Onyango v Angagag & another (Environment and Land Case E133 of 2018) [2025] KEELC 8028 (KLR)

b. That the honourable court be pleased to grant leave to the Applicant herein to be substituted as the Plaintifi herein instead of Herman Orwa Onyango (Deceased). c. That the Honourable Court be pleased to review and set aside the orders arising from the ruling of this court on 29th March, 2023 dismissing this suit for being abated and all consequential orders. d. That the Honourable Court be pleased to reinstate this matter to full hearing and determination. e. That the costs be in the cause. 3. The application is premised on grounds stated on the face of the application as well as the supporting afidavit of Jefi Onyango Orwa, the Applicant herein. The Applicant states that the plaintifi, who was his father instituted a suit on 23rd March, 2019 and inhibition orders were granted to him. 4. The Applicant also stated that, during the pendency of the suit, the parties consented that plaintifi works on a 0.6 hectare portion of the whole land the defendant works on the rest. The court ordered a surveyor to create a visible boundary between the parcels so as to enable the parties to work on their respective portions as consented which boundary was created. 5. Further to the above, the Applicant stated that his father, the plaintifi herein was ailing while the suit was still ongoing and eventually died. Thereafter, the Applicant was nominated as the administrator of the estate of his deceased father, but he also fell ill after initiating the process of acquiring the requisite succession documents. He stated that he was only able to acquire the succession documents on 19th October 2023 but thereafter fell ill and was unable to instruct his advocates to pursue the suit. 6. The Applicant maintained that the estate of his late father did all it could to ensure that the suit was prosecuted and that it was not intentional that the suit was left to abate. 7. It was the Applicant’s averment that the Respondent is currently destroying the common boundary as well as cutting down trees on the suit property. He stated that the Respondent is on the verge of evicting his family and also plans the exhume the body of his deceased father from the suit property. 8. The Applicant relied on Article 159 of the Constitution to urge this court to dispense with the procedural technicalities relating to the matter and allow the same to proceed. He stated that he was ready and willing to prosecute the matter to its conclusion. 9. Lastly, the Applicant stated that allowing the application will not prejudice the Respondent and that the application was brought in good faith and in the interest of justice and fairness. 10. Annexed to the Applicant’s application is a copy of the court order dated 28th March 2019 marked JOO 01, the surveyors report marked JOO 02, the plaintifi’s death certificate marked JOO 03, Medical letter and discharge form marked JOO 04, letters of administration ad litem marked JOO 05, Several photographs of the alleged destruction of the boundary and felling of trees marked JOO 06. The Response 11. The Respondent filed his replying afidavit dated 11th August 2025 and maintained that he is the registered owner of the suit property. He stated the plaintifi’s suit was dismissed by the court for want of prosecution. He annexed the court’s ruling dated 28th March 2023. Additionally, he stated that the suit had abated pursuant to Order 24 Rule 3 (2) of the Civil Procedure Rules, 2010 for failing to substitute the original owner following the death of the plaintifi. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8028/eng@2025-11-20 2

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12. The Respondent maintained that the Applicant has been filing applications to reinstate the suit, the instant one being his third attempt. He stated that all the previous attempts to reinstate the suit had been declined by the court. These repeated attempts to revive the suit, the Respondent maintained, amounted to abuse of court process by the Applicant. He stated that this new application did not raise any new grounds as to warrant the setting aside of the orders of the court with regard to the abatement and dismissal of the suit. 13. In addition to the afore-stated, the Respondent stated that the Applicant had not been diligent in prosecuting the suit and that the delay in the prosecution of the suit was not explained, save for the Applicant’s claims of illness, which he argued could not override statutory timelines and the Respondent’s rights. 14. The Respondent also maintained that if the suit is allowed to proceed, he would sufier prejudice since he has been developing the suit property during the periods of the Applicant’s inactions as well as incurring legal costs while defending applications made by the Applicant. 15. Lastly, the Respondent argued that revival of the suit was contrary to the express provisions of Order 24 Rule 3(2) and 7(2) of the Civil Procedure Rules and that the application was brought in bad faith as it was aimed at reopening litigation that had come to an end. Submissions 16. The application was canvassed by way of written submission. The Applicant filed his dated 3rd April 2025. He submitted that the failure to prosecute the matter on the part of his late father’s estate was not intentional. rather, the same was occasioned by illness, before he could obtain the necessary documents relating to the succession of his father’s estate and immediately after obtaining letters of administration ad litem hence the Applicant’s inability to instruct his counsel to substitute the plaintifi. 17. The Applicant called to his aid, the provisions of Order 10 Rule 11 as well as Order 12 Rule 7 of the Civil Procedure Rules, 2010. The former provision grants court the power to set aside ex-parte judgments and consequential decrees and/or orders under just terms while the later provision gives courts the discretion to set aside, review or reinstate suits dismissed for non-attendance and nonprosecution. 18. The Applicant argued that reinstating the case would be fair and that doing otherwise would be unfair as it would be tantamount to condemning the Applicant unheard. he relied on Articles 48 and 50 of the Constitution as well as Reynolds Construction co. Ltd (Nig) v Festus M’arithi M’mboroki [2022] eKLR to support his argument. 19. Lastly, the Applicant argued that he is willing to prosecute the matter since he, together with his fathers ‘family are likely to be evicted from the suit property. he submitted that the scales of justice tilts in his favor and thus urged this court to allow the application. 20. The Respondent did not file his written submissions. Be that as may the Court has the obligation to determine the application on merits since submissions are only a marketing tool for parties. This has been restated in many decisions, including Moi, CGH v Muriithi & another (Civil Appeal 240 of 2011) [2014] KECA 642 (KLR) (9 May 2014) (Judgment) wherein the Court of Appeal held; “ Submissions are generally parties’ “marketing language”, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8028/eng@2025-11-20 3

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at all. Indeed, there are many cases decided without hearing submissions but based only on evidence presented.” 21. This then turns me to the crux of the application. Issues, analysis and determination 22. The main issue for determination in the instant application is whether the application is merited. Attendant to this issue is who should bear the costs of the application. 23. Although the Applicant refers to a ruling of the court dated 29th March 2023, a perusal of the court record shows that the court did not deliver a ruling in this matter on the said date. Rather, the court pronounced itself on 28th March, 2023. Be that as it may, this court will proceed on the assumption that the date was a typographical error and therefore the ruling impugned is the ruling delivered on the latter date and it is the one the Applicant wishes to have the court set aside since the orders granted therein are the same as the orders the Applicant wishes to be set aside. 24. At paragraphs 15 and 16 of this court’s ruling the court held as follows: 15. Guided by the above decision; this court finds that there being no Application for substitution of the plaintifi or for the extension of time within the requisite 1 year (12 months), the suit has abated. Further, there has been no suficient justification or explanation tendered for the extension of the interim orders of status quo/ injunction in place at the expense of the Applicant; the Plaintifi’s successors have not shown any interest in prosecuting the matter to its logical conclusion. 16. The upshot of the foregoing analysis is that the application dated November 30, 2022 is merited. The Plaintifi’s suit is hereby struck out…” 25. The Respondent in his Replying Afidavit averred that the Applicant had made several applications seeking to have this matter reinstated, and the same were dismissed by this court. This, according to the Respondent amounts to abuse of court process and hence warrants dismissal of the application. 26. I have examined the court record and noted that indeed, the Applicant herein made an application with similar prayers to the instant one on 19th August 2024. The court record also indicates that both parties fixed a hearing date for this application on 26th February, 2025 by consent. However, on the said hearing date, the Applicant was absent and only the defendant attended court. Consequently, the court dismissed the application with costs to the Applicant. Then now follows a similar application: the instant one. 27. Having so found, then can the instant application be said to with merit? I do not think so. The reason is that the Applicant went forth and made a fresh application to court seeking orders of reinstatement of the suit, knowing very well that the orders issued by this court on 26th February 2025 have neither been set aside nor reviewed or appealed from successfully. Thus, the position is, by the orders of 26thFebruary 2025 this Court pronounced itself on the prayers sought in the instant application by that dismissal. Therefore, the instant application dated 24th March 2025 is vexatious and an abuse of court process. Consequently, I find that the application without merit and dismissed it with costs to the Respondent. 28. It is so ordered. RULING DATED SIGNED AND DELIVERED VIRTUALLY VIA THE TEAMS PLATFORM THIS 20TH DAY OF NOVEMBER 2025 HON. DR. IUR NYAGAKA https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8028/eng@2025-11-20 4

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JUDGE In the presence of, Ms. Ogutu for the Applicant No Appearance for the Respondent (though served). https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8028/eng@2025-11-20 5

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