Mwanjira & another v Ngovi (Legal Representatives of the Estate of Omar Rajimbo) & 7 others (Environment and Land Case 188 of 2021) [2026] KEELC 948 (KLR)

Order 12 Rule 1 requires that a suit be called on for hearing outside the court before dismissal for non-attendance. The requirement is a procedural safeguard to ensure parties present within the precincts are not unfairly prejudiced. In the virtual-hearing era its application is contextual and purposive. The Plaintiffs' consistent affidavit evidence that they arrived by 8:30 a.m., were directed to a shaded area by a court official and were never called, coupled with the court official's misdirection, meant the safeguard was not observed.

Applying Shah v Mbogo and Philip Chemwolo v Augustine Kubende, blunders and excusable mistakes should not bar a litigant from being heard on the merits. The Plaintiffs were present at the precincts, misdirected by officials, and their counsel arrived later; their affidavits consistently narrated that they waited to be called while other litigants were called by name. Denying reinstatement where litigants were present but misdirected would defeat the overriding objective under Sections 1A and 1B of the Civil Procedure Act.

Article 25(c) makes the right to a fair trial non-derogable; Article 50(1) guarantees a fair and public hearing; Article 48 obligates the State to ensure access to justice; Article 40 protects property rights. Where litigants were present within the precincts but misdirected by officials, dismissal without hearing risked undermining substantive rights. The claim concerned family property allegedly sold without authority, so denying a hearing would amount to depriving them of property without due process. Courts must lean towards substantive justice rather than technical dismissal.

Perjury is an offence under Section 108 of the Penal Code carrying seven years' imprisonment. However, determination of perjury requires an intensive criminal process including investigation and trial, which cannot be conclusively adjudicated within a civil application. Perjury proceedings are distinct from civil disputes and require independent prosecutorial action. The Court's role was confined to determining whether sufficient cause existed to reinstate the suit, though the record remains available to investigative authorities.

Although costs follow the event under Section 27(1) of the Civil Procedure Act, costs are discretionary and must be exercised judiciously to achieve fairness. The dismissal was occasioned by procedural misdirection rather than deliberate indolence by the Plaintiffs, and the Defendants had not demonstrated prejudice justifying saddling the Plaintiffs with costs.