K’opot v Otieno (Environment and Land Case 002 of 2022) [2025] KEELC 8092 (KLR)

g. The defence does not stand to sufier any undue loss as they have admitted the Plaintifi's case save for the question of the quantum of damages payable and he has also filed a counterclaim in this same suit which means that the matter is still to be in Court until the counterclaim is determined. h. It is in the broader interest of justice that the matter be heard and a determination be made on the merits rather than the summary procedure of striking out. i. The Plaintifi has always been ready to prosecute his suit and the delay in taking ofi to date has been occasioned initially by the proceedings that were pending in Kisumu ELC No. 74 of 2016 and lately by the failure of the Defendant to file his Defence. j. The Plaintifi is ready to abide by all conditions that the Honourable Court will impose for reinstating his suit including orders as to expeditious disposal thereof. 2. The application is further supported by the afidavit sworn by Ms. Juliet Akinyi Dima Advocate for the Plaintifi in the present proceedings. In her afidavit counsel outlines the history of the matter and its nexus to Kisumu ELC No. 74 of 2016 and the subsequent stay of the proceedings in this matter on 10th of March 2022 awaiting the outcome of the judgement in Kisumu ELC No. 74 of 2016. 3. It is deponed the orders of stay were made in the context that the hearing and determination of the Plaintifi's suit should abide the outcome of Kisumu ELC No. 74of 2016 since the issue of title to land parcel number North Gem/ Malunga /571 was central to the determination of the question of whether the Defendant herein was guilty of trespass as sued and that issue was pending determination in that Court at least in so far as the portion of the land parcel in contention between the parties herein is concerned. That the present suit was kept in mention mode for several sittings subsequent thereto upto the 28th of January 2025 when the Court was informed the judgement in Kisumu had afirmed the Plaintifi's rights of proprietorship over the suit Land. The Defendant had not filed his defence his request to file one was allowed. That the defendant was also given time to consult on how best he would proceed. That two mentions followed on the 12th of February, 11th of March and 1st of April 2025 in that regard. 4. Counsel depones that she did not attend Court for the mention of 27th May 2025 but she later learnt from the CTS that the Defendant was granted leave to file and serve his defence on that day. That a further mention date was set for the 16th of June 2025. 5. It is averred that the deponent also represents the Plaintifi herein in Kisumu ELC NO74 of 2016 which is now at the execution stage for the decree holders costs whereby the current defendant was scheduled to show cause on the 12th of June 2025 why he should not be committed to civil jail for failing to pay the said costs. A copy of an extract of counsels diary for the said date of 12th June 2025 is annexed. That Instead of diarizing the 16th of June 2025 as the mention date in the present matter counsel inadvertently entered the date of 18th June 2025. A copy of the deponents diary for the said date of 18th June 2025 is annexed. 6. It is deponed that on the said 18th of June 2025 counsel logged onto the Court Virtual Platform and patiently waited for the Court to call this matter out until it ran its cause list. Later the same day at around 14.38 Hrs counsel received an SMS from the judiciary portal that 'Mention Activity has been updated for the case ELCC/E002/2022. That she verily believed that the message was a report of the last activity involving the file in Court which she believed to have taken place on that very 18th of June 2025. A screen shot of the said message is annexed. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8092/eng@2025-11-20 2

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7. It is deponed that on 19th of June 2025 counsel was surprised to receive a message from CTS that case ELCC/E002/2022 had been Terminated/ Struck out/ Dismissed. The screen shot is annexed. 8. It is averred that upon checking the Court CTS counsel noticed that Defendant filed a defence and counterclaim on 12th June 2025 which he is yet to serve to date. A copy is annexed. That the Plaintifi's suit was struck out on 16th June 2025. That she has not been able to establish from the face of the order why the suit was struck out on a date which was for mention to confirm the filing of the Defendant's defence. That upon notifying the plaintifi of the developments, the plaintifi instructed counsel to file the present application for reinstatement of the suit. 9. The application is not opposed despite service. A copy of the Afidavit of service sworn by Cosmas Oyoo Laja filed on 25th June 2025 is on record. 10. On 14/7/2025 I issued directions on disposal of the application on merit and directed the applicant to file submissions and reserved a date for ruling. The applicant complied and filed submissions on 30/7/2025. Analysis And Determination 11. I have considered the foregoing and the submissions filed, the main issue for determination is whether the plaintifi’s suit should be reinstated. 12. The law on setting aside of ex parte orders is found under Order 12, rule 7 of the Civil Procedure Rules, 2010 which provides thus: “ Where under this Order judgment has been entered or the suit has been dismissed, the court, on application, may set aside or vary the judgment or order upon such terms as may be just.” 13. The power donated to the court to set aside is therefore discretionary. 14. In the case of Shah v. Mbogo & Another (1967) EA 116 referred to by the applicants , the court outlined guidelines for consideration in exercising the discretion and the importance for an applicant to show suficient cause. Further that the court must aim at avoiding injustice resulting from an accident, inadvertence or excusable mistake or error. 15. Has suficient cause been demonstrated to warrant the exercise of the courts discretion in favor of the applicant? 16. Briefiy the record shows that on 16/6/2025 the present matter was listed before this court for Mention. This date was fixed on 27/05/2025. The purpose of the Mention as recorded on 27/05/2025 was to give further directions in the presence of the plaintifi. 17. On the said 16/6/2025 the defendant attended court in person. Counsel for the Plaintifi did not attend court. 18. The court proceeded to strike out the suit. The court noted that it had perused the judgement dated 19/12/2024 delivered by Justice S. Okong’o and the pleadings filed in the present suit and came to the conclusion that the proceedings in the present suit are overtaken by events. That this court was functus oficio in all aspects. Consequently, the court proceeded to strike out the suit and directed that the file be closed. 19. It is imperative to note that the suit was not struck out for non attendance of the plaintifi. However, I must observe that had counsel attended court we would not have found ourselves in the present https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8092/eng@2025-11-20 3

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scenario. I say so because counsel would have had an opportunity to defend the next cause of action after the delivery of judgement in the proceedings at Kisumu. 20. Counsel has deponed that her failure to attend court was due to confusion created by the existence of the other related proceedings in Kisumu which led to mis diarizing the dates. Extracts of the diary have been presented. I think this is excusable. Counsel states that the mistake of Counsel should not be visited upon the client. 21. The question as to whether counsels mistake should be visited upon a client has been a subject of many judicial pronouncements where the courts have been unanimous that where the mistake is excusable then it should and the court must at all times lean on upholding justice. See Belinda Murai & Others v Amos Wainaina (1978) KLR 278; Phillp Chemwolo & another v Augustine Kubebe (1982-88) KAR 22. But I think of importance is that the provisions Order 12 envisage a matter that has been called out for hearing. It is clear that the matter had been fixed for Mention and not for hearing. It was therefore erroneous for the court to make substantive orders striking out the plaintifi suits. The court was clearly wrong leading to a miscarriage of justice. See Richard Ncharpi Leiyagu v Independent Electoral Boundaries Commission & 2 Others Civil Appeal No. 18 of 2013 [2013] eKLR). 23. Moreover courts exist to serve substantive justice for all parties to a dispute before it. Both parties deserve justice and their legitimate expectation is that they will each be allowed a proper opportunity to advance their respective cases upon the merits of the matter. This opportunity was not accorded in as far as the striking out of the suit on the basis of the judgement dated 19/12/2024 was concerned. This is the fundamental principle of natural justice as enunciated in Wachira Karani v. Bildad Wachira Civil Suit No. 101 of 2011 [2016] eKLR. 24. It is for the foregoing reasons that I find that the application dated is merited. 25. The application is allowed. There shall be no orders as to costs. Orders accordingly DELIVERED AND DATED AT SIAYA THIS 20TH DAY OF NOVEMBER 2025 HON. LADY JUSTICE A.E. DENA JUDGE 20/11/2025 Ruling delivered virtually through Microsoft teams Video Conferencing Platform in the presence of: Ms. Atieno for the Plaintifi No appearance for Respondent Court Assistant: Ishmael Orwa https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8092/eng@2025-11-20 4

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