Maranga (Suing on His Behalf as the Administrator and Beneficiary of the Estate of Daniel Maranga Kamau) v Mugo & another (Environment & Land Case 504 of 2017) [2025] KEELC 3443 (KLR)

The gist of the grounds and the afidavit is as follows. One, this court dismissed this suit on 28-11-2023 for want of prosecution. Two, the Plaintifi has always been keen on prosecuting the suit and there was confusion caused by the matter proceeding in this court and Kangema Magistrate’s Court. Three, the Plaintifi and his advocate only became aware of the dismissal of this suit when they visited the ELC registry at Murang’a for filing of the notice of motion dated 9/2/2024. Four, the Plaintifi had already withdrawn the Kangema case and if this suit is not reinstated, he will sufier irreparable loss as the subject matter is ancestral land on which they live and have heavily invested in. Five, the ruling of 22-11-2018 failed to consider the reasons that prompted the application to withdraw the Kangema Magistrate’s Court case. For the above and other reasons, the Plaintifi prays that the motion be allowed and the suit be heard on merit. 4. The motion is opposed by the Defendants who have filed grounds of opposition dated 18-3-2024 and a replying afidavit by the second Defendant also dated 18-3-2025. The basis for opposing the motion is as follows. One, the threshold in Order 45 rule 1 of the Civil Procedure Rules for reviewing the dismissal order has not been met. Two, there has been inordinate delay on the part of the Plaintifi. 5. Counsel for the parties filed written submissions dated 6-9-2024 and 20-9-2024 respectively. The issues identified in the submission are as follows. a. Whether this suit should be reinstated. b. Whether the ruling date 22-11-2018 staying this suit should be reviewed. 6. I have carefully considered the motion in its entirety including the grounds in support, the supporting afidavit, the replying afidavit, the grounds of opposition, the entire record, the submissions by learned counsel for the parties and the law cited therein. I make the following findings on the issues raised. 7. On the 1st issue, I find that the suit should be reinstated for the following reasons. Firstly, the Plaintifi claims not to have been aware that the case was listed for notice to show cause on 28-11-2023. Though there was service via email on 22-9-23, it is still possible that counsel for the Plaintifi did not read the said mail. Secondly, the record shows that the Plaintifi’s side has always appeared in court as and when required. All the efiorts and struggles to be heard over the years since 2012 should not be overlooked because of one incident. Thirdly, this suit involves land which is said to have been occupied by the Plaintifi for a long time. To fail to hear the suit and to lock out a party craving to be heard would be falling short of Article 50(1) of the constitution which guarantees every person having a dispute that can be resolved by the application of the law, a fair hearing. A fair hearing should excuse a small mistake like failing to attend the court once. Finally on this point, no prejudice will be occasioned to the Defendants because, they too will be heard. 8. On the second issue, I find that the order of 22-11-2018 should be reviewed because there is an error apparent on the face of the record. On 30/7/2014 the Principal Magistrate Kangema found that he had no jurisdiction in the matter. Then on 13-8-2018, the then Plaintifi filed a notice of withdrawal of the suit at Kangema Court. This means that when this court directed the Kangema Court to proceed with case No. SPMCC 30/2012, there was no such suit. This amounts to an error apparent on the face of record and calls for review of the order of 22-11-2018 under Order 45 rule 1 of the Civil Procedure Act. For the above stated reasons, I find merit in the notice of motion dated 23-2-2024 which I allow in terms of prayers 1,2 and 3. Costs in cause. DATED, SIGNED AND DELIVERED VIRTUALLY AT MURANG’A THIS 23RD DAY OF APRIL , 2025. M.N. GICHERU https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3443/eng@2025-04-23 2

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JUDGE Delivered online in the presence of; Court Assistant – Mwangi Njonjo Plaintifi’s Counsel – Miss Karita Defendants’ Counsel – Mr. Muirur https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3443/eng@2025-04-23 3

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