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ELCPartially AllowedPET.189.2013-NBI· [2026] KEELC 4991 (KLR)

Intercity General Company Ltd v Attorney General (Sued for and on Behalf of Kenya Air Force & Department of Defence) (Petition 189 of 2013) [2026] KEELC 4991 (KLR)

Environment and Land Court
30 July 2026
JKJ. G. Kemei
1,901 words in judgment
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The bottom line

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Kenya's Environment and Land Court reinstated a land petition dismissed for non-attendance, but paused the old injunction until parties update the court.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nairobi, delivered by J. G. Kemei J, determines the Petitioner's application dated 29/10/2025 seeking reinstatement of a petition dismissed on 28/10/2025 for want of prosecution/non-attendance, and reinstatement of temporary injunction orders originally issued on 24/11/2011 restraining demolition of the Petitioner's property. The Petitioner's Advocate explained that he and his client, under the mistaken belief that the hearing would be virtual, were absent when the matter was called at 1.35 pm. The Respondent maintained the dismissal was lawful under Order 12 Rule 3(1) of the Civil Procedure Rules. The Court framed two issues: whether the petition should be reinstated, and whether the temporary injunction should be reinstated. Applying Order 12 Rule 7, Section 3A of the Civil Procedure Act and the principles in Mbogo v Shah and related authorities, the Court found the reason for non-attendance credible, inadvertent and excusable, noting the suit had pended since 2013 and that dismissal is a draconian act. Invoking Article 159(2)(d), the Court set aside the dismissal and reinstated the suit on condition that it be set down for hearing within 15 days, failing which it would stand dismissed. However, the temporary injunction was not immediately reinstated; the parties are to address the Court on the current state of the properties first. Costs were ordered in the cause.

Key legal issues

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01

Whether the dismissal of the suit for non-attendance should be set aside

Holding

Yes; the Petitioner's reason for non-attendance was excusable and inadvertent, and the application was filed without undue delay

Reasoning

The suit had been pending since 2013 without hearing, and the Court could not conclude the Petitioner was to blame. The Advocate's mistaken belief that the hearing was virtual was credible and believable. Article 159(2)(d) mandates substantive justice, and dismissal drives a litigant from the seat of justice.

p. 5
02

Whether the temporary injunction orders should be reinstated

Holding

Not immediately; the parties are to address the Court on the current position regarding the properties first

Reasoning

The temporary injunction orders had subsisted since 2011. Given the length of time, reinstating them without updated information risked issuing orders in vain or in a vacuum.

p. 6

Legal principles established

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  • Reinstatement of a suit is discretionary and the discretion is exercised judicially to do justice between the parties, avoiding hardship from accident, inadvertence or excusable mistake
  • Dismissal for want of prosecution is a draconian act and should be a last resort

Court orders

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  1. 1.The application dated 29/10/25 partially succeeds in the interests of justice
  2. 2.The dismissal orders are set aside and the suit reinstated on condition that the Applicant sets the matter down for hearing expeditiously within 15 days, in default of which it shall stand dismissed
  3. 3.The parties to address the Court on the current situation regarding the properties before reinstatement of the temporary injunction orders
  4. 4.Costs in the cause
Jurisdiction invoked
Inherent powers under Section 3A of the Civil Procedure Act; Article 159(2)(d) of the Constitution

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, "Intercity General Company Ltd v Attorney General (Sued for and on Behalf of Kenya Air Force & Department of Defence) (Petition 189 of 2013) [2026] KEELC 4991 (KLR)", Case Analysis (2026). PET.189.2013-NBI. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4991/eng@2026-07-30

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