Kithi v George & 9 others (Land Case Appeal E063 of 2026) [2026] KEELC 3801 (KLR) (17 June 2026) (Ruling) Neutral citation: [2026] KEELC 3801 (KLR) REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT MALINDI LAND CASE APPEAL E063 OF 2026 FM NJOROGE, J JUNE 17, 2026 BETWEEN JULIUS KATANA KITHI ....................................................................... APPELLANT AND KAZUNGU FANDE GEORGE & 9 OTHERS & 9 OTHERS & 9 OTHERS ................................................................................................ RESPONDENT RULING 1. The application dated 17th February 2026 has been brought by the appellant, Julius Katana Kithi. It is seeking the following orders: a. That pending hearing and determination of the appeal the court be pleased to reinstate the application dated 31st October 2024 which was dismissed for one of prosecution on the fourth day of February 2026 with a view to have the said application be hard and get determined in the interest of fairness and justice b. That costs be in the cause. 2. The application is supported by the sworn afidavit of the applicant also dated 17th February 2026, and is premised on the following grounds: that the applicant intends to act in person as his counsel has failed him by failing to prosecute the application dated 31st October 2024 after the court issued directions on the filing of submissions, within a specific duration; that the counsel failed to file such submissions resulting in the application being dismissed for want of prosecution on 4th February 2026; that the applicant had detected that there are no submissions filed, and he rushed to file submissions, but he was late in doing so in that the matter was coming up for delivery of ruling only two days after the filing of his submissions. 3. The respondents opposed the application vide their grounds of opposition dated 16th March 2026 which stated as follows: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3801/eng@2026-06-17 1
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a. The application dated 17th February 2026 is an abuse of the court process; b. That the application has failed to satisfy the legal threshold; c. That the interest of justice will be served if the application deleted 17th February 2026 is dismissed with costs. 4. Both parties filed their submissions which I have considered during the preparation of this ruling. 5. The applicant’s plea is that his advocate failed him in his time of need and did not file submissions as required by the order of the court of their application dated 31st October 2024. It is the case that on 4th November 2025 this court set the matter down for ruling on 4th February 2026, about three months down the line, after ordering that the parties do file their respective submissions, commencing with the advocate for the appellant. On 4th February 2026 the court found that no submissions have been filed by the parties and dismissed the application for want of prosecution, prompting the appellant to file the present application. 6. The applicant has indicated that the mishap in not filing submissions was occasioned by default on the part of his erstwhile advocate. He states that he is now ready to handle the matter personally. 7. Instances abound here this court has in the past, for good reason given, absolved litigants from bearing the consequences of the negligence on the part of their counsel, and I find that in the present case the applicant ought to be similarly relieved from such burden in order for him to be heard on the merits on his application, which was dismissed for want to prosecution. 8. Consequently, I allow the application dated 17th February 2026, and I order that the motion dated that 31st October 2024 shall be heard on the merits. 9. All parties shall ensure that their submissions on that application are filed within 14 days from the date of this ruling. Ruling on the application dated 31st October 2024 shall be delivered on 30th September 2026. DATED, SIGNED AND DELIVERED AT MALINDI ON THIS 17TH JUNE 2026. MWANGI NJOROGE JUDGE, ELC MALINDI. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3801/eng@2026-06-17 2
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