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ELCPartially Allowed· [2026] KEELC 36 (KLR)
Njuguna & 2 others (Village Development Group) v Mwihike Farmers Company Limited (Environment and Land Case 229 of 2019) [2026] KEELC 36 (KLR)
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·~5 min to read original · ~4 min briefThe bottom line
#Kenya's High Court reinstated a suit struck out in 2023, ruling that even a long delay shouldn't defeat justice when a party was kept in the dark by their own advocate.
What this practically means
#Executive summary
#The plaintiffs/applicants moved the court by notice of motion dated 8th April, 2025 seeking leave for the firm of Messrs. Awuor & Company to come on record in place of Messrs. Gacau Kariuki & Company Advocates, and seeking to set aside orders issued on 23rd March, 2023 striking out their suit, and to revive the matter. The application was anchored on the Judicature Act, the High Court (Practice and Procedure) Rules, Articles 159(2) and 50 of the Constitution, Sections 1A, 1B and 3A of the Civil Procedure Act, and Orders 12 Rule 7 and 51 of the Civil Procedure Rules. The applicants deposed that they only learnt of the striking out when they saw a three-month eviction notice on their residential wall on 20th February, 2025, their former advocates having told them the suit had been settled. The defendant/respondent opposed through grounds of opposition and a replying affidavit of Kibanyu Kimani, contending the suit was struck out for non-compliance with Order 37 Rule 7 following directions issued on 24th January, 2023, and that the application was an afterthought made in bad faith. The court identified a sole issue: whether the application was merited. Relying on Order 12 Rule 7 and the Njue Njagi, Shah and CMC Holdings authorities on the discretionary power to set aside dismissals, the court acknowledged the lengthy delay but, prioritising substantive justice, exercised its discretion in favour of the applicants. The court granted Awuor & Company leave to come on record, set aside the striking-out orders of 23rd March, 2023, reinstated the suit for hearing on merit, and awarded the defendant/respondent costs of the application assessed at Kshs.45,000/-.
Key legal issues
#01
Whether the notice of motion dated 8th April, 2025 seeking reinstatement of the suit struck out on 23rd March, 2023 is merited
Holding
The application was merited; the striking-out order was set aside and the suit reinstated, with the delay mitigated by costs.
Reasoning
Order 12 Rule 7 confers discretion to set aside a dismissal. Although counsel was present on 23rd March, 2023 and conceded non-compliance, the applicants were unaware of the striking out until served with an eviction notice. Weighing the lengthy delay against the duty to do substantive justice, the court exercised its discretion in favour of reinstatement, mitigating the delay through costs to the respondent.
p. 3
Legal principles established
#- Dismissal of a suit for non-attendance or want of prosecution amounts to a judgment in that suit, and the court may on application set aside or vary it on just terms.
- The court's discretion to set aside a judgment or order exists to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake, and may be exercised even where there is delay if substantive justice so requires.
Court orders
#- 1.The firm of Messrs. Awuor & Company granted leave to come on record for the plaintiffs/applicants in place of Messrs. Gacau Kariuki & Company Advocates
- 2.The orders issued on 23rd March, 2023 striking out the applicant's suit are set aside and the plaintiff/applicant's suit is reinstated for hearing and determination on merit
- 3.The defendant/respondent is awarded costs of this application, assessed at Kshs.45,000/-
- Jurisdiction invoked
- Sections 1A, 1B & 3A of the Civil Procedure Act; Order 12 Rule 7 and Order 51 of the Civil Procedure Rules; Article 159(2) & 50 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njuguna & 2 others (Village Development Group) v Mwihike Farmers Company Limited (Environment and Land Case 229 of 2019) [2026] KEELC 36 (KLR)", Case Analysis (2026). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/36/eng@2026-01-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.