Paskwaline Mwendwa Kirima & another v Joanina Kiario M,kwaria
The bottom line
#Kenya's Environment and Land Court reinstated an appeal dismissed after a lawyer missed court, ruling honest mistakes can be fixed by paying costs.
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 subject application is prohibited by the doctrine of res judicata or otherwise
- 2.Whether the applicants have the requisite capacity to be substituted in place of the deceased
- 3.Whether the applicants have established sufficient basis to warrant the setting aside of the orders made on 13.07.2026
Key legal issues
#Res judicata
Res judicata is irrelevant and inapplicable because the previous application dated 01.07.2026 was dismissed for non-attendance and was never heard on merits; the current application also seeks different reliefs, including reinstatement of the previous one
The court held that the doctrine of res judicata springs into action only where a previous suit or application has been heard and determined on merits. The application of 01.07.2026 was dismissed for counsel's non-attendance, not on merits. Further, the present application seeks reinstatement of the dismissed application, which is a different relief. Counsel for the respondent therefore misapprehended the doctrine and its elements.
Capacity to be substituted
The applicants, holders of an amended full grant of letters of administration issued on 07.07.2026, have the requisite capacity to be substituted for the deceased as joint administrators
The applicants exhibited an amended grant of letters of administration issued on 07.07.2026, which conferred capacity to be substituted in place of the deceased, per Sections 79 and 82 of the Law of Succession Act. The court noted the 1st applicant had earlier obtained letters ad litem enabling the appeal, but the full grant now supports substitution in their joint 'corporate' capacity as administrators. The threshold for substitution was met.
Setting aside dismissal for non-attendance
The applicants established sufficient cause: the dismissal resulted from an excusable mistake of previous counsel, their assertions were uncontroverted, and they moved promptly upon discovery
The respondent filed no replying affidavit, so the applicants' assertions stood uncontroverted and appeared honest and bona fide. The mistake of counsel fell within the cluster of excusable mistakes. Courts exist to administer justice, not to punish defaulting parties, guided by Article 159(2)(a) and (d) of the Constitution and the equity approach in Chemwolo v Kubende that absent fraud, no default cannot be cured by payment of costs.
Legal principles established
#- The doctrine of res judicata only applies where the previous suit or application was heard and determined on merits; a dismissal for non-attendance does not trigger it
- Mistakes or inadvertence of counsel, absent fraud or intention to overreach, are excusable and should not deprive a party of a hearing on the merits
- Letters of administration confer on administrators the capacity to be substituted for a deceased party and to continue proceedings
Court orders
#- 1.The application dated 03.08.2026 be and is hereby allowed
- 2.The law firm of Ms. Muchomba Law Advocates granted leave to come on record in place of the outgoing advocates
- 3.The applicants substituted and constituted as the appellants in their capacities as joint administrators of Evagaline Mukomeru Kirima (deceased)
- 4.The orders of the court issued on 13.07.2026 be and are hereby set aside
- 5.The application dated 01.07.2026 reinstated for hearing and determination on merits
- 6.The application dated 01.07.2026 to be heard inter-partes on 13.10.2026
- 7.The appellants granted leave to amend the memorandum of appeal
- 8.The amended memorandum of appeal to be filed and served within 7 days
- 9.The applicants to pay throw away costs of Kshs. 15,000/= only to the advocates for the respondent
- 10.The costs in terms of clause (ix) to be paid within 14 days
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrates' Court (SPM) at Githongo
- Githongo MCELC No. E007 of 2023
- Jurisdiction invoked
- Order 9 Rule 9 and Order 24 Rule 3 of the Civil Procedure Rules, 2010; Sections 1A, 1B and 3A of the Civil Procedure Act (Cap. 21)
Relief refused
#Prayer (i) for stay of execution of the judgment/decree of Hon. Lyna Sanapai – SPM
Not granted in the final orders; the respondent had argued the decree had been extracted and served on the land registrar, but the court simply did not include the stay in the final orders
Costs
The applicants shall pay throw away costs of Kshs. 15,000/= only to the advocates for the respondent, payable within 14 days; costs of the application to be in cause as sought was superseded by this order
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.
It is common ground that the doctrine of res judicata only springs into action where the previous suit /application [whichever is the case] has been heard and determined on merits.
The Application dated the 03.08.2026 be and is hereby Allowed.
The orders of the court issued on the 13.07.2026 be and are hereby set aside.
The application dated the 01.07.2026 be and is hereby reinstated for hearing and determination on merits.
The applicants shall pay throw away costs of Kshs. 15,000/= only to the advocates for the respondent.
The court, as is often said, exists for the purpose of deciding the rights of the parties and not for the purpose of imposing discipline.
Issues in the judgment
#Deceased's name spelled inconsistently between body and final orders
Prayer (ii) for stay of execution omitted from final orders despite the application being allowed in full
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Paskwaline Mwendwa Kirima & another v Joanina Kiario M,kwaria", Case Analysis (2026). ELC APPEAL E071 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6098/eng@2026-09-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.