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ELCPartially AllowedNot stated in judgment· [2026] KEELC 5238 (KLR)

Kamau & 8 others v Njoki & 6 others (Environment and Land Case E233 of 2024) [2026] KEELC 5238 (KLR)

Environment and Land Court (court name not stated in the extract; judge sitting at Nairobi)
6 August 2026
JKJ. G. Kemei
1,450 words in judgment
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The bottom line

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The Environment and Land Court reinstated a land suit dismissed for delay, but only on strict conditions: pay costs, file documents, and fix a hearing date within seven days.

What this practically means

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Executive summary

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The Plaintiffs applied by notice dated 6/2/26 to set aside the proceedings of 4/2/26, by which their suit was dismissed for want of prosecution after their advocate admitted he had not filed witness statements, and the 1st Defendant's defence and counterclaim was heard. The Plaintiffs blamed the former advocate's inexcusable mistake and neglect, argued the error should not be visited on innocent litigants, and invoked the court's inherent powers under Sections 1A, 1B and 3A of the Civil Procedure Act, contending that dismissal was disproportionate. The 1st Defendant opposed, pointing out that the Plaintiffs had repeatedly been accommodated and still failed to comply with directions. The court framed a single issue: whether the suit should be reinstated. It applied Order 12 Rule 7 of the Civil Procedure Rules and Section 3A of the Act, and relied on Esther Wamaitha Njihia v Safaricom Ltd, Lucy Bosire v Kehancha Division Land Dispute Tribunal, CMC Holdings v Nzioki and Shah v Mbogo, holding that the discretion to set aside exists to relieve a litigant of accident, inadvertence or excusable mistake, and that denying a litigant a hearing should be a last resort, reinforced by the Article 50(1) right to be heard. Purely in the interest of justice, the court allowed the application but on terms: the dismissal of 4/2/26 was set aside and the suit reinstated, conditional on the Plaintiff paying throw-away costs of Kshs. 30,000/= within 7 days, filing the outstanding documents within 7 days, and fixing the matter for hearing within 7 days, failing which the reinstatement orders lapse. Delivered at Nairobi on 6 August 2026 by J. G. Kemei, Judge.

Key legal issues

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Whether the dismissal of the Plaintiffs' suit for want of prosecution should be set aside

Holding

Yes, on terms, because the failure to comply with directions was attributable to counsel's mistake and the right to be heard should only be denied as a last resort

Reasoning

The court applied Order 12 Rule 7 and Section 3A of the Civil Procedure Act. Relying on Esther Wamaitha Njihia v Safaricom, Lucy Bosire v Kehancha Land Dispute Tribunal, CMC Holdings v Nzioki and Shah v Mbogo, it held the discretion exists to relieve a litigant of an excusable mistake by counsel. Article 50(1) guarantees the right to be heard. The dismissal was disproportionate given the default lay with the former advocate, so reinstatement was granted conditional on costs and strict timelines.

p. 3

Legal principles established

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  • Reinstatement of a dismissed suit is discretionary and is exercised to avoid injustice from excusable mistake, not to reward deliberate delay, with denial of a hearing as a last resort

Court orders

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  1. 1.The order dated 4/2/26 dismissing the Plaintiffs' suit is set aside and the suit is reinstated on conditions
  2. 2.The Plaintiff to pay the Defendant's throw-away costs of Kshs. 30,000/= within 7 days
  3. 3.Leave granted to file witness statements, a list of documents and a reply to the counterclaim within 7 days
  4. 4.The Applicants to fix the matter for hearing within 7 days, in default the reinstatement orders shall lapse
Jurisdiction invoked
Inherent powers under Sections 1A, 1B and 3A of the Civil Procedure Act; Order 12 Rule 7 of the Civil Procedure Rules; Article 50(1) 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, "Kamau & 8 others v Njoki & 6 others (Environment and Land Case E233 of 2024) [2026] KEELC 5238 (KLR)", Case Analysis (2026). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5238/eng@2026-08-06

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