Njubi v Nairobi City Water & Sewerage Company & 2 others (Environment and Land Case E313 of 2022) [2025] KEELC 5958 (KLR)
The bottom line
#The Environment and Land Court refused to reinstate a land suit dismissed after the plaintiff ignored a hearing notice, ruling that a year's delay showed laziness, not a mistake.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this court can/ought to set aside the orders made on 13th December 2023 dismissing the suit and reinstate it for hearing
Key legal issues
#Whether the court ought to set aside the dismissal orders of 13th December 2023 and reinstate the suit
The application was dismissed; the plaintiff was served with the hearing notice and had ceased to have an advocate on record, and her conduct demonstrated indolence rather than excusable mistake
The court found the hearing notice was personally served and never disputed, and that the application by Nasimiyu & Co. Advocates to cease acting had been served on the plaintiff, negating her claim of continued representation. Her participation in taxation proceedings showed awareness of the suit's status. Bringing the application more than a year after dismissal was an afterthought. The discretion under Shah v Mbogo exists to correct accident, inadvertence or excusable mistake, but is not available to an indolent party.
Whether the plaintiff's failure to attend court was attributable to counsel (mistake of counsel)
No - the claim that she was still represented was untrue, and the Order 9 Rule 13(1) argument raised in submissions was irrelevant at that stage
The court record showed the firm of Nasimiyu & Co. Advocates had filed an application to cease acting, which was served upon the plaintiff. Her assertion that she believed she was still represented contradicted the record. The argument that the firm failed to comply with Order 9 Rule 13(1) was introduced only in submissions and therefore irrelevant. The court thus rejected the mistake-of-counsel justification underlying the application.
Legal principles established
#- A court has discretion to set aside a judgment or order to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake, but will not exercise that discretion to aid an indolent litigant
- Dismissal of a suit for non-attendance by the plaintiff or for want of prosecution amounts to a judgment in that suit
Court orders
#- 1.The notice of motion dated 4th January 2025 is dismissed
- 2.Each party to bear its own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules
Relief refused
#Setting aside the orders of 13th December 2023 dismissing the suit and reinstatement of the suit for hearing
The plaintiff was duly served with the hearing notice, was aware of the proceedings (including taxation), and the delay of over a year evidenced indolence rather than mistake of counsel
Costs of the application in the cause
The application was dismissed with each party bearing its own costs
Costs
Each party to bear its own costs
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.
This is clearly not a case of mistake of counsel but rather pure indolence on the part of a litigant. Unfortunately, this court cannot exercise its discretion to aid a party who is indolent.
The notice of motion dated 4th January, 2025 lacks merit, it is a waste of the court’s precious time, and it is hereby dismissed. Each party to bear its own costs.
This court has discretion to set aside judgment or order to avoid injustice or hardship resulting from an accident, inadvertence or excusable mistake
dismissal of a suit for nonattendance by the plaintifi or for want of prosecution amounts to a judgment in that suit.
Issues in the judgment
#The case number of the suit and the parties' names do not appear in the judgment text provided; only roles (plaintiff/applicant, 1st and 3rd defendants/respondents) are given.
The judgment does not state the fate or presence of the 2nd defendant/respondent; only the 1st and 3rd defendants filed replying affidavits.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njubi v Nairobi City Water & Sewerage Company & 2 others (Environment and Land Case E313 of 2022) [2025] KEELC 5958 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5958/eng@2025-08-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.