Gumba (Suing as the legal administrator of all the Estate of Aloyce Gumba Oloo - Deceased)) v Nenga alias Oduor & 2 others (Enviromental and Land Originating Summons E029 of 2022) [2026] KEELC 1607 (KLR)

4. The deponent states that he instituted this suit as a legal representative of the estate of Aloyce Gumbа dcd and that the proceedings to obtain the Ad-litem to such estate remains un challenged at the Ukwala PMC SUCC CAUSE NO.64 OF 2022. 5. That he moved this honorable court accordingly and obtained judgement on 4th April 2024. He met several resistance in executing the judgement due to frustration from both the Defendant and the intended interested party forcing him to return to court for further orders of which he obtained on 21st November 2024. 6. That after the defendant and the intended interested party noted that the village tactics were not holding water, they now embarked in filing non moving applications in court to enable them delay justice to the plaintifi/applicant instead. 7. That the application dated 25th March 2025 has very slim or no chances of success at all on grounds that the defendant in the suit John Oduor Nenga died in early 2025 before the application dated 25th March 2025 brought by him could be heard. 8. That the intended interested party is a beneficiary of the judgement delivered by this honorable court on grounds that the suit land was ordered to be registered in the names of his grand father Aloyce Gumba deceased who is father to the plaintifi/respondent hence no need to fight at this level before the succession to the estate of Aloyce Gumba deceased reaches distribution stage. 9. That the application dated 25th March 2025 if reinstated, will only award the intended interested party a fresh opportunity to delay the process and to realize his goal and only one goal: To delay execution of the judgement delivered on 4th April 2024 even for ever. That the intended interested party intentionally filed the application and decided to have it unprosecuted to but time. 10. In rejoinder the intended interested party states that the plaintifi did not consult other beneficiaries when he filed the suit and who were not heard including the deponent. That this was to enable the plaintifi be allocate the entire parcel. That the defendant was not aware of the judgement until when the plaintifi was to execute it. That the defendant being deceased does not mean that justice should not be practiced for the remaining beneficiaries. It is stated that this court has the powers to set aside the judgement due to procedural irregularities on the judgement. Submissions 11. The application was canvassed by way of written submissions. The respondents submissions are dated 5/12/2025. The applicant filed his submissions on 10/02/2026 with leave of the court/ Analysis And Determination 12. I have read the afidavits sworn in support of the application and in reply thereto. I have also given due consideration to the submissions on record. 13. It is true this court dismissed the application dated 23/3/2025 for want of prosecution with no orders as to costs on 27/10/2025. Counsel for the applicant was not present in court 27/10/2025. The court had noted that Counsel for the applicant was not present and had also been granted time to substitute. 14. The record bears that the applicant after the orders had issued addressed the court indicating that he had applied to represent himself but he had not filed the requisite notice. The court then noted that the applicant was an intended interested party and is not yet admitted in the matter. Further noted it was a post judgement matter and reiterated its orders of dismissal and advised the applicant to apply formally to the court. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1607/eng@2026-03-18 2

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15. The application before me is an application for reinstalment of the substantive application dated 25/3/2025. I must quickly observe that this not a ruling for the application dated 25/3/2025. However, I note that both parties have gone ahead and made submissions on the application dated 25/3/2025. May be the court should have directed as a case management strategy that both applications were to be heard concurrently. But what’s done is done. 16. The substantive provisions applicable given the nature of the orders sought is Order 12 Rule 7 of the Civil Procedure Rules. There is no specific rule for dismissal of applications but the principles in my view apply since an order for dismissal has been made. 17. In the case of John Nahashon Mwangi vs. Kenya Finance Bank ltd (in liquidation) [2015] KEHC 6789(KLR) the court stipulated the principles to be considered in exercising the discretion on whether or not to reinstate a case as follows: “ The fundamental principles of justice are enshrined in the entire Constitution and specifically in Article 159 of the Constitution. Article 50 coupled with article 159 of the Constitution on right to be heard and the constitutional desire to serve substantive justice to all the parties, respectively, constitutes the defined principles which should guide the court in making a decision on such matter of reinstatement of a suit which has been dismissed by the court. These principles were enunciated in a masterly fashion by courts in a legion of decisions which I need not multiply except to state that; courts should sparingly dismiss suits for want of prosecution for dismissal is a draconian act which drives away the plaintifi in an arbitrary manner from the seat of judgment. Such act are comparable only to the proverbial ‘’Sword of the Damocles’’ which should only draw blood where it is absolutely necessary. The same test will apply in an application to reinstate a suit, and a court of law should consider whether there are reasonable grounds to reinstate such a suit, of course, after considering the prejudice that the defendant would sufier if the suit was reinstated against the prejudice the Plaintifi will sufier if the suit is not reinstated.” 18. The power donated to the court to set aside its orders is therefore discretionary. The main reason expressed by the applicant is that his advocate on record did not attend court. Indeed, this is a true refiection of the record. 19. The respondent/plaintifi has raised a number of issues in opposition to the application that it is a delay tactic by the applicant and that the application dated 25/03/2025 stands no chances. However, a number of preliminary issues have been raised by the respondent/ plaintifi which the court has noted a very pertinent. However, I think the right forum would be to address them within the application dated 25/03/2025 which seeks to set aside the judgement of the court. 20. Back to the present application. The question as to whether counsels mistake should be visited upon a client has been a subject of many judicial pronouncements where the courts have been unanimous that where the mistake is excusable then it should and the court must at all times lean on upholding justice. See Belinda Murai & Others Vs Amos Wainaina (1978) KLR 278; Phillp Chemwolo & another Vs Augustine Kubebe (1982-88)KAR 21. The applicant also states he has been attending court. As noted earlier in this ruling the applicant was present in court. 22. For the foregoing reasons I would be inclined to reinstate the application dated 25/03/2025. 23. The following orders therefore issue to dispose of the application dated 27/ 10 /2025 https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1607/eng@2026-03-18 3

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24. The application dated 27th October 2025 be and is hereby allowed with costs to the respondent. 25. The following further orders issue. I have already noted that both parties have made substantive submissions on the application dated 25/03/2025 and noting that responses thereto had been filed. I will proceed to reserve a date for a ruling on the application dated 25/03/2025. Orders accordingly DELIVERED AND DATED AT SIAYA THIS 18TH DAY OF MARCH 2026 HON. LADY JUSTICE A.E. DENA JUDGE 18/03/2026 Ruling delivered virtually through Microsoft teams Video Conferencing Platform in the presence of: No appearance for the Plaintifi No appearance for Defendant (deceased) Joseph Gumba Othieno Intended Interested Party Court Assistant: Ishmael Orwa https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1607/eng@2026-03-18 4

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