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ELCPartially AllowedPetition filed October 12, 2021 (Malindi)· [2025] KEELC 7457 (KLR)

Balu & 10 others v Railway Housing Co-operative Society Limited & 7 others (Environment and Land Petition 23 of 2021) [2025] KEELC 7457 (KLR)

Environment and Land Court of Kenya
23 October 2025
1,711 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court reinstated a land petition dismissed for inaction, mostly because the parties were negotiating a settlement.

What this practically means

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Executive summary

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The Petitioners moved the court by application dated April 3, 2025, seeking reinstatement of their land petition (concerning Kilifi/Kikambala Block 285/3 and resultant sub-plots) which had been dismissed for want of prosecution on April 1, 2025 following a notice to show cause. The Petitioners, through their advocate Mr. Sifuna, argued that the notice to show cause was defective because it was addressed to the wrong law firms rather than the advocates on record, and that the show-cause date of March 31, 2025 was a gazetted public holiday; they contended they were condemned unheard contrary to natural justice and Article 50 of the Constitution, and highlighted their proactive steps and ongoing settlement negotiations with the 1st Respondent. The Attorney General opposed, submitting that the notice was properly served, that litigation must end, and that Order 17 Rule 2 does not require service on a party dormant for over a year. The court agreed that the notice to show cause was properly issued and served, and that the rescheduling from the public holiday to April 1, 2025 was adequately notified; none of the parties appeared and the dismissal was procedurally sound. However, applying Order 12 Rule 7, section 3A of the Civil Procedure Act and Articles 50 and 159 of the Constitution, and the principles in Olumbe v Obanyi, Ivita v Kyumbu and John Nahashon Mwangi, the court was persuaded to reinstate the Petition because of the pending negotiations and possibility of settlement. The application was allowed to the extent of setting aside the April 1, 2025 dismissal orders, with the Petition to be set down for hearing at the earliest opportunity. The court made no order as to costs. E. K. Makori J delivered the ruling virtually at Malindi on October 23, 2025.

Key legal issues

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01

Reinstatement of a petition dismissed for want of prosecution

Holding

The dismissal order of April 1, 2025 was set aside and the Petition reinstated for hearing, the court being persuaded by the prospect of an out-of-court settlement.

Reasoning

The court applied Order 12 Rule 7, section 3A of the Civil Procedure Act and Articles 50 and 159 of the Constitution, adopting the principles in Olumbe v Obanyi that reinstatement is discretionary and that courts prefer hearing suits on merits. Though the court found the NTSC properly issued and served, and noted the Petitioners' inaction since the June 2023 injunction, the reported ongoing negotiations for compensation of the 1st Respondent persuaded the court that the Petition ought to be reinstated.

p. 4
02

Whether the Petitioners were denied natural justice by the notice to show cause

Holding

The court found the NTSC properly issued and served; the scheduling hiccup arising from the gazetted public holiday was addressed by a general notice rescheduling matters to April 1, 2025, so the claim of improper service failed.

Reasoning

The court held that the show-cause date of March 31, 2025 fell on a gazetted public holiday, and all matters were rescheduled to April 1, 2025 with notice to all advocates and litigants. None of the parties appeared, and the dismissal was therefore proper. The court also noted that a matter dormant for over a year may be dismissed without notice.

p. 3

Legal principles established

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  • Reinstatement of a suit dismissed for want of prosecution is discretionary and not automatic; the applicant must demonstrate compelling reasons and due diligence.
  • Courts prefer hearing cases on their merits rather than dismissing them on technicalities, provided a fair trial is possible.

Court orders

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  1. 1.The application dated April 3, 2025 is allowed to the extent of setting aside the dismissal orders of the court dated April 1, 2025
  2. 2.The Petition is to be set down for hearing at the earliest opportunity as directed by the court
  3. 3.No order regarding costs
Jurisdiction invoked
Articles 47, 48, 50 and 159 of the Constitution; Order 12 Rule 7, Order 51 Rules 1 and 15, Order 42 Rule 6 of the Civil Procedure Rules; Sections 1A, 1B, 3A and 80 of the Civil Procedure Act

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, "Balu & 10 others v Railway Housing Co-operative Society Limited & 7 others (Environment and Land Petition 23 of 2021) [2025] KEELC 7457 (KLR)", Case Analysis (2025). Petition filed October 12, 2021 (Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7457/eng@2025-10-23

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