Kathuku (Suing as the Legal Administrator of the Estate of Kathuku Musau Dammas - Deceased) v Musyoka & another (Environment and Land Case E171 of 2023) [2026] KEELC 3586 (KLR)

iv. That in the interests of justice, the said Order ought to be set aside and the suit be reinstated for hearing. Respondent’s case 3. The application was opposed by the 2nd Respondent who filed a replying afidavit sworn by Chabi Otieno on the 15th December 2024. He deponed the application lack merit as the Applicant had not demonstrated why the orders should be given being that the inordinate delay in prosecuting had not been suficiently explained. 4. That the Applicant had through their conduct had demonstrated unwillingness to prosecute the matter hence the dismissal. 5. The application was canvassed by way of written submissions with the applicant being the only complying party. Applicant’s submissions 6. The Applicant’s counsel submitted that the applicant was not served with a notice to show cause before the suit was dismissed. That on the day the matter was coming up for hearing on the 24th September 2024, the Applicants were not served with any hearing notice. She submitted that she had been vigilant in prosecuting the matter and that the court in exercise of its discretion may give the orders as prayed relying on the provisions of Order 10 Rule 8,9,10 and 11 of the Civil Procedure Rules. Counsel also relied on a number of cases including but not limited to the case of Doa Doa Tented Camps and Lodges Limited Vs Jubilee Insurance Company of Kenya Limited [2021). Counsel indicated that the Defendants will not be prejudiced on the same if the orders are granted. Analysis and Determination 7. The court has considered the Notice of Motion application, the replying afidavit and the submissions filed and finds that the issue for determination is; Whether the instant application is merited 8. Reinstatement of suit is a discretionary power. However, such discretion ought to be exercised judicially. In the case of Shah Vs Mbogo & another [1967] EA 1116, the court stated as follows on the issue of discretion: “The discretion is intended so as to be exercised to avoid injustice or hardship resulting from inadvertence or excusable mistake or error but is not designed to assist a person who has deliberatively sought whether by evasion or otherwise to obstruct or delay the course of justice.’’ The grounds for consideration therefore are whether there are reasonable grounds to reinstate the suit and whether there will be prejudice that will be occasioned to the Respondent if the suit is reinstated. The court has to consider also the prejudice to be occasioned to the applicants if the dismissal order is not set aside and the suit reinstated. 9. From the court record, the court ordered that the parties to be served with a notice to show cause on the 30th July 2024. There is a notice to show that was served on the Applicant’s advocates via the advocates email address on the 12th August 2024 hence the averments by the Applicant that Notice to Show Cause was not served are not substantiated. The Applicant further went ahead to file an amended plaint date dated 5th September 2024 despite there being a Notice to Show Cause served. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3586/eng@2026-06-11 2

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10. The matter came up for mention on the 24th September 2024, and both parties were absent and the court went ahead to dismiss the suit for want of jurisdiction. 11. In dismissing the suit, the court relied on its ruling dated 7th May 2024 where it held that it did not have jurisdiction to entertain both the application and suit, that there being Milimani High Court succession Cause No 1392/2019 which the suit property was the subject ofi, the High Court was with jurisdiction to entertain the application. Being that the court already decided on the issue of jurisdiction and downed its tools, the Applicant herein then cannot seek to reinstate the same suit in this court as the high court is the competent court to hear the suit. 12. Considering the above argument, and taking into account the inordinate delay in prosecution the initial suit before dismissal and the present Application, I find that the applicant has not persuaded this court to exercise its discretion in her favour. The overriding objective of the court would not come to the aid of the applicant. Final disposition i. For the reasons and findings stated above, this court finds the Notice of Motion dated 1st October 2024 is not merited and is hereby dismissed. ii. Each party to bear their own costs. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 11TH DAY OF JUNE 2026. MOHAMMED N. KULLOW JUDGE Ruling delivered in the presence of: Mr. Bundi for the Plaintifi/Applicant N/A for 1st Defendant Mr. Oduor for 2nd Defendant Philomena W Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3586/eng@2026-06-11 3

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