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ELCPartially AllowedPET.189.2013-NBI· [2026] KEELC 5038 (KLR)

Mubea v Attorney General (Sued for and on behalf of Kenya Air Force & Department of Defence) (Petition 190 of 2013) [2026] KEELC 5038 (KLR)

Environment and Land Court
30 July 2026
JKJ. G. Kemei
1,903 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court reinstated a land suit dismissed after a missed hearing, but refused to revive a 14-year-old injunction without updated facts.

What this practically means

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Executive summary

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This is a ruling on the Petitioner's notice of motion dated 29 October 2025 seeking reinstatement of the petition and restoration of temporary injunction orders, following dismissal of the suit on 28 October 2025 for want of prosecution/non-attendance under Order 12 Rule 3(1) of the Civil Procedure Rules. The Petitioner's Advocate explained that he and his client were waiting for a virtual hearing, unaware the matter had been listed for physical hearing, and only learnt of the dismissal through the Court Tracking System. The Respondent's Counsel maintained the dismissal was lawful since the Petitioner's side had confirmed readiness in the morning but absented themselves when the matter was called at 1.35 pm. The Court framed two issues: reinstatement of the petition and restoration of the temporary injunction. Applying Order 12 Rule 7 and the principles in Shah v Mbogo and Esther Wamaitha Njihia v Safaricom, the Court found the reasons for non-attendance credible, inadvertent and excusable, and further noted the petition, filed in 2013, could not fairly be attributed to the Petitioner alone. Invoking Article 159(2)(d) and the principle that dismissal for want of prosecution is a draconian act, the Court set aside the dismissal and reinstated the suit conditionally, requiring the Applicant to fix the matter for hearing within 15 days failing which it stands dismissed. The temporary injunction, which had subsisted since 2011, was not restored; the parties must first address the Court on the current state of the properties. Costs were left in the cause.

Key legal issues

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01

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

Holding

Yes - the Applicant's explanation for non-attendance was credible and excusable, warranting reinstatement on terms

Reasoning

The suit was filed in 2013 and had not been concluded. The Petitioner's Advocate was under the mistaken belief that the hearing would proceed virtually. The Court found this reason excusable and inadvertent, not intended to pervert the course of justice. Relying on Shah v Mbogo and Article 159(2)(d), the Court exercised its discretion in favour of reinstatement, conditional on setting the matter down within 15 days.

p. 5
02

Whether the temporary injunction orders should be reinstated

Holding

Not reinstated immediately - parties to address the Court on the current status of the properties first

Reasoning

The temporary orders had subsisted since 2011. Given the length of time, the Court considered it necessary for the parties to update it on the current situation regarding the properties, so that any orders issued would not be made in vain or in a vacuum.

p. 6

Legal principles established

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  • Discretion to set aside dismissal is exercised to avoid injustice from inadvertence or excusable mistake, to do justice to the parties
  • Dismissal for want of prosecution is a draconian act and should be used sparingly

Court orders

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  1. 1.The orders dismissing the Applicant's suit are set aside
  2. 2.The suit is reinstated on condition that the Applicant sets the matter down for hearing expeditiously, within 15 days, in default it shall stand dismissed
  3. 3.The parties are to address the Court on the current situation regarding the properties before any reinstatement of temporary injunction orders
  4. 4.Costs are in the cause
Jurisdiction invoked
Inherent jurisdiction under Section 3A of the Civil Procedure Act and 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, "Mubea v Attorney General (Sued for and on behalf of Kenya Air Force & Department of Defence) (Petition 190 of 2013) [2026] KEELC 5038 (KLR)", Case Analysis (2026). PET.189.2013-NBI. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5038/eng@2026-07-30

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