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ELCPartially AllowedPetition dated 26th November, 2021 (Motion dated 14th February, 2025)

Honey Creepers Investments Limited v Attorney General & 3 others; Ethics and Anti-Corruption Commission (Interested Party) (Environment & Land Petition E049 of 2021) [2025] KEELC 4491 (KLR)

Environment and Land Court
16 June 2025
7,929 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~32 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court reinstated Jiwan Limited's land compensation case after dismissal, ruling a dismissed petition can be revived under Order 12 Rule 7.

What this practically means

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Executive summary

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By a Motion dated 14th February, 2025, the Petitioner sought review, setting aside and vacating of the court's order of 29th January, 2025 dismissing its Petition (challenging the compulsory acquisition of L.R No 209/14392 without compensation and a caveat over the title) for want of prosecution, and reinstatement of the Petition for hearing on its merits. The Petitioner explained that the joinder of the Interested Party (EACC) introduced new allegations, including that the original allottee, Cab Investments Limited, was a non-existent company, requiring retrieval of documents relating to a transaction over 23 years old. The Respondents and Interested Party opposed, contending the court lacked jurisdiction as it was functus officio, that the Motion was res judicata and an abuse of process, and that the Petitioner had squandered every chance to comply. The court framed two issues: the competence of the Motion and whether the Petition should be reinstated. It held the Motion was not barred by res judicata or issue estoppel since reinstatement was a distinct issue from the earlier adjournment request. Because the dismissal flowed from the Petitioner's absence and lack of witnesses, it fell under Order 12 of the Civil Procedure Rules, and Order 12 Rule 7 conferred jurisdiction to set it aside, so the court was not functus officio. On reinstatement, although the Petitioner's conduct fell short, it had diligently prosecuted its case before the joinder; triable issues existed on the constitutional property claim; and no material prejudice would be suffered by the Respondents. The court set aside the dismissal order of 29th January, 2025, reinstated the Petition, and ordered the Petitioner to bear the costs of the Motion.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Motion is competent (res judicata, issue estoppel and functus officio)?
  2. 2.Whether the court should reinstate the Petition?

Key legal issues

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01

Competence of the Motion (res judicata, issue estoppel, functus officio)

Holding

The Motion is competent: it is not res judicata and the court is not functus officio because the dismissal fell under Order 12, which provides a mechanism for setting aside.

Reasoning

The court distinguished the reinstatement application from the earlier adjournment request, holding the issues distinct so res judicata and issue estoppel do not apply. Because the crucial factor in the dismissal was the Petitioner's absence and lack of witnesses, Order 12 (not Order 17) applied. Order 12 Rule 7 confers jurisdiction to set aside such dismissals, so entertaining the Motion is not sitting on appeal over its own decision.

p. 12
02

Whether the Petition should be reinstated

Holding

Yes. Although the Petitioner's conduct fell short, the totality of circumstances - prior diligent prosecution, respondents' own adjournments, existence of triable issues and absence of prejudice - favours reinstatement in the interests of substantive justice.

Reasoning

The Petitioner had diligently prosecuted its case before the Interested Party's joinder, which raised new issues (allegation that Cab Investments is non-existent) requiring old documents. The Petitioner delayed in seeking the documents, which the court criticised, but respondents themselves had sought multiple extensions. The Petition raises bona fide triable issues on compulsory acquisition without compensation, and reinstatement would occasion no material prejudice.

p. 15

Legal principles established

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  • A dismissal for want of prosecution where the petitioner was absent and not ready to proceed falls under Order 12 of the Civil Procedure Rules, and Order 12 Rule 7 vests the court with jurisdiction to set aside such dismissal on application.
  • Res judicata and issue estoppel do not bar a reinstatement application merely because the same grounds were advanced when the adjournment was refused; the issues are distinct.
  • The discretion to set aside a dismissal must be exercised judiciously to avoid hardship from accident, inadvertence or excusable mistake, and requires demonstration of sufficient cause.

Court orders

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  1. 1.The orders issued on the 29th January, 2025 be and are hereby set aside.
  2. 2.The Petition is hereby reinstated.
  3. 3.The Petitioner shall bear the costs of the Notice of Motion dated 14th February, 2025.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Articles 50 and 159(2)(d) of the Constitution; Sections 3(1) and 19(1), (2) of the Environment and Land Court Act, 2011; Order 12 Rule 7 of the Civil Procedure Rules

Relief refused

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Adoption of previous proceedings and direction that the Petitioner's witnesses give further evidence

Not among the orders finally granted; the court only set aside the dismissal and reinstated the Petition

Costs of the application in the cause

The court instead ordered the Petitioner to bear the costs of the Motion

p. 15

Costs

The Petitioner shall bear the costs of the Notice of Motion dated 14th February, 2025.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

This provision vests this court with jurisdiction to revisit and, if merited, set aside a dismissal order. It follows therefore, that the court is not functus oficio and it cannot be said that in entertaining the Motion, it is sitting on appeal over its own decision. Ultimately, it is the finding of the court that this Motion is competent.
p. 12Jurisdiction under Order 12 Rule 7 / functus officio
Ultimately, the court rejects the contention that this Motion is res judicata and/or triggers the principle of issue estoppel.
p. 9Res judicata and issue estoppel
The orders issued on the 29th January, 2025 be and are hereby set aside.
p. 15Final orders - setting aside dismissal
The Petition is hereby reinstated.
p. 15Final orders - reinstatement
Ultimately, court finds that the interests of substantive justice would be best served by allowing the reinstatement of the Petition.
p. 15Substantive justice and right to be heard

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Honey Creepers Investments Limited v Attorney General & 3 others; Ethics and Anti-Corruption Commission (Interested Party) (Environment & Land Petition E049 of 2021) [2025] KEELC 4491 (KLR)", Case Analysis (2025). Petition dated 26th November, 2021 (Motion dated 14th February, 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4491/eng@2025-06-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.