Mercy N. Nguta & another v 1st Respondent & 2nd Respondent (Petition reinstated)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether the court is seized of the requisite jurisdiction to entertain and adjudicate upon the application
- 2.whether the application has been made with unreasonable and inordinate delay and if so, whether the delay has been accounted for
- 3.whether the obtaining circumstances necessitate the exercise of discretion in favour of the Applicants or otherwise
Key legal issues
#Jurisdiction to set aside the dismissal
The court had both statutory jurisdiction under Order 12 of the Civil Procedure Rules, 2010 and inherent jurisdiction under Section 3A of the Civil Procedure Act to set aside dismissal orders made in the parties' absence.
The Petition was listed for directions, akin to a mention, at which no substantive orders could issue. The dismissal made in the absence of parties and their advocates was irregular and not an order on the merits. Such orders fall within Order 12 Rules 1 and 2 and within the court's inherent power to avert miscarriage of justice under Section 3A of the Civil Procedure Act.
Inordinate and unexplained delay
Although the delay of roughly two and a half months was prima facie unreasonable, it was satisfactorily explained, and the excluded court holidays reduced the effective period to be accounted for.
The period from 21st December 2023 to 13th January 2024 fell within excluded timelines. The Applicants explained the remainder by the valuer's failure to avail the valuation report and counsel's leave. The law sets no minimum or maximum delay period; every delay must be satisfactorily explained, and proof is on a balance of probabilities.
Exercise of discretion - whether to reinstate
The court exercised its discretion in favour of reinstatement because the dispute concerns land, which is emotive and sensitive, and disputes should be determined on merit rather than procedural technicalities.
Relying on Court of Appeal authority on the sanctity of land rights and the preference for substantive over procedural determinations in land disputes, the judge held it preferable to err on the side of reinstating the Petition. The impugned substantive orders made on a directions date occasioned apparent injustice.
Legal principles established
#- A court has jurisdiction to set aside dismissal orders made in the absence of parties under Order 12 Rules 1 and 2 and its inherent jurisdiction.
- Every delay must be satisfactorily explained; the law sets no minimum or maximum period constituting unreasonable delay.
- No substantive orders should issue on a date scheduled for directions.
Court orders
#- 1.The Application dated 28th February 2024 be and is hereby allowed.
- 2.The dismissal orders made on 11th December 2023 be and are hereby set aside.
- 3.The Petition be and is hereby reinstated for hearing and determination on merits.
- 4.The Petitioners shall ensure that all the requisite documents are filed and served within fourteen (14) days from the date hereof.
- 5.The Respondents shall also have liberty to file and serve the requisite documents, if any, within fourteen (14) days from the date of service.
- 6.Each party shall bear own costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 12 Rules 1 and 2 of the Civil Procedure Rules, 2010 and the inherent jurisdiction under Section 3A of the Civil Procedure Act, Chapter 21, Laws of Kenya
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The Application dated 28th February 2024 be and is hereby allowed.
The dismissal orders made on 11th December 2023 be and are hereby set aside.
The Petition be and is hereby reinstated for hearing and determination on merits.
Each party shall bear own costs.
In this regard, there is no gainsaying that the impugned order was itself laced with irregularity and thus falls within the jurisdiction of this court to review, revise, and/or set aside.
The law does not set out any minimum or maximum period of delay. All it states is that any delay should be satisfactorily explained.
Issues in the judgment
#The judgment's final 'Final Disposition' is dated 2nd April 2025 while paragraph 5 records the hearing as having taken place on 4th March 2025; no internal contradiction but the petition number and parties' full names are not stated in the extract.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mercy N. Nguta & another v 1st Respondent & 2nd Respondent (Petition reinstated)", Case Analysis (2025). Petition dated (Application dated 28th February 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3268/eng@2025-04-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.