Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedNot stated in the judgment (suit previously fixed for hearing on 13/11/2024; prior related suits ELC No. 78 of 2021 and ELC Petition No. 24 of 2021)· [2025] KEELC 891 (KLR)

Hussein & 5 others v Abdalla & another (Environment & Land Case E007 of 2024) [2025] KEELC 891 (KLR)

Environment and Land Court
27 February 2025
MNMwangi Njoroge
902 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

A Kenyan court reinstated a land suit dismissed after technical problems on a virtual hearing, confirming dismissed cases can be revived for genuine reasons.

What this practically means

#

Executive summary

#
This is a ruling of the Environment and Land Court at Malindi (Mwangi Njoroge J) on a Notice of Motion dated 13/11/2024 by the Plaintiffs, seeking review, setting aside and/or variation of the order of 13/11/2024 dismissing their suit for non-attendance, reinstatement of the suit, and costs. The application was brought under sections 1A, 1B and 3A of the Civil Procedure Act and Orders 12 Rule 7 and 51 of the Civil Procedure Rules, 2010. Counsel Bilhah S. Wangu explained that on the hearing date she and the Plaintiffs' witness were logged onto the virtual court platform but could not be heard due to technical issues; by the time the connection was fixed, the court had already dismissed the suit. The 1st Defendant opposed in a replying affidavit sworn 27/1/2025, contending the Plaintiffs were not keen on prosecuting the suit, citing their previously dismissed suits ELC No. 78 of 2021 and ELC Petition No. 24 of 2021. The sole issue was whether the orders of 13/11/2024 should be reviewed or set aside. Relying on Order 12 Rule 7, and the discretion principles in Shah v Mbogo, Patel v EA Cargo Handling Services and Simon Thuo Mwangi v Unga Feeds, the court held the application merited. The application was allowed entirely, the suit effectively reinstated, with costs in the cause; the Plaintiffs were directed to perfect compliance within 14 days, the defendants within a further 14 days, and the matter was listed for 27/3/2025 for fixing a hearing date.

Key legal issues

#
01

Whether the dismissal of the suit for non-attendance on 13/11/2024 should be set aside

Holding

The application is merited and the dismissal is set aside so the suit can be heard on merit

Reasoning

Both parties were absent on the hearing date. Plaintiffs' counsel explained he was logged onto the virtual platform but could not be heard due to technical issues, and by the time he rejoined on another gadget the dismissal orders had been issued. Order 12 Rule 7 empowers the court to set aside dismissal orders on such terms as may be just, and sections 1A, 1B and 3A of the Civil Procedure Act require just determination and permit orders necessary for the ends of justice, including allowing the matter to be heard on merit.

p. 3

Legal principles established

#
  • The court has discretion to set aside a judgment or order to avoid injustice or hardship resulting from an accident, inadvertence or excusable mistake
  • The reason to set aside a dismissal must be based on good grounds or reasons advanced, not on whim or caprice

Court orders

#
  1. 1.The application dated November 13, 2024 is allowed entirely; the order dismissing the Plaintiffs' suit on 13/11/2024 is set aside and the suit reinstated
  2. 2.Costs of the application shall be in the costs
  3. 3.Plaintiffs to perfect their compliance within 14 days from the date of the order
  4. 4.Defendants to follow suit within 14 days from the expiry of the period granted to the plaintiffs
  5. 5.Matter to be listed on 27/3/2025 for fixing of a hearing date
  6. 6.Upload of the ruling on the CTS to be construed as sufficient notice of the compliance order to all parties

Authorities

#

Legislation

  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 3A
  • Civil Procedure Rules, 2010Order 12
  • Civil Procedure Rules, 2010Order 12 Rule 7
  • Civil Procedure Rules, 2010Order 51

Cases cited (3)

  • Shah v Mbogo & Another
    [1967] EA 116
  • Patel v EA Cargo Handling Services Ltd
    [1974] EA 75
  • Simon Thuo Mwangi v Unga Feeds Limited
    [2015] eKLR
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Order 12 Rule 7 and Order 51 of the Civil Procedure Rules, 2010

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Hussein & 5 others v Abdalla & another (Environment & Land Case E007 of 2024) [2025] KEELC 891 (KLR)", Case Analysis (2025). Not stated in the judgment (suit previously fixed for hearing on 13/11/2024; prior related suits ELC No. 78 of 2021 and ELC Petition No. 24 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/891/eng@2025-02-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.