Islam v Theuri & 2 others (Environment & Land Case 154 of 2018) [2025] KEELC 3788 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether a suit dismissed for non-attendance should be reinstated
The application was refused because the Applicant had a prolonged history of non-attendance and disinterest, so his absence on 21st May 2024, though attributed to illness, did not merit the court's discretion
The court reviewed the procedural history from 2018: failure to serve, repeated non-attendance at compliance and hearing dates, a final adjournment granted with a warning, and continued absence. Applying the principles in Shah v Mbogo, CMC Holdings v Nzioki and Philip Chemwolo v Augustine Kubende, the court held that discretion favours excusable mistake, not a litigant lacking enthusiasm to prosecute the case.
Costs of the reinstatement application
Costs were awarded to the participating respondents
Having lost the application, the Applicant was to bear the participating respondents' costs, consistent with the principle that respondents can adequately be compensated by costs.
Legal principles established
#- The discretion to set aside dismissal orders is meant to avoid injustice or hardship from accident, inadvertence or excusable mistake, not to assist a party who deliberately obstructs or delays the course of justice
- Unless there is fraud or intention to overreach, no error or default cannot be put right by payment of costs; the court exists to decide rights, not to impose discipline
Court orders
#- 1.The Application for reinstatement of the suit dated 8th October 2024 is denied
- 2.Costs awarded to the participating respondents
- Jurisdiction invoked
- Article 159 of the Constitution and Sections 1A, 1B and 3A of the Civil Procedure Act (inherent jurisdiction to reinstate a dismissed suit)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Islam v Theuri & 2 others (Environment & Land Case 154 of 2018) [2025] KEELC 3788 (KLR)", Case Analysis (2025). Notice of Motion dated 8th October 2024 (case number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3788/eng@2025-05-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.