Kimundui & another v Macharia & 2 others (Environment and Land Case 737 of 2017) [2026] KEELC 3246 (KLR)

1. That an Order striking out and dismissing the matter was made on 21/10/2025. 2. That the dismissal of the application was occasioned by the non-attendance of the Advocate for the Applicants, who encountered unforeseen technical dificulties while attempting to log into the virtual Court session. 3. That by the time the Advocate successfully logged into the proceedings, the Honourable Judge had already disposed of the matter and issued the order of dismissal. 4. That a technical hitch beyond the control of the Advocate should not be visited upon the litigants, as the mishap was neither intentional nor contumacious. 5. That in the interest of substantive justice, the order of dismissal should be set aside and/or reviewed, and the Applicant be granted an extension of time to set the application down for hearing. 6. That the Applicants herein are ready and willing to abide by any directions or conditions set by the Court. 3. The 1st Defendant, Joyce Wanjiku Macharia, deposes this Replying Afidavit on her own behalf and with the express authority of the 2nd and 3rd Defendants to vehemently oppose the Plaintifi’s Notice of Motion dated 22/10/2025. The deponent avers that the Plaintifi’s application, which seeks to set aside or review the Court’s orders of 21/10/2025 dismissing the previous application of 3/06/2025, is devoid of merit and an abuse of the Court process. 4. The key issue in the opposition rests on the fact that the dismissal for want of prosecution was not merely due to the Plaintifi’s Counsel’s purported technical dificulties in logging into the virtual Court, but rather a substantive failure to comply with clear Court directions issued on 22/07/2025 regarding the filing of Supplementary Afidavits and written submissions. 5. The Defendants contend that the delay in compliance is inordinate, inexcusable, and remains unsatisfactorily explained. Furthermore, the deponent raises a procedural objection, noting that since the Plaintifi has not specifically sought orders to reinstate the dismissed application of 3/06/2025, the draft submissions annexed to the current motion cannot be legally admitted as there is no subsisting application before the Court. 6. It is further deponed that this litigation, which commenced in 2015 and culminated in a final Judgment delivered on 27/01/2025, is being unnecessarily protracted by the Plaintifi’s dilatory tactics. The Defendants argue that after failing to pursue a Notice of Appeal filed six months prior, the Plaintifi is now attempting to re-litigate a determined matter under the guise of clarification, which ofiends the doctrine of res judicata and the principle of finality in litigation. The 1st Defendant maintains that the present application is a frivolous afterthought intended to frustrate the Defendants from enjoying the fruits of their Judgment. Consequently, the Defendants pray that the application be dismissed with costs. 7. The Application was canvassed by way of written submissions which parties filed and I have had a chance to scrutinize them. 8. Having considered the pleadings, Afidavits filed and the written submissions I am convinced that the following issues if addressed will help address the application: a. Whether the Applicant’s failure to specify the legal provisions anchoring the Notice of Motion renders the application fatally defective. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3246/eng@2026-05-28 2

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b. Whether a claim of technical hitches during a virtual hearing can excuse a substantive and prolonged failure to comply with previous Court directions. c. Whether granting the application would unjustly infringe upon the principle of finality and the Respondents' right to enjoy the fruits of a Judgment delivered after a decade of litigation. 9. The Court observes that the Applicant has moved the Court without citing the specific enabling provisions of the law. Thus, the application fails to cite the specific Sections of the Civil Procedure Act or the Rules that would give this Court the jurisdiction to grant the orders sought. 10. While Article 159(2)(d) of the Constitution of Kenya 2010 and the oxygen principle under Sections 1A and 1B of the Civil Procedure Act (Cap 21) enjoin this Court to lean towards substantive justice rather than procedural technicalities, the failure to anchor the application on specific law contributes to a lack of jurisdictional clarity. Further, whereas the oxygen principle philosophy prioritizes the heartbeat of justice over the cold letter of procedural technicalities this does not grant a party a license to be professionally sloppy. 11. As Black’s Law Dictionary reminds us, procedure is the essential vehicle through which legal rights are vindicated. A vehicle without an engine cannot move, and an application without a legal anchor often struggles to find its footing. Nonetheless the Court will not strike out the Motion solely on this basis if the substance is clear. Notably though, the lack of a specific anchor such as Order 45 for Review or Order 12 Rule 7 for Setting Aside weakens the Applicant’s jurisdictional footing. 12. The Applicant’s primary contention is that the dismissal was a result of a technical hitch during a virtual Court session which prevented timeous attendance. However, the Respondents have efiectively countered this by demonstrating that the dismissal was not a mere response to a single day’s absence but was rooted in a substantive and prolonged failure to comply with Court directions issued on 22/07/2025. 13. The Applicant’s primary contention is that the dismissal was a result of a technical hitch during a virtual Court session which prevented timeous attendance. However, the Respondents have efiectively countered this by demonstrating that the dismissal was not a mere response to a single day’s absence but was rooted in a substantive and prolonged failure to comply with Court directions issued on 22/07/2025. 14. In analyzing the merits, the Court is guided by the established principle in Shah v. Mbogo [1967] EA 116, which clarifies that judicial discretion to set aside a dismissal is intended to prevent a miscarriage of justice but should not be extended to a party whose conduct is characterized by laches or intentional delay. The Applicant had nearly three (3) months to comply with the directions regarding the filing of Supplementary Afidavits and submissions but failed to do so without an explanation. A technical dificulty on the morning of the Mention cannot be used to white-wash a history of dilatoriness. 15. This litigation commenced in 2015 and a final Judgment was delivered on 27/01/2025 this is a whole ten (10) years and counting. As defined in Black’s Law Dictionary, the principle of res judicata and the doctrine of finality require that there be an end to litigation. The Respondents are entitled to enjoy the fruits of their Judgment, and as held in Ivita v. Kyumbu [1984] KLR 441, a delay that is inordinate and inexcusable, as is the case here, warrants the dismissal of the suit or application. To reinstate the matter would be to allow the Applicant to re-litigate a determined suit by proxy, thereby prejudicing the Respondents and undermining the integrity of the judicial process. 16. The Applicant filed a Notice of Appeal but failed to pursue it, only to file the June 2025 application. In Raila Odinga & 5 Others v. Independent Electoral and Boundaries Commission & 3 Others [2013] https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3246/eng@2026-05-28 3

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eKLR, the Supreme Court emphasized the principle of finality. A party cannot be allowed to keep a matter in abeyance through endless interlocutory applications, especially after a suit that commenced in 2015 has reached Judgment. To set aside the dismissal would be to allow the Applicant to continue re-litigating by proxy, thereby denying the Respondents the fruits of their Judgment a concept protected in South Africa in the case of MEC for Health, Eastern Cape v. Mkhitha (1221/2015) [2016] ZASCA, where it was noted that a successful litigant is entitled to the finality of the Court's order. 17. In conclusion I am of the view that the Applicant's failure to comply with the directions of 22/07/2025 is the primary cause of the dismissal. The technical hitch on the date of the Mention was merely the final symptom of a deeper malaise of dilatoriness. 18. As earlier stated, the Applicant has not provided a satisfactory explanation for the delay between July and October 2025. In the absence of an explanation for the substantive non-compliance, the technical hitch is insuficient to warrant the exercise of this Court’s discretion. 19. This matter dates back to 2015 and as is the case, there must be an end to litigation. The application appears to be a stratagem to stay the execution of a lawful Judgment without following the proper appellate route. 20. In the end I make the following orders: i. The Applicant’s Notice of Motion dated 21/10/2025 be and is hereby dismissed in its entirety. ii. The orders of this Court issued on 21/10/2025 dismissing the application dated 3/06/2025 for want of prosecution are hereby upheld. iii. The costs of this application are awarded to the Respondents. It is so ordered. DATED SIGNED AND DELIVERED VIRTUALLY AT THIKA VIA VIDEOLINK THIS 28TH DAY OF MAY, 2026. ……………………… MOGENI J JUDGE In the presence of: Ms. Ndavuta holding brief for Mburu Machua for the Plaintifi Ms. Koki for the Defendant Mr. Melita - Court Assistant ……………………… MOGENI J JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3246/eng@2026-05-28 4

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