Thindiu v Ministry of Labour & Social Protection & another (Environment and Land Case 106 of 2018) [2025] KEELC 8434 (KLR) (3 December 2025) (Ruling) Neutral citation: [2025] KEELC 8434 (KLR) REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT KWALE ENVIRONMENT AND LAND CASE 106 OF 2018 CK NZILI, J DECEMBER 3, 2025 BETWEEN STEPHEN KAMAU THINDIU ................................................................ PLAINTIFF AND MINISTRY OF LABOUR & SOCIAL PROTECTION ................. 1ST DEFENDANT HON ATTORNEY GENERAL ....................................................... 2ND DEFENDANT RULING 1. This matter was slated for hearing on 27/7/2025. However, it could not be heard since the plaintifi was unable to attend either virtually or otherwise due to his age, mobility, and communication challenges. The court directed that the matter be heard virtually on 3/11/2025. 2. Come 3/11/2025, the matter could not be heard due to an application dated 10/8/2025, said to have profound efiects on the matter, and which should be heard and disposed of first. The court is asked to set aside its orders of 26/6/2025 dismissing the application dated 18/2/2025 and to reinstate it for hearing on merits. The reasons are contained on the face of the application and in a supporting afidavit of Wanjiku Mwangi, sworn on 10/8/2025. 3. It is said that the application was initially scheduled for hearing on 31/3/2025, which was declared a public holiday, then it was rescheduled for hearing on 26/6/2025. The applicant deposes that the cause list for the day indicated that the matter would come at 9:00 a.m., but the court commenced hearing at 8:30 a.m., hence by 9:00 a.m., when counsel for the applicant logged in, the matter had already been dismissed for non-attendance. 4. The applicant deposes that he explained the discrepancy in the cause list to the court, but was firm that the application had not been served upon the defendants. The applicant attached the cause list and an afidavit of service as annexures marked WM-(1) and (2). https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8434/eng@2025-12-03 1
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5. The applicant deposes that the non-attendance was not willful but due to circumstances beyond his control, and the plaintifi should not be punished. The applicant deposes that while the intended 3rd defendant in the application dated 18/2/2025 had not yet been traced, once the application is allowed, leave would be sought to serve through substituted service. 6. The applicant deposes that the application is brought on sound facts, there will be no prejudice to the respondents, and the court should strive for substantive justice as per Article 159 of the Constitution. 7. The plaintifi relies on written submissions dated 24/10/2025. Reliance is placed on Wachira Karani vs- Bildad Wachira [2016] eKLR, Patel -vs- EA Cargo Handling Services Ltd [1974] E.A. 75, Philip Chemwolo & Another -vs- Augustine Kubende [1986] [KLR], Giro Commercial Bank Ltd -vsJasvinder Singh Dhadialla [2005] eKLR, and James Njuguna vs Medicino Giovanni, Nairobi C.A. No. 216 of 1997. 8. The discretion of the court deciding whether or not to set aside an ex parte order is meant to ensure that a litigant does not sufier injustice or hardship as a result of any other thing on an excusable mistake or error. In CMC Holdings Ltd -vs- James Mumo Nzioki [2004] eKLR, the court said that it would not be a proper use of such discretion if the court turns its back on a litigant who clearly demonstrates such an excusable mistake, inadvertence, accident, or error. 9. Section 3A of the Civil Procedure Act grants the court inherent power to make such orders as may be necessary for the ends of justice or to prevent the abuse of the court process. Courts are there to do justice to the parties by allowing them to present their cases for hearing on the merits. 10. In Richard Nchapi Leiyagu -vs- Independent Electoral and Boundaries Commission & 2 others [2013] KECA 282 [KLR], it was observed that a court has a general power to control its own procedure, to prevent it from being used to achieve injustice and to maintain its character as a court of justice. The court held that the right to a fair hearing is the cornerstone of the rule of law. The right also includes the inherent jurisdiction to dismiss suits in circumstances that protect the integrity of the court process from abuse that would amount to injustice, and at the end of the day, there should be proportionality. 11. The court said that dismissing the petition did not advance the overriding objectives in the administration of justice, nor did it save the court’s time. 12. In Belinda Murai & Others -vs- Amos Wainaina [1978] LLR 2782, the court held that the doors of justice should not be closed out of mistakes by counsel; otherwise, courts also make mistakes. 13. In this suit, the plaintifi blames the court for starting the time earlier than what was in the cause list. 14. In Abdirahman Abdi -vs- Safi Petroleum Products Ltd & 6 others [2011] eKLR, the court, while discussing Article 159 of the Constitution, said that courts have to do justice to the parties before weighing the prejudice that is likely to be sufiered by the innocent party against the prejudice to be sufiered by the ofiending defendant, or the court strikes out its document. 15. Evidence to show when the plaintifi’s counsel logged in has not been provided. That notwithstanding, suficient cause for not attending court is blamed on the discrepancy in the timings on the cause list of the day. In Wachira Karani (supra), the court cited Parimal -vs- Veena [2011] 3 SCC 545, that suficient cause refers to adequate, or enough or and that a party has not acted negligently, or there was want of bona fide on its part in view of the facts and the circumstances of a case or the part did not remain inactive or was not diligent. 16. A plausible explanation of not attending court on time has been ofiered by the plaintifi. I find the application meritorious. The order issued on 26/6/2025 is hereby set aside, with no order as to costs. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8434/eng@2025-12-03 2
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17. The application dated 18/2/2025 is to be canvassed by way of written submissions. 18. Orders accordingly. RULING DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT KITALE ON THIS 3RD DAY OF DECEMBER 2025. HON. C.K. NZILI JUDGE, ELC KITALE. In the presence of: Court Assistant - Dennis Mwangi for Macharia for applicant present Chilaka for Attorney General absent https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8434/eng@2025-12-03 3
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