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ELCAllowedNot stated in judgment· [2025] KEELC 3923 (KLR)

Omweri v Tukero & another (Environment & Land Case 6 of 2023) [2025] KEELC 3923 (KLR)

High Court of Kenya (Kilgoris)
15 May 2025
MMM.N. Mwanyale
390 words in judgment
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The bottom line

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The High Court in Kilgoris reinstated a dismissed suit, ruling that a lawyer's bereavement absence should not punish a litigant who showed up ready for the hearing.

What this practically means

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Executive summary

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This ruling by Hon. M.N. Mwanyale, Judge, at Kilgoris determined an application dated 31.12.2024 seeking to set aside orders issued on 19.12.2024 dismissing the suit for want of prosecution. The Applicant explained that on the hearing date its counsel, Mr. Ombachi Advocate, was absent due to bereavement - the cortege of the late Amos Michieka left the Lenmek mortuary on 19.12.2024 - and that counsel had communicated the bereavement by letter dated 11.12.2024 and his brief was held by Mr. Migiro Advocate. The Applicant was present in court with three witnesses, and the parties were not called out. The 1st Respondent filed grounds of opposition but no replying affidavit, leaving the Applicant's depositions unchallenged. The court framed a single issue: whether the application was merited. Holding that the bereavement was proved and timely communicated, and invoking the principle that mistakes of advocates ought not to be visited on a litigant who was present in court, the court found a strong case for reviewing the dismissal. It set aside the orders of 19.12.2024, reinstated the suit for hearing, directed that pre-trial conference directions be issued on 4th June 2025, and ordered costs in the cause.

Key legal issues

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Whether the orders dismissing the suit for want of prosecution on 19.12.2024 ought to be set aside

Holding

The application was merited; the advocate's absence was excusably due to bereavement, duly communicated in advance, and the litigant was present in court, justifying reinstatement

Reasoning

The Applicant deponed on the reasons for non-attendance: counsel Mr. Ombachi was bereaved, had communicated the bereavement by letter dated 11.12.2024, and a funeral programme showed the cortege left the mortuary on the hearing date. The Respondent opposed only by grounds of opposition without a replying affidavit, so the depositions stood unchallenged. The court applied the principle that mistakes of advocates should not be visited on litigants who were present.

p. 2

Legal principles established

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  • Mistakes of advocates ought not to be visited on the litigant, particularly where the litigant was present in court ready to proceed

Court orders

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  1. 1.The orders issued on 19.12.2024 dismissing the suit are set aside and the suit is reinstated for hearing
  2. 2.Directions on the pre-trial conference to be issued on 4th June 2025
  3. 3.Costs in the cause
Jurisdiction invoked
Inherent/review jurisdiction to set aside its own orders dismissing the suit for want of prosecution

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, "Omweri v Tukero & another (Environment & Land Case 6 of 2023) [2025] KEELC 3923 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3923/eng@2025-05-15

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