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ELCDismissedNot stated in the judgment as provided

Njubi v Nairobi City Water & Sewerage Company & 2 others (Environment and Land Case E313 of 2022) [2025] KEELC 5958 (KLR)

Environment and Land Court
26 August 2025
1,701 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court refused to reinstate a land suit dismissed after the plaintiff ignored a hearing notice, ruling that a year's delay showed laziness, not a mistake.

What this practically means

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Executive summary

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The plaintiff/applicant moved the Environment and Land Court by notice of motion dated 4th January 2025, under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, seeking setting aside of the orders of 13th December 2023 dismissing her suit for want of prosecution, reinstatement of the suit, and costs in the cause. She attributed her non-attendance to her then advocates on record, the firm of Nasimiyu & Co. Advocates, whom she said had not informed her of the hearing date. The 1st and 3rd defendants/respondents opposed, asserting personal service of the hearing notice, that the plaintiff had no advocate on record at the time (the application to cease acting having been served on her), that she was aware of the taxation proceedings thereafter, and that the application, filed over a year later, was an afterthought marred by inordinate delay. The court framed a single issue: whether it could or ought to set aside the orders of 13th December 2023. Relying on Shah v Mbogo and Njue Njagi v Ephantus Njiru, the court held the hearing notice was served and undisputed, that the claim of continued representation was incorrect, and that the Order 9 Rule 13(1) argument raised only in submissions was irrelevant. The court found the delay evidenced pure indolence rather than mistake of counsel and declined to exercise its discretion in favour of an indolent litigant. The application was dismissed with each party bearing its own costs.

Questions the Court framed

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

  1. 1.Whether this court can/ought to set aside the orders made on 13th December 2023 dismissing the suit and reinstate it for hearing

Key legal issues

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01

Whether the court ought to set aside the dismissal orders of 13th December 2023 and reinstate the suit

Holding

The application was dismissed; the plaintiff was served with the hearing notice and had ceased to have an advocate on record, and her conduct demonstrated indolence rather than excusable mistake

Reasoning

The court found the hearing notice was personally served and never disputed, and that the application by Nasimiyu & Co. Advocates to cease acting had been served on the plaintiff, negating her claim of continued representation. Her participation in taxation proceedings showed awareness of the suit's status. Bringing the application more than a year after dismissal was an afterthought. The discretion under Shah v Mbogo exists to correct accident, inadvertence or excusable mistake, but is not available to an indolent party.

p. 3
02

Whether the plaintiff's failure to attend court was attributable to counsel (mistake of counsel)

Holding

No - the claim that she was still represented was untrue, and the Order 9 Rule 13(1) argument raised in submissions was irrelevant at that stage

Reasoning

The court record showed the firm of Nasimiyu & Co. Advocates had filed an application to cease acting, which was served upon the plaintiff. Her assertion that she believed she was still represented contradicted the record. The argument that the firm failed to comply with Order 9 Rule 13(1) was introduced only in submissions and therefore irrelevant. The court thus rejected the mistake-of-counsel justification underlying the application.

p. 3

Legal principles established

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  • A court has discretion to set aside a judgment or order to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake, but will not exercise that discretion to aid an indolent litigant
  • Dismissal of a suit for non-attendance by the plaintiff or for want of prosecution amounts to a judgment in that suit

Court orders

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  1. 1.The notice of motion dated 4th January 2025 is dismissed
  2. 2.Each party to bear its own costs

The bench

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

MC
majority

Wrote the judgment

Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules

Relief refused

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Setting aside the orders of 13th December 2023 dismissing the suit and reinstatement of the suit for hearing

The plaintiff was duly served with the hearing notice, was aware of the proceedings (including taxation), and the delay of over a year evidenced indolence rather than mistake of counsel

p. 4

Costs of the application in the cause

The application was dismissed with each party bearing its own costs

p. 4

Costs

Each party to bear its own costs

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 is clearly not a case of mistake of counsel but rather pure indolence on the part of a litigant. Unfortunately, this court cannot exercise its discretion to aid a party who is indolent.
p. 4Discretion not exercisable in favour of an indolent litigant
The notice of motion dated 4th January, 2025 lacks merit, it is a waste of the court’s precious time, and it is hereby dismissed. Each party to bear its own costs.
p. 4Final orders - dismissal of the application and costs
This court has discretion to set aside judgment or order to avoid injustice or hardship resulting from an accident, inadvertence or excusable mistake
p. 3Scope of discretion to set aside ex parte orders (Shah v Mbogo)
dismissal of a suit for nonattendance by the plaintifi or for want of prosecution amounts to a judgment in that suit.
p. 3Nature of dismissal for want of prosecution (Njue Njagi v Ephantus Njiru)

Issues in the judgment

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minor

The case number of the suit and the parties' names do not appear in the judgment text provided; only roles (plaintiff/applicant, 1st and 3rd defendants/respondents) are given.

minor

The judgment does not state the fate or presence of the 2nd defendant/respondent; only the 1st and 3rd defendants filed replying affidavits.

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, "Njubi v Nairobi City Water & Sewerage Company & 2 others (Environment and Land Case E313 of 2022) [2025] KEELC 5958 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5958/eng@2025-08-26

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