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ELCDismissedNotice of Motion application dated 4th March 2025, arising from Mombasa Petition No. 13 of 2012 (former High Court Petition, transferred to the Environment and Land Court)

Zakumera (Suing as the Administrator of the Estate of the Late Iddi Ashid Mwavumbani) v Gitau (Land Case E017 of 2025) [2026] KEELC 3886 (KLR)

Environment and Land Court of Kenya
17 June 2026
7,983 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~32 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court dismissed a bid to revive a 2012 land petition because the litigant skipped required procedures, hid a rival case, and waited six years.

What this practically means

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Executive summary

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The Applicant, administrator of his late father's estate, brought a Notice of Motion dated 4th March 2025 under Sections 1A, 1B and 3A of the Civil Procedure Act seeking reconstruction of the missing court file in Mombasa Petition No. 13 of 2012 and its transfer to the Environment and Land Court at Kwale (or Magistrates' Court at Kwale) for hearing. The Respondent opposed, deponing that the petition had been dismissed twice for want of prosecution — on 30th November 2016 and again on 8th November 2018 by Hon. Justice Nelly Matheka — that the dismissal was never set aside, that he was 85 years old, and that he had separately prosecuted ELC Case No. 185 of 2018 over the same property to judgment in April 2020, extracting a decree and obtaining a provisional title deed. The court framed three issues and found that reconstruction of lost files is an internal, administrative affair governed by the High Court Registry Operations Manual, which requires a Deputy Registrar's certificate of loss — a jurisdictional prerequisite the Applicant did not obtain. It further held that the suit was dead, the dismissal unchallenged, so reconstruction would be futile; that the transfer prayer was constitutionally incompetent as a downward transfer from a superior court and amounted to forum shopping; that the Applicant's failure to disclose ELC Case No. 185 of 2018 breached the clean-hands maxim; and that the unexplained six-year delay evidenced bad faith and prejudice. The application and the suit were dismissed in their entirety, with costs to the Defendant/Respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Notice of Motion application dated 4th March, 2025 was merited?
  2. 2.Whether the parties were entitled to the reliefs sought
  3. 3.Who will bear the costs of the Notice of Motion application dated 4th March, 2025?

Key legal issues

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01

Whether reconstruction of a missing court file could be ordered on the Applicant's application

Holding

Reconstruction is an internal administrative function governed by the High Court Registry Operations Manual; the Applicant produced no certificate of loss and took no formal administrative steps, so the application was premature and procedurally defective

Reasoning

The court held that reconstruction of lost files is a purely internal, managerial and administrative affair for the Deputy Registrar's office, guided by the Registry Operations Manual, which requires a search, memo circulation, special search and ultimately a Deputy Registrar's certificate of loss after a fruitless 14-day search. None of these steps was demonstrated. The certificate of loss is a jurisdictional prerequisite. Further, the underlying suit had been dismissed on 8 November 2018 and that dismissal was never set aside, so reconstruction would be futile.

p. 8
02

Whether the transfer of the petition to the Magistrates' Court at Kwale could be ordered

Holding

The transfer prayer was constitutionally incompetent and constituted forum shopping; the proper forum for reinstatement is the Environment and Land Court, Mombasa

Reasoning

The petition was transferred to the ELC at Mombasa and dismissed there twice; the second dismissal of 8 November 2018 subsists unchallenged. The Applicant stayed silent for over six years while the Respondent prosecuted ELC Case No. 185 of 2018 to judgment, decree and title. Seeking reconstruction and transfer to Kwale without addressing the dismissal or the parallel proceedings amounted to forum shopping and an abuse of process. Jurisdiction cannot be manufactured by a litigant, and a superior court matter cannot be sent downward to a subordinate court.

p. 11
03

Whether the Applicant's failure to disclose ELC Case No. 185 of 2018 disentitled him to discretionary relief

Holding

Yes; suppression of material facts breached the clean-hands maxim and disqualified the Applicant from the court's discretion

Reasoning

The Respondent deponed that he filed ELC Case No. 185 of 2018 over the same property, which went to judgment in April 2020 in his favour, with a decree extracted on 17 June 2020 and a provisional title deed issued. The Applicant's Supporting Affidavit was entirely silent on these proceedings. The court found the suppression troubling and held that a party approaching the court for equitable discretionary relief must come with clean hands, which the Applicant did not.

p. 12
04

Whether the six-year delay affected the application

Holding

The unexplained delay of over six years evidenced bad faith and prejudice to the 85-year-old Respondent; litigation must come to an end

Reasoning

Following the second dismissal on 8 November 2018, the Applicant took no step for over six years and offered no explanation of illness, impecuniosity or ignorance. Citing Thuita Mwangi v Kenya Airways, the court held that a party reviving stale proceedings must explain the delay and show no prejudice; neither condition was met. The principle interest reipublicae ut sit finis litium applies and is not displaced by Article 159(2)(d) on procedural technicalities.

p. 13
05

Costs of the application

Holding

Costs follow the event; the Respondent was entitled to costs of the application and the suit

Reasoning

Under Section 27 of the Civil Procedure Act, costs are discretionary and ordinarily follow the event unless the court for good reason orders otherwise. Since the application and the suit were dismissed, the Respondent was entitled to costs.

p. 14

Legal principles established

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  • A certificate of loss issued by the Deputy Registrar is a jurisdictional prerequisite to an application for reconstruction of a court file
  • A dismissed suit cannot be reconstructed and transferred without first setting aside the dismissal; an application to set aside or reinstate must be made to the court that made the order
  • A matter adjudicated before a superior court cannot be transferred downward to a subordinate court
  • A litigant seeking equitable discretionary relief must come with clean hands and disclose material facts
  • Where an application constitutes forum shopping, the court has a positive duty to dismiss it to protect the finality of litigation

Court orders

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  1. 1.The Notice of Motion application dated 4th March 2025 and the suit in its entirety is dismissed
  2. 2.Costs are awarded to the Defendant/Respondent to be borne by the Plaintiff

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Sections 1A, 1B & 3A of the Civil Procedure Act, Cap. 21 (inherent power / overriding objective)

Relief refused

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Order directing the Deputy Registrar, Environment and Land Court Mombasa to reconstruct the skeleton court file in respect of Petition No. 13 of 2012 and merge it with any skeleton file

Applicant failed to comply with the procedural prerequisites in the High Court Registry Operations Manual, notably no certificate of loss from the Deputy Registrar, which is a jurisdictional prerequisite; and the suit had been dismissed and that dismissal remained unchallenged

p. 9

Order transferring Petition No. 13 of 2012 to the Magistrates' Court at Kwale (Environment and Land Court)

The prayer amounted to forum shopping and was constitutionally incompetent as a downward transfer of a superior court matter; the dismissed suit had no subsisting cause capable of transfer

p. 12

Costs

Costs are awarded to the Defendant/Respondent to be borne by the Plaintifi herein.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

That the Notice of Motion application dated 4th March 2025 and the suit in its entirety is hereby dismissed.
p. 14Disposition - dismissal of the application and suit
That costs are awarded to the Defendant/Respondent to be borne by the Plaintifi herein.
p. 14Costs order
the certificate of loss issued by the Deputy Registrar is not a mere formality — it is a jurisdictional prerequisite to the reconstruction process.
p. 9Reconstruction of court files - certificate of loss
Jurisdiction is not a commodity that a litigant may select at will.
p. 11Forum shopping - jurisdiction
The prayer is not merely irregular — it is constitutionally untenable.
p. 12Downward transfer to subordinate court incompetent
Where a court finds that an application before it constitutes forum shopping, it has not merely a discretion but a positive duty to dismiss the application
p. 13Court's duty on forum shopping

Issues in the judgment

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minor

Conflicting dates for the application: the judgment opens saying the application is dated 4th March 2025, but elsewhere refers to a Notice of Motion dated 17th March 2025 and to directions on 'the Notice of Motion application dated 7th March, 2025'

minor

Costs issue heading misdates the application as 17th March 2023

minor

The judgment records the Petition as filed on 8th August 2023 while elsewhere stating it is Petition No. 13 of 2012 filed 13 years before 2025

minor

The judgment records delivery on 17th June 2026, an apparently unusual future-dated ruling date relative to the 2025 application

minor

Judge's name inconsistently spelled in the record ('EDWARD M. MURITHII' vs 'Hon. Justice E.M. Muriithi' vs 'Hon. Justice Edward M. Muriithi')

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, "Zakumera (Suing as the Administrator of the Estate of the Late Iddi Ashid Mwavumbani) v Gitau (Land Case E017 of 2025) [2026] KEELC 3886 (KLR)", Case Analysis (2026). Notice of Motion application dated 4th March 2025, arising from Mombasa Petition No. 13 of 2012 (former High Court Petition, transferred to the Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3886/eng@2026-06-17

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