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ELCDismissedNotice of Motion dated 8th October 2024 (case number not stated in judgment)· [2025] KEELC 3788 (KLR)

Islam v Theuri & 2 others (Environment & Land Case 154 of 2018) [2025] KEELC 3788 (KLR)

Environment and Land Court
8 May 2025
1,458 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This was a ruling on the Plaintiff's Notice of Motion dated 8th October 2024 seeking to set aside orders of 21st May 2024 dismissing his suit for non-attendance and to reinstate it for hearing on the merits. The Applicant, Mohammed Awadh, grounded the application on Article 159 of the Constitution and Sections 1A, 1B and 3A of the Civil Procedure Act, contending that his absence on the dismissal date resulted from illness as he was recuperating from surgery at Coast General Hospital, that he has an arguable case, and that the Respondents can be compensated by costs. The 1st Respondent, Mercy Koki Nduhiu, opposed, citing the Applicant's lack of seriousness and the expenses his inaction had caused her. E. K. Makori J framed two issues: whether the dismissal orders should be annulled, and costs. The court reviewed the procedural history since the suit's filing in July 2018, noting repeated failures by the Applicant and his advocates to attend compliance mentions and hearings, a notice to show cause issued in 2022, a final adjournment granted in May 2023 with a dismissal warning, and continued absences culminating in the dismissal of 21st May 2024. Applying the principles in Shah v Mbogo, CMC Holdings v Nzioki and Philip Chemwolo v Augustine Kubende, the court held that although discretion exists to relieve litigants of excusable mistakes, the Applicant's history of disinterest disentitled him to that discretion. The application was dismissed with costs to the participating respondents.

Key legal issues

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01

Whether a suit dismissed for non-attendance should be reinstated

Holding

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

Reasoning

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.

p. 3
02

Costs of the reinstatement application

Holding

Costs were awarded to the participating respondents

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The Application for reinstatement of the suit dated 8th October 2024 is denied
  2. 2.Costs awarded to the participating respondents

Authorities

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Legislation

  • Constitution of KenyaArticle 159
  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 11

Cases cited (4)

  • Martin L Barasa v Giza Systems Smart Solutions Ltd
    [2022] KEELRC 181 (KLR)
  • Shah vs Mbogo
    [1967] EA 116
  • CMC Holdings Limited vs Nzioki
    [2004] 1 KLR 173
  • Philip Chemowolo & Another vs Augustine Kubende
    [1982-88] 1 KAR 103
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.