Choge v Choge (Environment and Land Miscellaneous Application E011 of 2023) [2025] KEELC 1099 (KLR)
The bottom line
#A Kericho court reversed its own dismissal of a land dispute application, ruling that parties deserve a fair hearing even after delays.
What this practically means
#Executive summary
#Key legal issues
#Whether sufficient cause existed to set aside the dismissal for want of prosecution and reinstate the application
Yes. The court found the applicant had shown sufficient cause, noting that counsel had in fact elected not to file submissions and that the change of ruling date was not communicated to the applicant, who was also unwell
The court reviewed the record and found counsel for the applicant had on 26th October 2023 told the court he would not file submissions, contradicting the dismissal basis. The court treated this as partly its own oversight, invoking sections 1A, 1B and 3A of the Civil Procedure Act and Article 159 to cure it. It further found the applicant plausibly unaware of the ruling date change and had medical evidence of illness, satisfying the sufficient cause threshold from Wachira Karani and Shah v Mbogo.
Whether the applicant needed to demonstrate substantial loss
No. Proof of substantial loss is material in stay applications, not in an application to set aside a dismissal order and reinstate a matter
The respondent argued the applicant had not demonstrated substantial loss with particulars. The court held that the application before it only sought setting aside of the 25th January 2024 orders and reinstatement of the application of 14th December 2022, which sought extension of time to appeal. The question of proof of loss is material only in applications for stay pending appeal, so the submission was misplaced.
Whether the delay of five months in filing the application was explained
Yes, plausibly. The applicant was not informed of the change of ruling date and was unwell
The ruling was delivered on 25th January 2024 instead of the earlier scheduled 21st December 2023, and this change was not communicated to the parties. The applicant attached medical documents showing he was unwell. The court therefore found it plausible that the applicant was unaware the ruling had been delivered, explaining the five-month delay before filing the reinstatement application.
Legal principles established
#- Where a court's own record shows a party elected not to file submissions rather than failed to prosecute, and the lapse is attributable partly to the court, substantive justice under the overriding objective favours setting aside the dismissal order
- An applicant for reinstatement of a dismissed suit or application appeals to the court's discretion, to be exercised to avoid injustice
Court orders
#- 1.The orders of the Court issued on 25th January 2024 are set aside
- 2.The application dated 14th December, 2023 is reinstated for hearing
- 3.The Applicant shall forthwith set down the application dated 14th December, 2023 for hearing
- 4.Each party shall bear own costs of the application
- Jurisdiction invoked
- Order 12 rule 7 & Order 51 Rules 1 and 4 of the Civil Procedure Rules; Sections 1A, 1B, 3A & 63(e) of the Civil Procedure Act; Article 159 of the Constitution of Kenya 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Choge v Choge (Environment and Land Miscellaneous Application E011 of 2023) [2025] KEELC 1099 (KLR)", Case Analysis (2025). Kericho CM ELC Case No. 13 of 2018 (Miscellaneous Application dated 11th January, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1099/eng@2025-03-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.