Oundo & 2 others v Kayobio alias Stephen Buluma Ambani & 4 others (Environment and Land Case 133 of 2014) [2026] KEELC 1093 (KLR)

Bukhulungu/1601, 1602 and 1603. The land parcel No Samia/Bukhulungu/1602 was then registered in the name of the 4th Defendant. The Plaintifis therefore sought the restoration of the land parcel No Samia/Bukhulungu/179 into the names of William Oundo, Buluma Kayobio, Timothy Amolo and Willy Kayobio and the cancellation of the resultant sub-divisions being Samia/Bukhulungu/1601, 1602 and 1603. The suit was later amended on 10th September 2013. The record shows that only the 4th Defendant Julias Gilbert Kachero (the 3rd Defendant in the amended plaint) filed a defence denying the allegations of fraud levelled against him and adding that he was an innocent purchaser. 2. The record shows that the suit first came up before S. M. Kibunja J on 9th July 2014 but was Stood over Generally (SOG) as all the parties were absent. It next came up before A. K. Kaniaru J on 30th November 2016 and the record of proceedings show that although all the parties were served with a notice dated 8th November 2026 to show cause why the suit should not be dismissed, none of them appeared. The Judge therefore dismissed the suit. 3. I now have for my determination the Plaintifis’ Chamber Summons dated 27th July 2025 and premised under the provisions of Order XLIV Rules 1 and 2 and Order 1XB Rule 8 of the Civil Procedure Rules as well as Sections 1A, 1B and 3A of the Civil Procedure Act. The Plaintifis seek the following orders: 1. Spent 2. That the order dismissing the Plaintifis’ suit on 30th November 2016 for want of prosecution/ non attendance on the part of the Plaintifis herein be and is hereby set aside. 3. That the suit be reinstated and proceed for full hearing and disposal. 4. That the matter be heard expeditiously on priority basis. 5. That costs of this application be in the cause. 4. The Motion is based on the grounds set out therein and is supported by the afidavit of the 2nd plaintifi. 5. The gravamen of the Motion is that when the case came up for hearing, his then counsel Mr Wanyama did not attend Court for unknown reasons and inspite having instructions to do so. That the mistake of counsel should not be visited on a helpless innocent client. That it took them several inquiries over the years and from his counsel to know the progress of this case and has only been given false information, that in 2025 they were informed that this case which was previously HCCC No 8 of 2012 had been changed to ELC Case No 133 of 2014 without informing the parties and this made it dificult for them to trace this file. It is therefore only fair that this suit be reinstated and heard on it’s merit. The Plaintifis are ready and willing to abide by any conditions which this Court may set. 6. The following documents are annexed to the Motion: 1. Copy of a letter dated 19th June 2025 from the Deputy Registrar and addressed to Waswa Abed & Company Advocates. 2. Copy of a letter dated 30th June 2025 from the Deputy Registrar and addressed to Waswa Abed & Company Advocates. 7. The Motion is opposed and the 3rd Defendant Julius Gilbert Kachero filed a replying afidavit dated 28th August 2025 in which he has averred, inter alia, that the same should be dismissed with costs for having been filed after an inordinate delay. That the same lacks merits and cannot be granted because there is no order from the superior Court on appeal. 8. That from the time the suit was filed on 10th February 2012 upto 30th November 2026 when it was dismissed for want of prosecution, the Plaintifis did not prosecute it and went to sleep and no plausible https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1093/eng@2026-02-26 2

page 2 of 7

reasons have been given why the suit was not prosecuted. It is not the duty of the Court to move parties to prosecute their cases. That duty is on the parties themselves and therefore the Plaintifis should not blame the Court for not informing them that their suit was coming up for dismissal on 30th November 2016. Should the Court grant the orders sought, then it should be with conditions that the Plaintifis pay thrown away costs to the Defendant. Otherwise, this application should be dismissed with costs. 9. The Court directed that the motion be canvassed by way of written submissions. These were filed by Mr Abed instructed by the firm of Waiswa Abed & Company Advocates for the Plaintifis. The firm of Elizabeth Chunge & Company Advocates who entered appearance for the 3rd Defendant did not file any submissions. 10. The 4th and 5th Defendants filed a joint statement of defence dated 3rd May 2013 in which they averred, inter alia, that the Plaintifis have no locus to sue in respect of the suit land and have not demonstrated what interest they have in the suit land. They also pleaded that the Plaintifis have not proved fraud and are put to strict proof thereof and are not entitled to the orders sought. 11. I have considered the Motion, the rival afidavits and annextures thereof as well as the submissions by Mr Abed. 12. It is common ground that on 30th November 2016, some ten (10) years ago, Kaniaru J dismissed the Plaintifis’ case because none of the parties attended Court having been served with a Notice dated 8th November 2016 to show cause why this suit should not be dismissed. The Court no doubt has the power to dismiss a suit for want of prosecution. In the case of Ivita v Kyumbu HC Civil Case No 340 of 1971 [1975 KEHC 4 KLR], Chesoni J (as he then was), having cited cases from various jurisdictions, had the following to say about the power of the Court to dismiss a suit for want of prosecution: “ So the test is whether the delay is prolonged and inexcusable, and, if it is, can justice be done despite such delay. Justice is justice to both the plaintifi and Defendant; so both parties to the suit must be considered and the position of the judge too, because it is no easy task for the documents, and, or witnesses may be missing and evidence is weak due to the disappearance of human memory resulting from lapse of time. The Defendant must however satisfy the Court that he will be prejudiced by the delay or even that the plaintifi will be prejudiced. He must show that justice will not be done in the case due to the prolonged delay on the part of the plaintifi before the Court will exercise its discretion in his favour and dismiss the action for want of prosecution. Thus, even if delay is prolonged if the Court is satisfied with the plaintifi’s excuse for the delay and that justice can still be done to the parties notwithstanding the delay the action will not be dismissed, but it will be ordered that it be set down for hearing at the earliest available time. Where the Defendant satisfies the Court that there has been prolonged delay and the plaintifi does not give suficient reason for the delay the Court will presume that the delay is not only prolonged but it is also inexcusable and in such case the suit may be dismissed. To put it in the words of Salmon LJ in Allen v McAlpine, at p 561, as a rule, when inordinate delay is established until a credible excuse is made out, the natural inference would be that it is inexcusable. It is an all time saying, which will never wear out however often said that, justice delayed is justice denied.” Emphasis mine. Order 17 Rule 2(1) of the Civil Procedure Rules which sets out the legal framework for dismissal of a suit for want of prosecution states that: “ In any suit in which no application has been made or step taken by either party for one year, the Court may give notice in writing to the parties to show cause https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1093/eng@2026-02-26 3

page 3 of 7

why the suit should not be dismissed, and if cause is not shown to its satisfaction, may dismiss the suit.” Emphasis mine It is clear from the above that the dismissal of a suit for want of prosecution is not mandatory. The rule is permissive and any dismissal must be at the exercise of the Court’s discretion which, as is commonly said, must be based on reasonable grounds. The record of 3rd November 2016 when this suit was dismissed by Kaniaru J for want of prosecution reads: “ Court: Both sides were sent a Notice dated 8.11.2016 to appear today to show cause why this matter should not be dismissed for want of prosecution. Nobody has turned up today. This suit is hereby dismissed. 30.11.2016” I have looked at the record. There is nothing to show that any Notice for dismissal of the suit was issued and served to either of the parties in this case or their counsel. Further, the suit was last in Court on 9th July 2014 before the dismissal and it was Stood Over Generally (SOG). It is the Plaintifis’ case that even if their then counsel Mr Wanyama was served, he did not inform them why he did not attend Court and they should therefore not be punished for the failure by their then counsel to attend Court. It is of course correct that a case belongs to the party and not to the counsel. But where a party has a counsel on record, it is to be expected that the counsel will be served with any notices. In this case, the Court decided to issue notices to the parties dated 8th November 2026. Having taken that route, it is only proper and in the interest of justice that the said notices should have been served. That was not done in this case and if it was, there is no evidence to enable the Court determine that indeed service was done and ignored. It would be an injustice to condemn the Plaintifis unheard. 13. The Plaintifis have also stated in ground No C of their Motion as follows: C: That the Court Registry stafi changed the Court case number from HCC NO 8 of 2012 to ELC case No 133 of 2014 without informing the parties and this made it dificult to trace the physical Court file over the years.” In paragraphs 4, 5 and 7 of his supporting afidavit, the 2nd plaintifi has averred as follows: 4: That it took us several inquiries over the years from our counsels on the progress of our matter and every time we were fed with false information and instructed to come again at a later date only to be given false information again.” 5: That we finally got tired and visited the Court Registry in the year 2025 where we were informed that the case number Busia HCCC NO 8 of 2012 belongs to another matter and not ours and it is at this moment that we demanded from our counsel to give us our file so we can appoint another advocate to follow up with our matter.” 7: That the Court Registry stafi changed the Court case number from HCC No 8 of 2012 to ELC Case No 133 of 2014 without informing the parties and this made it dificult to trace the physical Court file over the years (annexed and marked as VLO 1(a) and (b) are correspondence from the Court Registry).” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1093/eng@2026-02-26 4

page 4 of 7

Among those annextures are a letter dated 5th June 2025 addressed to the Deputy Registrar of this Court by the firm of Waiswa Abed & Company Advocates for the plaintifi. In the said letter, the firm starts by clarifying that they have now come on record for the Plaintifis having taken over the conduct of this suit from the firm of Wanyama & Company Advocates. In paragraphs 2 and 3 of the said letter, counsel states thus in reference to “Busia HCCC ELC No 8 of 2012.” 2: We request you to assist us in tracing the above Court file. A copy of the amended plaint and Court receipt are annexed for your reference.” 3: We are reliably informed that the Court file has been missing for a very long time now and your good ofice has verbally informed the previous counsels on record and its based on that information that we request for oficial correspondence from your good ofice with ours in tracing this file.” The oficial correspondence eventually came via the letter by the Deputy Registrar dated 19th June 2025 and addressed to counsel. In paragraphs 2 and 3 of the said letter, it is stated that: “ Kindly note that we have done an extensive search both in the CTS and physically, but we have not traced the above-mentioned file. It appears that it does not exist in our records. What we have is Busia ELC No 8 of 2012 but with difierent parties being Wilmina Anyango Adembo v Charles Wanyama Khakhulo & 3 Others with Mary Sitwaye Mukudi being an Interested Party. As such, to enable us conduct further search, kindly avail to us the pleadings bearing original Court stamp (not photocopies or scanned copies), which were filed in Court. Note to include the plaint indicated to be dated 28.12.2011 and any other documents available.” The documents in this file show that it was initially registered on 10th February 2012 as Busia High Court Civil Case No 8 of 2012, then Busia ELC Case No 133 of 2014. Indeed, vide another letter dated 30th June 2025 and addressed to the firm of Waswa Abed & Company Advocates, the Deputy Registrar states in the last paragraph thus: “ Kindly not that the ELC matter is ELC Case No 133 of 2014 (formerly HCC No 8 of 2012) and the said file is available for your perusal).” The averments by the Plaintifis taken together with the letters from the Deputy Registrar confirming that the Court file could not be traced lend credence to the Plaintifis’ case that the case file could not be traced due to a change of numbers. And it is also clear that it was not until 30th June 2025 that this file was traced. This Motion was dated 27th July 2025 and filed on 2nd August 2025 just about one month after the file was traced. That demonstrates that the Plaintifis have always been keen to prosecute their case but were not only let down by their previous counsel but also by negligence on the part of the Court Registry in giving the file a new number, failing to notify the parties and also by misplacing it. Given those circumstances, it must be obvious that the orders issued on 30th November 2016 dismissing the Plaintifis’ suit cannot be allowed to stand as it is not even clear which suit was being dismissed. 14. The Plaintifis have clearly explained the delay in filing this Motion some nine (9) years after the suit was dismissed. The delay is no doubt inordinate but there is nothing which they could have done in the absence of the file and the failure of the Court registry to avail it immediately after it was assigned a new case number. Suficient reason for the delay has been given to the satisfaction of this Court. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1093/eng@2026-02-26 5

page 5 of 7

15. As was stated in the case of Ivita v Kyumbu (supra), the Defendant must also demonstrate “that he will be prejudiced by the delay.” I have not heard the 3rd Defendant aver in his replying afidavit that the Defendants will be prejudiced in the trial if the order dismissing the Plaintifis’ suit is set aside and the case reinstated to hearing. In paragraph 7 of the replying afidavit, the 3rd Defendant has averred that the Plaintifis cannot be granted the orders sought “unless there is an order from the superior Court in any appeal that ought to have been preferred by the applicants their suit having been dismissed for want of prosecution under Order 17 Rule 2 of the Civil Procedure Act (sic).” No authority has been cited for that proposition. The Defendants have not suggested that due to the delay, they will be unable to avail their witnesses or documents. 16. From the circumstances of this case, it will be an afiront to justice and in particular to Article 50(1) of the Constitution which provides that: “ (1) Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a Court or, if appropriate, another independent and impartial tribunal or body.” If the Motion is declined. The Plaintifis in this case cannot be said to have squandered their right to a fair hearing. Instead, that right was obstructed principally by the Court itself by making it dificult for the Plaintifis to access the case file. This application is well merited and the orders sought are for granting. 17. With regards to costs in the circumstances of this case, it is producent that each party meets their own costs. 18. The up-shot of all the above is that having considered the Plaintifis’ Chamber Summons dated 27th July 2025, this Court makes the following disposal orders: 1. The order dated 30th November 2016 dismissing the Plaintifis’ suit for want of prosecution is hereby set aside. 2. The Plaintifis’ suit is reinstated to hearing. 3. The parties shall within 15 days of the delivery of this ruling file and serve their documents. 4. Thereafter, pre-trial shall be held on 16th March 2026 to confirm compliance and take a date for hearing. 5. The Plaintifis and the 3rd Defendants shall meet their costs of this application. BOAZ N. OLAO JUDGE 26TH FEBRUARY 2026 RULING DATED, SIGNED AND DELIVERED BY WAY OF ELECTRONIC MAIL ON THIS 26TH DAY OF FEBRUARY 2026 WITH NOTICE TO THE PARTIES. BOAZ N. OLAO JUDGE 26TH FEBRUARY 2026 Explanatory notes: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1093/eng@2026-02-26 6

page 6 of 7

This ruling was due on 22nd January 2026. However, following my transfer from Busia to Iten Court w.e.f. 15th January 2026, I had to prioritize my part heard hearings. That contributed towards the delay. The same is regretted. BOAZ N. OLAO JUDGE 26TH FEBRUARY 2026 https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1093/eng@2026-02-26 7

page 7 of 7