Obilo v Mutswenje & another

with the Court’s order was beyond her control. She maintains that the dispute concerns land rights and should, in the interests of substantive justice, be determined on its merits rather than terminated on a procedural default. 5. The Applicant further argues that the Respondents will suer no prejudice because she is prepared to pay the ordered costs immediately and they will still have an opportunity to defend the suit at the hearing. The Respondents’ Case 6. The application is opposed through the Replying Adavit sworn by the 2nd Respondent, Wilfred Omukala Thumah. 7. The Respondents contend that the application lacks merit and is another demonstration of the Applicant’s indolence in prosecuting the suit, which was led in 2021. They state that this is not the rst time the suit has been dismissed. According to the Respondents, the suit was previously dismissed on 1st July 2024 in the absence of both the Applicant and her advocate before Justice Olao, but was subsequently reinstated conditionally by an order dated 25th March 2025. 8. The Respondents aver that the reinstatement was expressly subject to compliance with specied conditions, including payment of Kshs.15,000, which the Applicant failed to honour. They therefore argue that the conditional dismissal resulted directly from the Applicant’s non-compliance with the Court’s orders. 9. The Respondents further state that the Applicant has continued occupying and utilizing the suit property and consequently has no incentive to expedite the hearing of the matter. They rely on the equitable principle that equity aids the vigilant and not the indolent, and submit that no sucient explanation has been oered to justify yet another reinstatement. They accordingly urge the Court to dismiss the application with costs. Analysis and Determination 10. Having considered the Notice of Motion dated the 25th March 2026, together with the supporting adavits, the replying adavit and the submissions, the Court is of the view that the only issue that arises for determination is whether the Applicant has established sucient cause to warrant the exercise of the Court’s discretion to enlarge time for compliance with the Court’s conditional order requiring payment of Kshs. 15,000, set aside the resultant conditional dismissal order, and reinstate the suit for hearing and determination on its merits. 11. There is no dispute that this Court has jurisdiction under Section 95 of the Civil Procedure Act and Order 50 Rule 6 of the Civil Procedure Rules to enlarge time xed by the Court. However, that jurisdiction is discretionary and must be exercised judiciously and upon sucient cause being shown. The discretion is not intended to assist an indolent litigant, but rather to prevent injustice where the failure to comply with a court order is satisfactorily explained. 12. The record shows that this suit, led in 2021, has experienced considerable delay attributable to the Applicant’s conduct. It is also evident that this is not the rst time the Applicant has sought the Court’s indulgence. Following the dismissal of the suit, this Court, in its ruling delivered on 25th March 2025, exercised its discretion in the Applicant’s favour and reinstated the suit on the express condition that the Applicant pays Kshs.15,000 within the period stipulated by the Court. That condition was neither ornamental nor optional; it was the basis upon which the Court granted the Applicant a second opportunity to prosecute her claim. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5541/eng@2026-09-17 2

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13. Notwithstanding the Court’s indulgence, the Applicant failed to comply with the conditional order. Instead, the present application was only led on 25th March 2026, approximately one year after the conditional order had been made. Such delay is plainly inordinate and calls for a plausible and satisfactory explanation. 14. The Applicant attributes the delay to advanced age, illness and nancial constraints. While the Court appreciates that the Applicant is an elderly person, advanced age alone cannot excuse non-compliance with a lawful court order. A party alleging illness bears the burden of placing before the Court cogent evidence demonstrating that the illness was of such severity as to prevent compliance with the Court’s directions. 15. In the case of Erdemann Property Limited v Safaricom Sta Pension Scheme Registered Trustees [2026] KEELC 1596 (KLR), the court stated that: “ It is a fundamental principle of law that he who alleges must prove. Section 107(1) and (2) of the Evidence Act provides as follows: (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person” 16. In the present case, no medical reports, treatment notes, hospital records or any other documentary evidence have been annexed to demonstrate that the Applicant was indeed bedridden during the relevant period. The allegation therefore remains unsubstantiated. 17. Likewise, the allegation of nancial hardship has not been supported by any evidence. The Applicant has not exhibited any material demonstrating her inability to raise the sum of Kshs.15,000 within the time granted by the Court. Mere assertions of nancial constraints, without more, cannot suce as a basis upon which the Court may exercise its equitable discretion. 18. Equally signicant is the Applicant’s failure to explain the entire period of delay. Even assuming that illness or nancial challenges initially prevented compliance, no explanation has been oered as to why the Applicant waited for approximately one year before approaching the Court for extension of time. 19. A diligent litigant who genuinely encounters diculties in complying with a court order is expected to move the Court without unreasonable delay. The prolonged inactivity exhibited in this matter demonstrates a lack of diligence and portrays a litigant who has not been vigilant in the prosecution of her own case. 20. In the case of Eboso v Azelwa [2026] KEELC 3638 (KLR), the court provided that: “ The respondent was served with mention and hearing notices but failed to attend court, thus obstructing and delaying justice, hence undeserving of the court’s discretion. That there is no evidence the respondent’s counsel tried to attend court. That equity aids the diligent and not the indolent. That the respondent has not shown the steps he took to defend the suit. That the suit has been pending for six years. That if there was professional negligence, the respondent should seek relief elsewhere.” 21. The Court is also mindful that litigation does not exist solely for the benet of one party. While the Applicant urges the Court to lean towards substantive justice, the Court is equally obliged to balance that consideration against the Respondents’ right to certainty, nality in litigation and the enjoyment of the benet of orders lawfully issued in their favour. The Respondents were entitled to expect https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5541/eng@2026-09-17 3

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compliance with the conditional order issued on 25th March 2025. To excuse such prolonged and unexplained non-compliance would not only prejudice the Respondents but would also undermine the authority and ecacy of court orders. 22. In the case of Bundotich v Sawe [2026] KEHC 10692 (KLR), the court provided that: “ The guiding principles were authoritatively set out by the Supreme Court in Nicholas Kiptoo Arap Korir Salat -v- Independent Electoral and Boundaries Commission & 7 Others, where the Court held that extension of time is an equitable remedy available only to a deserving party.” 23. Similarly, in Shah v Mbogo [1967] EA 116, the Court held that judicial discretion is intended to avoid injustice resulting from accident, inadvertence or excusable mistake, but not to assist a person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice. 24. In the present case, the Applicant has failed to demonstrate that the delay was occasioned by circumstances beyond her control. Instead, the record discloses a continued pattern of indolence and non-compliance with court directions. 25. The Court had already exercised its discretion once by reinstating the suit subject to conditions. The Applicant cannot be permitted to repeatedly disregard court orders and thereafter seek further indulgence without placing before the Court credible and sucient material to justify such relief. 26. Ultimately, the Court must uphold the integrity of its own orders. Conditional orders are made to be obeyed, not ignored. To enlarge time in the circumstances of this case would eectively render the Court’s earlier conditional order inconsequential and send the wrong message that compliance with court orders is optional. 27. Accordingly, I nd that the Applicant has failed to establish sucient cause to warrant the exercise of this Court’s discretion. The allegations of illness and nancial hardship remain unproven, the delay of approximately one year is inordinate and unexplained, and the Applicant has not demonstrated the diligence expected of a litigant seeking equitable relief. Balancing the interests of both parties, the scales of justice tilt in favour of upholding the Court’s previous orders and protecting the Respondents’ legitimate expectation that litigation must, at some point, come to an end. Disposition and Final Orders 28. In the result, I nd that the Notice of Motion dated 25th March 2026 is devoid of merit. Accordingly, the Notice of Motion dated 25th March 2026 is hereby dismissed with costs to the Respondents. RULING DATED, SIGNED AND DELIVERED IN OPEN COURT ON THIS 17TH DAY OF SEPTEMBER 2026. C. MUGAMBI JUDGE 17TH SEPTEMBER 2026 https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5541/eng@2026-09-17 4

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