enough; a litigant bears responsibility to follow up on their case, and prolonged, inexcusable delay coupled with the litigant's own inactivity disentitles them to reinstatement

Court orders

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  1. 1.The Notice of Motion application dated 22nd May 2024 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 17 Rule 2(1 & 2)
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 9 Rule 9
  • Civil Procedure ActSections 1A, 1B and 3A
  • Constitution of KenyaArticle 159

Cases cited (8)

  • Agip (Kenya) Limited v Highlands Tyres Limited
    [2001] KLR 630
  • Mwangi S. Kimenyi v Attorney General & Kenya Institute for Public Policy Research and Analysis (KIPPRA)
    2014 KEHC 4220 (KLR); [2014] eKLR
  • James Ndonyu Njogu v Muriuki Macharia
    [2020] eKLR
  • S.K Tarwai v Veronica Mehlmann
    [2019] eKLR
  • Tabuche v Tinga & 2 Others
    (Civil Appeal E003 of 2022) [2024] KECA 551 (KLR) (24 May 2024)
  • Habo Agencies Limited v Wilfred Odhiambo Musingo
    [2015] eKLR
  • Tana and Athi Rivers Development Authority v Jeremiah Kimigho Mwakio & 3 others
    [2015] eKLR
  • Manchester Outfitters Limited v Pravin Galot & 4 Others
    [2020] eKLR
Jurisdiction invoked
Order 17 Rule 2(1 & 2) and Order 51 Rule 1 of the Civil Procedure Rules; Sections 1A, 1B and 3A of the Civil Procedure Act; Article 159 of the Constitution

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, "Nduati & another v Harrison & another; Onuonga & 4 others (Interested Parties) (Environment & Land Case 317 of 2010 & Environment and Land Case Civil Suit 860 & 874 of 2013 (Consolidated)) [2025] KEELC 2850 (KLR)", Case Analysis (2025). ELC 574 of 2013 (consolidated with ELC 860 of 2013 and others). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/2850/eng@2025-03-25

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