Mwania v Malombe & 6 others (Environment and Land Case Civil Suit 40 of 2011) [2026] KEELC 3451 (KLR)

b. That this honourable court be pleased to set aside and/ or vary the dismissal ex parte orders made on 12 June 2025. c. That the case herein be reinstated and heard on its merits. d. That the costs of this application be in the cause. 2. The motion is supported by the grounds therein as well as the afidavit sworn on the same date by counsel, Morgan John Muinde. In a nutshell, counsel avers that when the matter came up for hearing on 12 June 2025, he logged into the virtual court hearing at 9:00 am but encountered connectivity issues. 3. Nonetheless, he was readmitted at 9:07 am. Later that day, counsel requested that the court set aside the dismissal and reinstate the case, explaining that the earlier absence at 9:00 am was excusable and that the plaintifi had been denied a fair hearing. Counsel further informs the court that the defendants had responded to the dismissed application and thus will not be prejudiced. 4. Only the 2nd contemnor opposed the motion via his replying afidavit, sworn on 26 June 2025, in which he asserts that the court dismissed an application dated 21 March 2025, which the court had, on 25 March 2025, ordered the applicant to serve within fourteen days. However, the applicant served the application on the evening of 11 June 2025. Moreover, there is a judgment on record. He asserts that the supporting afidavit is fatally and irredeemably defective because it is unsigned, and no material has been presented before the court to substantiate the allegation that the plaintifi’s counsel had logged into the court's platform by 9:00 a.m, hence the application was properly dismissed. 5. In rejoinder, counsel Morgan John Muinde swore an afidavit on 11 November 2025, in which he succinctly states that the main suit was heard and determined. However, due to the actions of the 2nd contemnor and the other respondents, the plaintifi has been unable to enjoy the fruits of her judgment or access her land. Further, his supporting afidavit was properly executed before a commissioner for oaths, as evidenced by the certificate. Lastly, as an oficer of the court, he is duty-bound to tell the court the truth, and he indeed logged in to the court platform by 9:00 am and was unaware that a photostat image would be required to substantiate his averments under oath. 6. Despite court directions, only the plaintifi, by the law firm of Ms. M. Morgan J. Muinde & Associates Advocates, filed written submissions dated 16 March 2026 and, urged this court to allow the motion. Accordingly, having carefully considered the motion, its grounds, and afidavit, including the provisions of the law and judicial precedents, the issue for determination is whether the plaintifi has met the legal threshold warranting the reinstatement of the application dated 21 March 2025. We deal. 7. Regarding the pertinent law, as delineated in the motion, it is found in Order 12 Rule 7 of the Civil Procedure Rules. This statutory provision authorises a party to file an application requesting that the court exercise its discretionary power to set aside or vary a judgment or order on such terms as may be just. A review of the court records reveals that judgment was entered in the plaintifi’s favour on 18 January 2020. Later, the 1st and 2nd defendants sought to set aside the judgment by an application dated 12 October 2020, which this court dismissed by a ruling on 21 May 2021. Subsequent, the plaintifi filed an application dated 21 March 2025 that sought leave for Ms. M. Morgan J. Muinde & Associates Advocates to come on record and also contempt proceedings. 8. When the plaintifi’s application came up for hearing on 12 June 2025, the plaintifi’s counsel was absent, and the application was dismissed for want of prosecution. The instant motion was filed shortly after the dismissal. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3451/eng@2026-06-09 2

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9. As submitted by the plaintifi’s counsel, who seeks to be admitted on record for the plaintifi, a position with which this court concurs, the court exercises its discretion in entertaining such applications for reinstatement, provided they are grounded in law, evidence, and reason. According to jurisprudence, the guiding principles the court considers in resolving such applications, though not exhaustive, include preventing injustice or hardship resulting from accidents, inadvertence, or excusable mistakes, rather than mechanisms to aid parties who intentionally impede or delay justice. 10. In the Court of Appeal decision of Richard Ncharpi Leiyagu v Independent Electoral Boundaries Commmission & 2 others [2013] KECA 282 (KLR), the court held as follows on the settled guiding principles:“ [18]. We agree with those noble principles which go further to establish that the court's discretion to set aside an exparte judgment or order for that matter, is intended to avoid injustice or hardship resulting from an accident, inadvertence or inexcusable mistake or error but not to assist a person who deliberately seeks to obstruct or delay the course of justice. We have considered the reasons that were ofiered by the appellant regarding their failure to attend court on the 10th June, 2013 with anxious minds. We have asked ourselves whether failure to attend court on 10th June, 2013, constituted an excusable mistake, an error of judgment regarding counsel's failure to diarize the date properly or was it meant to deliberately delay the cause of justice. The appellant and his counsel failed to attend Court on 10th June, 2013; they, nonetheless, made it to court on 11th June, 2013, and promptly ofiered an apology and explanation and ofiered to proceed with the petition on the 11th June, 2013, which date was reserved for the appellant’s case.” 11. When considering these principles, it must be remembered that the burden of proof rests on the party seeking the court’s discretion to reinstate a suit and to provide suficient and plausible reasons in support of the application. 12. In the persuasive decision of Patrick Mutunga Mwilu & 10 V Mary Katua & 2 Others [2012] KEHC 2746 (KLR), which has been relied upon by the plaintifi, the court held that: “ The general principle and which I agree with is that a litigant should not be punished for the sins of his counsel. The court must guard against undue hardship or irreparable loss being caused to a litigant due to his counsel’s negligence and or in advertence, particularly when he had no hand or role to play in matters leading to his advocate’s omissions. He should in the circumstances not be punished for such omission (s).” 13. Guided by the above decisions, it is important to recognise that the discretion in granting these orders should not be exercised based on empathy, sympathy, or arbitrarily favouring an undeserving party. Non-attendance must be justified by a valid reason that constitutes a reasonable, excusable mistake, and it should not suggest negligence, inaction, or bad faith intended to obstruct justice by the applicant. Thus, has counsel provided suficient explanation that qualifies as such a valid reason for not attending court on 12 June 2026?. 14. This court has thoroughly reviewed the documents. The plaintifi’s counsel has detailed his diligent attempts to log in to the virtual court session on time before encountering challenges. Despite this, he was subsequently readmitted to the court at 9:07 am on 12 June 2026. Later, counsel addressed the court at 12:10 am and was informed that the matter had been dismissed. This court finds no https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3451/eng@2026-06-09 3

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reason to doubt counsel’s account. The second contemnor has challenged the validity of the afidavit's signature; however, this court finds the objection unfounded and concludes that the afidavit was properly executed. This court also finds that the motion was filed promptly after the dismissal was brought to the plaintifi’s counsel’s attention. 15. Accordingly, this court finds that the reason provided by the plaintifi’s counsel for his non-attendance is both suficient and reasonable. Therefore, the court shall accord the benefit of the doubt to said explanation. It is the view of this court that the absence was neither deliberate nor intentional, nor intended to obstruct the course of justice. 16. Furthermore, this court is persuaded that the plaintifi, who holds a judgment and is pursuing execution, would be prejudiced should the motion be denied. Articles 48 and 50 of the Constitution guarantee the right to access justice and to have disputes resolved through a fair hearing before a court. Accordingly, this court finds it necessary to afiord the parties an opportunity to be heard and to fully address the dismissed application on its merits. The right to be heard is a fundamental right protected by our Constitution and constitutes a cornerstone of the rule of law. Therefore, this right should not be withdrawn arbitrarily where suficient cause has been demonstrated. 17. Before issuing the final disposal order, it is noted that the 1st defendant has filed an application dated 20 February 2026 seeking to set aside the judgment. A similar application was filed by him dated 12 October 2020, which this court dismissed in its ruling of 21 May 2021 after hearing the parties on the merits. Consequently, it appears that the application is an abuse of the court process and is res judicata. 18. In the end, the notice of motion dated 12 June 2025 is found merited and allowed, with each party bearing their own costs. In the end, the following final orders are hereby issued: a. The orders issued on 12 June 2025 dismissing the notice of motion dated 21 March 2025 are hereby set aside. b. The application dated 21 March 2025 is hereby reinstated for hearing and determination on the merits. c. Each party to bear their respective costs. d. A mention date shall be given for further directions on the pending applications. It is so ordered. DELIVERED AND DATED AT MACHAKOS THIS 9TH DAY OF JUNE, 2026. HON. A. Y. KOROSS JUDGE 09.06.2026 Ruling delivered virtually through Microsoft Teams Video Conferencing Platform In the presence of; Ms. Kanja Court Assistant. Mr. Ngolya for 2nd contemnor. Mr. Morgan for applicant. No appearance for other parties. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3451/eng@2026-06-09 4

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