Tortoise Investments Ltd & 7 others v Heather Properties Ltd & 3 others (Environment and Land Case 1167 of 2016 & 938 of 2015 & 606 of 2017 (Consolidated)) [2026] KEELC 4227 (KLR)
The bottom line
#The Environment and Land Court refused to revive the Applicants' dismissed land case because they could not credibly explain why they ignored hearing dates they had agreed to.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether the judgment of 8th May 2025 in NRB ELC NO. 1167 OF 2016 and all consequential orders/proceedings should be set aside
Key legal issues
#Whether the Applicants demonstrated sufficient cause to set aside the judgment of 8th May 2025 under Order 12 Rule 7 of the Civil Procedure Rules
They did not; their explanation of an unreachable contact person was unsupported by any documentary evidence and their post-dismissal inactivity of nearly ten months was unexplained
The hearing dates had been fixed by consent on 22nd July 2024, affording over five months' notice. The Applicants asserted their sole contact person was abroad and unwell but produced no travel documents, medical records or correspondence. As corporate entities, they could not explain why prosecution of the suits depended on a single individual. The court found the explanation speculative and the delay substantial and unexplained.
Whether the proceedings of 3rd and 4th December 2024 violated the Applicants' right to a fair hearing under Article 50(1)
No; the Applicants were afforded a reasonable opportunity to be heard which they failed to utilise, and cessation of representation did not invalidate dates already taken by consent
The court held that Article 50 guarantees a reasonable opportunity to be heard but does not shield a litigant from the consequences of indolence. The hearing dates predated the advocates' applications to cease acting, the court had declined an adjournment and directed the hearing to proceed, and nothing prevented the Applicants from attending personally or appointing new counsel.
Legal principles established
#- The discretion to set aside a judgment or dismissal under Order 12 Rule 7 is intended to avoid hardship from accident, inadvertence or excusable mistake, not to aid a party who deliberately obstructs justice
- Notice to an advocate acting for a party is deemed notice to the party
- The right to a fair hearing guarantees a reasonable opportunity to be heard but does not protect a litigant from the consequences of failing to utilise an opportunity lawfully afforded
- Sufficient cause must be rational, plausible, logical, convincing, reasonable and truthful, leaving no unexplained gaps
Court orders
#- 1.The Notice of Motion dated 28th October, 2025 is dismissed
- 2.Costs of the application awarded to the Respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 50 of the Constitution and Sections 1A, 3A of the Civil Procedure Act; Order 12 Rule 7 of the Civil Procedure Rules
- Consolidated with
- ELC No. 938 of 2015, ELC No. 606 of 2017
Relief refused
#Setting aside of the judgment delivered on 8th May 2025 in NRB ELC No. 1167 of 2016 and all consequential orders/proceedings
Applicants failed to demonstrate sufficient cause; their explanation of being unreachable was unsubstantiated and the delay of nearly ten months was unexplained
Vacation of the proceedings and orders of 3rd and 4th December 2024 and hearing of the consolidated suit de novo
Hearing dates were fixed by consent; notice to advocate is notice to the party; no procedural irregularity was shown
Costs
The application is dismissed with costs to the Respondents
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the end, the court finds Notice of Motion dated 28th October, 2025 to be unmerited. The same is dismissed with costs.
the court is not persuaded that the Applicants have demonstrated suficient cause to warrant the exercise of this court's discretion in their favour under Order 12 Rule 7 of the Civil Procedure Rules.
It does not protect a litigant from the consequences of failing to utilise an opportunity lawfully afiorded by the court.
the primary responsibility for progressing a suit rests with the litigant who has invoked the court's jurisdiction.
The discretion to set aside an ex-parte judgment is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error but it is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the cause of justice.
Issues in the judgment
#The judgment recites the Plaint in ELC No. 938 of 2015 as dated 29th September 2015 at one point but as dated 29th September 2017 elsewhere
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tortoise Investments Ltd & 7 others v Heather Properties Ltd & 3 others (Environment and Land Case 1167 of 2016 & 938 of 2015 & 606 of 2017 (Consolidated)) [2026] KEELC 4227 (KLR)", Case Analysis (2026). ELC NO. 1167 OF 2016 (Consolidated with ELC No. 938 of 2015 and ELC No. 606 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4227/eng@2026-07-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.