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ELCPartially AllowedNot stated in judgment (ELC matter; related suit ELC CASE NO E054 OF 2022)· [2026] KEELC 2766 (KLR)

Faith & Hope Properties Kenya Limited & 7 others v Waweru & another (Environment and Land Case E058 of 2022) [2026] KEELC 2766 (KLR)

Environment and Land Court
12 May 2026
AKA. Y. Koross
1,603 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court reinstated a land suit dismissed without proper notice, confirming that no valid notice means no valid dismissal.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Machakos (Koross J) on the plaintiffs' notice of motion dated 23 July 2025, seeking reinstatement of their suit - which concerns an allegedly fraudulent land transfer - after its dismissal on 24 March 2025 for want of prosecution. The plaintiffs explained the non-attendance by illness, communication breakdown with former counsel, and non-service of the notice to show cause (NTSC). The defendants' replying affidavit was never filed owing to unpaid filing fees, so the motion stood unopposed. The court framed a single issue: whether to set aside the dismissal orders. It reviewed Order 17 Rule 2(1) and (6) of the Civil Procedure Rules and the settled jurisprudence in Shah v Mbogo and Ivita v Kyumbu on excusable mistake and prolonged delay. Examining the record, the court found that although directions had been given on 1 October 2024 and 27 January 2025 for the registry to extract and serve an NTSC, this was never done; the registry merely emailed the parties' former advocates without attaching the notice. Accordingly, no valid NTSC was served, the dismissal of 24 March 2025 was improper, and the motion was merited. The court allowed the motion, set aside the entire orders of 24 March 2025 and reinstated the suit for hearing on the merits. However, noting that the matter was to be heard alongside a prior suit, ELC Case No. E054 of 2022, involving the same parties and probably the same subject matter and thus possibly sub judice, the court directed that further directions be issued only after judgment in that prior matter, with a mention date to issue. No costs order was made in the final orders.

Key legal issues

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01

Whether the suit, dismissed for want of prosecution on 24 March 2025, should be reinstated

Holding

Yes; the dismissal was set aside because the notice to show cause was never properly extracted and served, rendering the dismissal improper

Reasoning

Order 17 Rule 2(1) of the Civil Procedure Rules requires written notice to parties before a suit may be dismissed for inaction. The record showed the registry failed twice to serve a valid NTSC, merely emailing the advocates without attaching it. Applying Shah v Mbogo and Ivita v Kyumbu, the discretion to set aside exists to prevent injustice. With no valid service, dismissal was improper and the suit was reinstated, though directions await judgment in a related prior suit.

p. 3
02

Whether the Ivita v Kyumbu test on prolonged and inexcusable delay applies

Holding

The court adopted the test but resolved the motion on the narrower ground of defective NTSC service

Reasoning

The court reviewed the established jurisprudence: delay must be prolonged and inexcusable, and justice must still be achievable despite it. Both parties' positions and the risk of faded memories and missing evidence must be weighed. However, having reviewed the record, the court found dispositive the fact that the NTSC was never served, making a detailed delay analysis unnecessary.

p. 3

Legal principles established

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  • The discretion to set aside dismissal orders is to be exercised to avoid injustice from accident, inadvertence or excusable mistake, not to assist a party who deliberately obstructed or delayed justice
  • Where no valid notice to show cause is served as required by Order 17 Rule 2(1), a dismissal for want of prosecution is improper and may be set aside

Court orders

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  1. 1.The entire court orders of 24 March 2025 are set aside and the matter reinstated for hearing on the merits
  2. 2.Further directions for hearing shall be issued after judgment in ELC CASE NO E054 OF 2022 is rendered
  3. 3.A mention date shall be issued

Authorities

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Legislation

  • Constitution of KenyaArticles 48 and 50
  • Civil Procedure ActSections 1A and 3A
  • Civil Procedure RulesOrder 12 Rule 7; Order 17 Rule 2(1) and 2(6)

Cases cited (3)

  • Shah v Mbogo and Another [1967] EA 116 Limited [2020] eKLR
    [1967] EA 116; [2020] eKLR
  • John Waweru Njenga & 5 others v Motor Botique
  • Ivita v Kyumbu [1975] KEHC 4 (KLR)
    [1975] KEHC 4 (KLR)
Jurisdiction invoked
Articles 48 and 50 of the Constitution, Sections 1A and 3A of the Civil Procedure Act, Order 12 Rule 7 of the Civil Procedure Rules

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, "Faith & Hope Properties Kenya Limited & 7 others v Waweru & another (Environment and Land Case E058 of 2022) [2026] KEELC 2766 (KLR)", Case Analysis (2026). Not stated in judgment (ELC matter; related suit ELC CASE NO E054 OF 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2766/eng@2026-05-12

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