Kepher Odhiambo Mak'Anyengo v Linus Omoro Oyayo (Suing through his next of kin, Crestina Aoko Ooro) & 2 Others

Janes Owuor Genga to the petitioner’s late father, Ochola Ogaye Mak'Anyengo, in 1990). b) Adjudication and Subdivision: Following the father's demise, the petitioner pursued transfer. A counter-objection was filed by the 1st Respondent claiming an earlier sale. On April 3, 2007, the Land Adjudication Officer ruled that approximately one-third of the southern portion be hived off and allocated to the 1st respondent as LR KKK 3720, while the remaining twothirds portion was awarded to the petitioner retaining the original number LR KKK 830. c) The Ministerial Appeal & Subsequent Actions: The petitioner contends that the 1st respondent fraudulently launched an appeal (Appeal Case No. 125 of 2009 / Appeal No. 290 of 2021) seeking an extra portion from the petitioner's remaining parcel. This process involved administrative back-and-forth, document reconstructions, and subsequent ministerial directives culminating in boundary demarcation notices issued in late 2020. d) Filing of the Petition and Abatement Events: Consequently, the petitioner filed Petition No. E005 of 2021 seeking certiorari to quash the ministerial/adjudication decisions. During the pendency of the suit, the 1st Respondent passed away, prompting the petitioner to initiate substitution and citation proceedings (Chief Magistrate's Court Succession Misc. Application No. E104 of 2024), which concluded with citation orders issued on August 25, 2025. e) Dismissal and Current Application: While the substitution process was active, the main petition was dismissed for non-attendance when it came up for a mention without notice to the applicant. This triggered the present reinstatement application. 2|Page HOMA BAY ELC JR E005 OF 2021 – RULING

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3. Summary of the Petition and Application a) The Petitioner's Case: The petitioner asserts that his constitutional rights under Articles 10, 47, and 50 were violated through procedural unfairness, administrative errors, and fraudulent attempts to deprive him of his lawfully adjudicated 2.5-hectare land (LR KKK/KARADING 830). He maintains that an official search dated February 27, 2026, confirms him as the rightful registered proprietor. b) The Application for Reinstatement: The applicant explains that the delay and failure to attend court were occasioned by the intervening death of the 1st respondent, the protracted steps required to extract citation orders against the reluctant next of kin (Crestina Aoko Ooro), and a lack of notice regarding the specific dismissal date. 4. Issues for Determination From the application and submissions, the core issues for this Court's determination are expounded as follows: a) Whether the Court has the discretionary and inherent power to set aside the order of dismissal and reinstate the petition: The court evaluates its mandate under Section 3A of the Civil Procedure Act (Cap 21) and Order 51, Rule 15 of the Civil Procedure Rules, weighed against the constitutional imperative of substantive justice under Article 50(1), to determine if it can restore a matter dismissed due to procedural bottlenecks. b) Whether the applicant has provided a sufficient and justifiable explanation for the delay and non-attendance: The court examines whether the disruption caused by the 1st Respondent’s 3|Page HOMA BAY ELC JR E005 OF 2021 – RULING

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demise, the ensuing succession citation proceedings (Chief Magistrate's Court Succession Misc. Application No. E104 of 2024), and the lack of direct notice constitute a bona fide and excusable justification for the procedural lapse. c) Whether the petition raises triable issues/merits capable of success to warrant the protection of the court: The court reviews the substantive substance of the petition—specifically land adjudication boundaries, twin-parcel derivations from LR KKK 830, and allegations of administrative or fraudulent irregularities in ministerial appeal processes—to ensure the dispute is genuine and worthy of a full trial. d) What orders should issue as to costs: The court determines how costs should be distributed, balancing the general rule that costs follow the event against the reality that the application was necessitated by unavoidable administrative and succession constraints midlitigation. 5. Comparative Jurisprudence and Applicable Law (Kenya, Uganda, Tanzania, and Malawi) Across East Africa and Central Africa, the overarching judicial philosophy governing procedural rules has evolved away from rigid technicalities toward substantive justice: a) Kenya: Under Section 3A of the Civil Procedure Act (Cap 21), courts possess inherent powers to make orders necessary for the ends of justice or to prevent abuse of court processes. Guided by Article 50(1) of the Constitution of Kenya on the right to a fair hearing, and Order 51, Rule 15 of the Civil Procedure Rules, courts lean heavily towards hearing matters on merit rather than locking out litigants due to procedural lapses or advocate mistakes. As 4|Page HOMA BAY ELC JR E005 OF 2021 – RULING

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emphasized in Joel Pheneas Nyaga & another v Aloysius Nyaga Kanyua & another [2019] eKLR, the primary objective is to achieve substantive justice without penalizing litigants excessively for technical omissions. Furthermore, as highlighted in Karani v Cheburer (Civil Appeal E002 of 2024) [2025] KEHC 406, delay per se does not seal the fate of a suit if it is reasonably explained and causes no incurable prejudice to a fair trial. b) Uganda: In parity with Kenyan jurisprudence, Ugandan courts under the Civil Procedure Rules (and the overriding objectives enshrined in Section 1A and 1B of the Ugandan Civil Procedure Act) consistently hold that procedural rules are handmaidens of justice, not mistresses. Courts (such as in landmark decisions like Banco Arabe Espanol v Bank of Uganda) maintain that a litigant should not be deprived of an adjudication on merits unless there is gross, inexcusable delay amounting to an abuse of the court process. c) Tanzania: The Court of Appeal of Tanzania has repeatedly affirmed in civil revisions and appeals that substantive justice (mirroring Article 107(2)(e) of the Constitution of the United Republic of Tanzania) demands that courts bypass technical hurdles to determine real disputes between parties on their merits, provided that delays are satisfactorily accounted for. d) Malawi: Similarly, the Supreme Court of Appeal of Malawi upholds the principle that discretionary powers to set aside dismissal orders must be exercised liberally to secure justice, ensuring that blunders or misfortunes of legal practitioners or unavoidable administrative delays (such as substitution of deceased parties) are not unjustly visited upon innocent litigants. 6. Analysis and Determination Having evaluated the pleadings, affidavit evidence, and the legal principles cited, this Court makes the following findings on the issues: 5|Page HOMA BAY ELC JR E005 OF 2021 – RULING

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a) On Issue 1 (Discretionary and Inherent Powers): The dismissal of Petition No. E005 of 2021 occurred while the petitioner was actively navigating the complex legal requirement of substituting a deceased respondent through citation proceedings (Homabay CM Succession Misc. E104 of 2024). To penalize the petitioner by permanently shutting the court doors while a vital constitutional and land ownership dispute remains unresolved would violate the constitutional edict of fair hearing under Article 50(1). The court affirms its inherent jurisdiction to set aside the dismissal. b) On Issue 2 (Explanation for Delay and Non-Attendance): The delay has been sufficiently explained as resulting from the death of the 1st respondent and the subsequent steps required to bring his legal representative on record. The explanation demonstrates bona fides rather than an intention to slumber on rights or deliberately obstruct the course of justice. c) On Issue 3 (Prima Facie Merits): The record reveals substantive grounds concerning land adjudication boundaries, twin-parcel derivation from LR KKK 830, and allegations of administrative irregularities in ministerial appeal processes. These issues deserve a full, unhindered ventilation on their merits rather than a summary dismissal. d) On Issue 4 (Costs): Given that the application arose from unavoidable procedural steps regarding party substitution rather than willful default, the justice of the matter dictates that costs should await the final determination of the petition. 7. Disposition and Orders Accordingly, exercising this Court's inherent jurisdiction under Section 3A of the Civil Procedure Act and enabling procedural provisions, it is hereby ordered as follows: 6|Page HOMA BAY ELC JR E005 OF 2021 – RULING

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1. THAT the Notice of Motion application dated May 15, 2026, is allowed in terms of prayer 1 and 2. 2. THAT the order dismissing Environment and Land Petition No. E005 of 2021 for non-attendance is hereby set aside, and the petition is fully reinstated to the cause list for hearing and determination on its merits. 3. THAT the applicant shall duly serve the substituted respondent (Crestina Aoko Ooro) and all active parties with a mention notice within fourteen (14) days from the date of this ruling. 4. THAT the suit be mentioned on 27/10/2026 for further directions on the hearing of the main petition and notice to issue to all the Respondents. 5. THAT the costs of this application shall abide the outcome of the main petition. RULING DATED, SIGNED, AND DELIVERED VIRTUALLY AT HOMA BAY THIS 25TH DAY OF SEPTEMBER, 2026. JUSTICE J.W WANYONYI - JUDGE ENVIRONMENT AND LAND COURT AT HOMA BAY In the Presence of; 1. Wakianga for the Petitioner, 2. No appearance for the Respondents. 3. Court Assistant: Ms. Awino. 7|Page HOMA BAY ELC JR E005 OF 2021 – RULING

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