Cubi & 3 others v Hon Attorney General on Behalf of the Resident Magistrate Senior Resident Magistrate Court at Wang’uru; Kariuki & another (Interested Parties) (Judicial Review 4 of 2023) [2025] KEELC 5498 (KLR)
The bottom line
#Kenya's Environment and Land Court refused to revive a land case dismissed in 2016, saying years of unexplained inaction by the litigants—not just their lawyer—killed it.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicants established sufficient cause to set aside the dismissal of 16th December 2016 and reinstate the suit
No. The delay of almost five years between dismissal and application was prolonged and inexcusable; the Applicants blamed the file transfer and their former Advocate but produced no evidence of diligence, and the 1st Applicant's withdrawal and disposal of the land showed the substratum had shifted, making reinstatement prejudicial.
The court applied the Ivita v Kyumbu test: whether the delay is prolonged and inexcusable and whether justice can still be done. It found no letters, registry inquiries or follow-up between 2012 and 2016, a further six months' delay after the file was traced in March 2021, and reliance on counsel's default which the law does not permit. Prejudice to the registered Interested Party outweighed speculative prejudice to the Applicants, and Article 159(2)(b) demands expeditious justice.
Legal principles established
#- The power to reinstate a suit dismissed for want of prosecution is discretionary but must be exercised judiciously on established principles; prolonged and inexcusable delay without demonstrated diligence disentitles a litigant from reinstatement.
- A case belongs to the litigant, not the Advocate; a litigant cannot rely on counsel's default to excuse indolence.
Court orders
#- 1.The Notice of Motion application dated 28th September 2021 is dismissed with costs to the Respondent and the 1st Interested Party
- Jurisdiction invoked
- Order 12 Rule 7 and Order 51 Rule 1 of the Civil Procedure Rules; Sections 1A, 1B and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cubi & 3 others v Hon Attorney General on Behalf of the Resident Magistrate Senior Resident Magistrate Court at Wang’uru; Kariuki & another (Interested Parties) (Judicial Review 4 of 2023) [2025] KEELC 5498 (KLR)", Case Analysis (2025). Notice of Motion dated 28th September 2021 (originating from Misc. Civil Application No. 53 of 2011, Embu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5498/eng@2025-07-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.