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ELCDismissedNot stated in the judgment as provided· [2026] KEELC 3586 (KLR)

Kathuku (Suing as the Legal Administrator of the Estate of Kathuku Musau Dammas - Deceased) v Musyoka & another (Environment and Land Case E171 of 2023) [2026] KEELC 3586 (KLR)

Environment and Land Court (or High Court), Nairobi
11 June 2026
MKMohammed N. Kullow
928 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Applicant, plaintiff in a suit concerning property of a deceased person, sought by Notice of Motion dated 1st October 2024 to set aside an order of 24th September 2024 dismissing the suit and to have it reinstated for hearing on the merits, on grounds that she was never served with the Notice to Show Cause, that the beneficiaries risked losing the property, and that she was keen to prosecute the suit. The 2nd Respondent opposed, deposing through Chabi Otieno that the applicant had not explained the inordinate delay and had demonstrated unwillingness to prosecute the matter. The application was canvassed by written submissions, with only the applicant complying, relying on Order 10 Rules 8, 9, 10 and 11 of the Civil Procedure Rules and the Doa Doa Tented Camps decision. Framing the sole issue as whether the application was merited, the court held that reinstatement is discretionary and must be exercised judicially per Shah v Mbogo. On the record, the Notice to Show Cause had been served on the applicant's advocates by email on 12th August 2024, and the applicant had even filed an amended plaint despite service. More fundamentally, the dismissal had followed the court's ruling of 7th May 2024 in which it held it lacked jurisdiction, there being a High Court succession cause at Milimani concerning the suit property. Having downed its tools, the court could not reinstate the suit. The application was dismissed with each party bearing their own costs.

Key legal issues

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01

Whether the applicant demonstrated grounds warranting exercise of discretion to reinstate the suit

Holding

The application is not merited; the applicant was served with the Notice to Show Cause, there was inordinate delay, and the court had already held it lacked jurisdiction

Reasoning

The court considered the discretionary principles in Shah v Mbogo: discretion exists to avoid injustice from inadvertence or excusable mistake, not to assist those who obstruct or delay justice. The record showed the Notice to Show Cause was served via email on the advocates, and the court had previously held it lacked jurisdiction in favour of the High Court succession cause. Inordinate delay and absence of substantiated grounds meant the overriding objective did not assist the applicant.

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Legal principles established

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  • Reinstatement of a suit is a discretionary power that must be exercised judicially, considering reasonable grounds for reinstatement and prejudice to the parties
  • A court that has determined it lacks jurisdiction and downed its tools cannot reinstate the same suit

Court orders

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  1. 1.The Notice of Motion dated 1st October 2024 is dismissed
  2. 2.Each party to bear their own costs
Jurisdiction invoked
Not expressly stated; the court previously held it lacked jurisdiction given Milimani High Court Succession Cause No. 1392 of 2019 concerning the suit property

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, "Kathuku (Suing as the Legal Administrator of the Estate of Kathuku Musau Dammas - Deceased) v Musyoka & another (Environment and Land Case E171 of 2023) [2026] KEELC 3586 (KLR)", Case Analysis (2026). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3586/eng@2026-06-11

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