Thibdiu v Ministry of Labour & Social Protection & 2 others (Environment and Land Case 106 of 2018) [2026] KEELC 1254 (KLR) (4 March 2026) (Ruling) Neutral citation: [2026] KEELC 1254 (KLR) REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT KITALE ENVIRONMENT AND LAND CASE 106 OF 2018 CK NZILI, J MARCH 4, 2026 BETWEEN STEPHEN KAMAU THIBDIU ................................................................. PLAINTIFF AND MINISTRY OF LABOUR & SOCIAL PROTECTION ................. 1ST DEFENDANT ATTORNEY GENERAL ................................................................. 2ND DEFENDANT PETER MBUGUA MUNGAI .......................................................... 3RD DEFENDANT RULING 1. Through an application dated 18/2/2025, the court is asked to set aside its orders dated 6/2/2025, dismissing the suit against the 3rd defendant, and to reinstate it for hearing. In the grounds of the application and a supporting afidavit of Wanjiku Mwangi, advocate, sworn on 18/2/2025, she states that efiorts to locate the 3rd defendant had been unsuccessful after the amendment of 4/7/2024 was allowed to join the said party. Further, the deponent states that, out of an oversight on their part, they had failed to extract and serve summons to enter appearance upon the 3rd defendant until the suit was dismissed on 6/2/2025 for non-service. 2. The applicant deposes that they have now made an application to extract the summons and shall make a renewed efiort to serve the same upon the 3rd defendant. The deponent says that in the event they fail to trace him, they shall make an application for substituted service. 3. The applicant prays that the suit be reinstated to ensure justice is served. The applicant deposes that the application is made in good faith and in the interest of justice, as the 3rd defendant is a necessary party to the suit. 4. The applicant invokes Articles 50(1) and 159 of the Constitution on access to justice and fair hearing. The applicant depose that in assessing the prejudice caused to the defendants by the delay, the court https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1254/eng@2026-03-04 1
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should also assess the likely prejudice the dismissal will occasion upon him; otherwise, the prolonged delay should not prevent the court from doing justice to all the parties for the sake of substantive justice. 5. This suit was commenced on 28/11/2018 following a judgment in Petition No. 16 of 2015, where the 3rd defendant was an interested party. In paragraph 4 of the plaint, the plaintifi states that he purchased the land from the 3rd defendant. After an inordinate delay, a notice of dismissal of the suit was issued on 3/2/2021. 6. The defendant filed a statement of defence and counterclaim dated 19/10/2021. By an application dated 17/12/2021, the Hon. Attorney General sought the consolidation of this suit with Kitale ELC No. 117 of 2012, which the plaintifi opposed. Parties eventually filed trial bundles on 11/5/2022 and 25/7/2022. 7. By an application dated 31/1/2024, the plaintifi sought to join the 3rd defendant as a party to the suit. It was allowed by consent on 13/5/2024, and the applicant was given 10 days to amend the plaint and serve it. A mention date was given for 4/7/2024. The plaintifi had not complied by then; hence, time was extended for 30 days to do so. 8. Come 19/9/2024, 6/11/2024, and 16/12/2024, the service of summons and amended plaint had not been efiected upon the 3rd defendant. As of 6/2/2025, the 3rd defendant had not been served with a summons to enter appearance. Indeed, the deponent admits that she did not file the amended plaint accompanied by a summons to enter appearance against the 3rd defendant. 9. Extraction and service of summons to enter appearance is governed by Order 5, Rules 1 (5) and (6) of the Civil Procedure Rules. The order is couched in mandatory terms. Failure to comply is fatal. It is through summons that a defendant is required to appear and answer to a suit. If summons are not served within 30 days of their issuance or notification, the suit stands abated. 10. Extraction and service of summons is an integral part of court proceedings. It ultimately accelerates the dispensation of justice. Failure to extract and serve means that the applicant was not only careless but unwilling to prosecute the suit against the 3rd defendant. The suit against the 3rd defendant was dead on arrival. 11. The timelines set by Order 5 of the Civil Procedure Rules are not mere technicalities of procedure to be accommodated under Article 159 of the Constitution, as held in Charles Wanjohi Wachira -vsGithinji Ngari & Others [2016] eKLR, Nicholas Kiptoo Arap Korir Salat -vs- Independent Electoral and Boundaries Commission & 6 others [2013] KECA 113 (KLR), and Zacharia Okoth Obado -vsEdward Akongo Oyugi & Others [2014] eKLR. 12. Order 5 Rule 2 of the Civil Procedure Rules goes further to say that the lifespan of a summons to enter appearance is 12 months, and unless renewed or extended, they expire at the peril of the plaintifi. 13. In this suit, the plaintifi, after the leave to amend and join was granted, for over a year, did nothing to lodge, let alone to extract and serve the summons. Such a defect cannot be cured by Sections 1A, 1B, and 3A of the Civil Procedure Act, as held in Udaykumar Chandulal Rajani & 4 Others -vs- Charles Thaithi [1997] eKLR. 14. In Nicholas Kiptoo Arap Korir Salat -vs- Independent Electoral and Boundaries Commission, (supra), the court held that Article 159 of the Constitution and the oxygen principle were not meant to aid in the overthrow or destruction of rules of procedure and to create an anarchical free-for-all in the administration of justice, and that a court must never provide succors and or cover to parties who exhibit scant respect for rules and timelines, which are meant to make the process of judicial adjudication and determination fair, just, certain and evenhanded. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1254/eng@2026-03-04 2
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15. To do as requested by the plaintifi is to aid him in bending or circumventing the rules and shifting the goal posts to harm not only the 1st and 2nd defendants, but also the course of justice. A case belongs to a litigant, but not the lawyer. In this suit, the plaintifi has not sworn an afidavit to say where the 3rd defendant is, even if the court were to find the application merited. 16. The deponent to the application appears uncertain about the whereabouts of the 3rd defendant. The applicant is not even seeking an extension of time to file and serve the summons from the date leave to amend was allowed. The court is being blamed for dismissing the suit on 6/2/2025 for non-service. What was the court to do if there were no summons filed and extracted, let alone served? 17. Can justice be done without playing by the rules and abiding by them? It is not in the interest of justice for a party to sit by, after leave to amend has been granted, and do nothing to put on course the wheels of justice, and when the hour of reckoning comes, to put a stop to inaction, claims the order is unjust, unfair, and prejudicial. 18. I think the plaintifi has himself to blame. A nullity is a nullity. The court on 5/2/2025 simply confirmed there was a stillborn suit against the 3rd defendant for non-extraction of summons and their service after the 3rd defendant was joined as a party. 19. The upshot is that I find the application lacking merit. It is dismissed with no order as to costs. 20. Orders accordingly. RULING DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT KITALE ON THIS 4TH DAY OF MARCH 2026. HON. C.K. NZILI JUDGE, ELC KITALE. In the presence of: Court Assistant - Dennis Miss Mwangi for Macharia for plaintifi/applicant present Chilaka for Attorney General absent https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1254/eng@2026-03-04 3
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