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ELCDismissedTHIKA ELC 397 OF 2017· [2026] KEELC 3993 (KLR)

Karugu v Karugu & 4 others (Environment and Land Case 397 of 2017) [2026] KEELC 3993 (KLR)

Environment and Land Court
29 June 2026
JOJ. M. ONYANGO
1,669 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to undo a land case dismissal because the litigant waited 19 months without explaining the delay or showing she followed up her own matter.

What this practically means

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Executive summary

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By a Notice of Motion dated 7th August 2025, the Plaintiff/Applicant sought to have new advocates come on record after judgment, to set aside the ruling of 27th March 2024 dismissing her application for review of the judgment of 9th December 2021, to have the review application heard on merit, preservatory orders over title MUGUGA/KAHUHO/470, and leave to withdraw a Notice of Appeal. She attributed the dismissal of the review application to her former advocates' failure to withdraw the Notice of Appeal before filing the review, urging that counsel's mistakes should not be visited on a litigant. The Defendant/Respondent opposed, characterising the application as an abuse of process and highlighting a 19-month delay in bringing it. The court framed the sole issue as whether sufficient cause had been shown to set aside the dismissal order. While accepting the general principle that a litigant should not bear the consequences of counsel's errors absent deliberate design, indolence or abuse of process, the court held that the discretion is not at large and must rest on sufficient cause. The applicant's explanation addressed only the immediate procedural lapse but left a significant period of inactivity unexplained, with no evidence of steps taken to follow up the matter. Citing Shah v Mbogo and Tana and Athi Rivers Development Authority v Mwakio, the court found that attribution of fault to counsel, without a satisfactory explanation and reasonable diligence, does not entitle a party to relief. The application was dismissed with costs.

Key legal issues

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01

Whether sufficient cause was shown to set aside the dismissal of the application for review

Holding

The application failed; the explanation attributed the lapse to former counsel's error but did not account for a 19-month delay, so sufficient cause was not established

Reasoning

The court accepted that the review application was dismissed on a procedural ground (unwithdrawn Notice of Appeal) rather than on merits, and that counsel's error may explain the immediate dismissal. However, the applicant filed the present application 19 months later with no evidence of follow-up or promptitude upon learning of the dismissal. Counsel's mistake alone, without diligence and a complete explanation, did not justify setting aside the dismissal.

p. 8

Legal principles established

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  • The discretion to set aside a dismissal order must be anchored on material showing sufficient cause and is exercised on a factual foundation, not in a vacuum
  • A litigant should generally not be punished for counsel's mistakes absent deliberate design, indolence or abuse of process, but attribution of fault to counsel alone does not entitle a party to relief without a satisfactory explanation and reasonable diligence
  • Delay calls for a satisfactory explanation; equity aids the vigilant and not the indolent

Court orders

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  1. 1.The application dated 7th August 2025 is dismissed with costs

Authorities

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Cases cited (2)

  • Shah v Mbogo & Another
    [1967] EA 116
  • Tana and Athi Rivers Development Authority v Jeremiah Kimigho Mwakio & 3 others
    [2015] eKLR
Jurisdiction invoked
Inherent discretion of the Environment and Land Court to set aside its own dismissal order (application dated 7th August 2025 under the court's discretionary powers)

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, "Karugu v Karugu & 4 others (Environment and Land Case 397 of 2017) [2026] KEELC 3993 (KLR)", Case Analysis (2026). THIKA ELC 397 OF 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3993/eng@2026-06-29

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