Wangai & 3 others v Mukonyoro & 3 others (Environment and Land Case E083 of 2021) [2025] KEELC 7056 (KLR)

allowing the Defendant's application for orders of eviction after the lapse of ninety (90) days of the said orders. The said orders were issued in absence of the Plaintifi's counsel. 4. The Defendant's advocates did not serve the Plaintifis and/or their advocates with the said directions until the Plaintifis herein, to their surprise, woke up on the morning of 27th August, 2025 to notices of eviction posted near their residences. In any case, and in the absence of the Plaintifi's Counsel, the Court ought to have considered the Replying Afidavit filed by the Plaintifi and subsequently give directions on disposal thereof as opposed to issuing the ex-parte orders that it issued suo moto to the detriment of the Plaintifis herein. 5. Lamentably, and by dint of the said orders, the Plaintifis herein and their families are at the verge of being evicted from the suit land, which eviction would greatly prejudice them, their school going children as well as disrupt their daily lives. The non-attendance by the Plaintifis' advocates was not deliberate, but a one-time excusable and inadvertent omission which ought not to be visited upon the Plaintifis herein, 6. The said adverse orders were issued without hearing the Plaintifis, and it is thus equitable and in the interests of justice that the Court sets aside the said orders issued on the 25th June 2025 and grant the Plaintifis audience with regards to the issue of eviction at hand. 7. Besides the foregoing, the judgement herein was appealed before the Court of Appeal wherein an application for stay of execution is already pending for determination. As such, the adverse orders issued on 25th June, 2025 would not only render the Appeal nugatory but also visit untold hardships and injustice upon the Plaintifis. No prejudice would be occasioned upon the Defendants if the application herein is allowed. On the contrary, the Plaintifis stand to sufier irreparable harm and damage should the application herein be disallowed. 8. The respondent filed replying afidavit stating that the application is brought in bad faith, is mischievous and an abuse of the court process, devoid of merit and ought to be dismissed with cost as it is a design conjured to curtail the execution of the decree and order obtained on the merits. 9. That the orders issued by the honorable court on the 29 June, 2025 were not issued 'suo moto' as perceived by the applicants but on the merit after considering the pleadings of both sides even in absence of the counsel for the Plaintifis/Applicants. 10. The Plaintifis’ counsel failure to attend court and participate in the proceedings was unjustified since they were all aware of the existence of the same after service and in return responding to the I St Defendants Application. Court orders issued after one party failed to attend court although aware of the hearing date cannot neither be referred to as orders issued '$310 moto' nor 'exParte' because the Counsel for the Defendants/ respondents appeared/ attended court and moved the court appropriately after the court noted that there was a quorum, a fact admitted by the Applicant. 11. The applicants having failed to attend court, though aware of the hearing date, and defend the suit, the court exercised judicial leniency upon the plaintifis and handed down a further 90 days-grace period during which they were to quietly surrender vacant possession to the plaintifis in the Counter-claim. 12. The applicants have always been aware that the 90 days period initially handed down to them by the court suo moto in a judgment delivered on the 6th February, 2025 ran out on 6 May 2025 and therefore the I St Defendants application dated the 8th May, 2025 was a matter of procedure to give efiect to an eviction order issued on the February, 2025. 13. The court while allowing the prayers sought in the 1st Defendants application dated May 2025 graciously granted a further 90 days stay in addition to the initial 90 days allowed making it a total https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7056/eng@2025-10-16 2

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of 180 days grace period which was suficient time for the Plaintifis to abide by the court's direction. After learning that the additional 90 days window period is again on the verge of lapse, the Plaintifis are initiating another attempt to frustrate the execution of the lawful orders of this court and enjoyment of the fruits of judgment by the 1 Defendant's. It is evident that this is a total abuse of the court's process as the Plaintifis are not coming to court with clean hands. The Plaintifi's application herein has been further compromised by the Plaintifis' very own members who have vacated the 1 Defendants' suit parcel contained in PI.)P R23/200T / 3 in compliance with the Court order herein to beat the additional 90 days period stipulated in the said Order. 14. I have considered the application and the replying afidavit and do find the Court of Appeal is seized of this matter and has made an order of status quo to be maintained on the suit property pending the hearing and determination of the appeal. This court cannot act in vain. I do not make any order as this court is functus oficio. Signed by/for: HON. JUSTICE ANTONY O. OMBWAYO THE JUDICIARY OF KENYA. NAKURU ENVIRONMENT AND LAND COURT DATE: 2025-10-16 12:20:15 https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7056/eng@2025-10-16 3

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