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ELCAllowedNot stated in the judgment· [2025] KEELC 4119 (KLR)

Republic v Deputy County Commissioner, Kilungu Sub-County & another; Joseph (Exparte Applicant); Musau (Interested Party) (Environment and Land Miscellaneous Application E006 of 2023) [2025] KEELC 4119 (KLR)

Environment and Land Court
30 May 2025
EOE. O. Obaga
1,635 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court reinstated a land case dismissed after the litigant missed an online hearing due to phone battery and internet problems, confirming courts forgive honest technical glitches.

What this practically means

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Executive summary

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The Plaintiff/Applicant, Stephen Kioko Joseph, moved the court by Notice of Motion dated 16th October, 2022 seeking variation, review or setting aside of the orders of 13th June, 2024 dismissing his matter, and reinstatement of his Notice of Motion dated 27th February, 2024, by which he sought leave to commence judicial review proceedings concerning what he described as his family's ancestral land. He explained that he was acting in person, could not be admitted to the online court session until around 2.00 pm, and that his phone's power was exhausted with no electricity in Kilungu due to bad weather; he learned of the dismissal only on visiting court on 10th July, 2024. The Interested Party opposed the application, contending he was never served with the dismissed application, that reinstatement would violate natural justice under Article 50(1), and that the claim duplicated Makueni ELC No. E022 of 2021 filed by the Applicant's father and brother, contrary to Section 6 of the Civil Procedure Act. The court framed two issues: whether the Applicant demonstrated merit in setting aside the dismissal order, and whether the dismissed application should be reinstated. Relying on Order 12 Rules 1 and 7 of the Civil Procedure Rules, the overriding objective in the Civil Procedure Act, and authorities including CMC Holdings Ltd v James Mumo Nzioki, Ivita v Kyumbu, Essanji & Another v Solanki and Shah v Mbogo, the court held that the Applicant's explanation of technical difficulties was a reasonable excuse for non-attendance. The application was allowed as prayed, the dismissal was set aside and the application dated 27th February, 2024 was reinstated, with costs in the cause.

Key legal issues

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Whether the court should set aside its order of dismissal for non-attendance and reinstate the dismissed application

Holding

The Applicant's explanation for non-attendance (technical difficulties accessing the online court platform, and his phone's power being exhausted) was reasonable; the application for reinstatement was therefore allowed in full

Reasoning

Order 12 Rule 7 of the Civil Procedure Rules gives the court discretion to set aside a dismissal upon such terms as may be just. Guided by the overriding objective in Sections 1A, 1B and 3A of the Civil Procedure Act, and authorities holding that the discretion exists to spare litigants injustice from excusable mistake, the court found the Applicant's technical difficulties excusable and his willingness to prosecute the matter genuine. The Interested Party's objections on service and parallel litigation did not persuade the court.

p. 4

Legal principles established

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  • The discretion to set aside an ex parte order or dismissal exists to prevent injustice to a litigant who demonstrates an excusable mistake, inadvertence, accident or error
  • The test for delay is whether it is prolonged and inexcusable, and whether justice can still be done despite the delay
  • The substance of disputes should ordinarily be decided on their merits; errors and lapses should not necessarily debar a litigant
  • The court's discretion to set aside is to avoid injustice from accident, inadvertence or excusable mistake, not to assist a person who deliberately obstructs or delays the course of justice

Court orders

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  1. 1.The orders issued on 13th June, 2024 dismissing the matter are set aside
  2. 2.The Notice of Motion application dated 27th February, 2024 is reinstated for hearing and determination on merit
  3. 3.Costs in the cause
Jurisdiction invoked
Article 159 of the Constitution; Sections 1A, 1B and 3A of the Civil Procedure Act; Order 12 Rule 7 and Order 51 Rule 1 of the Civil Procedure Rules

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, "Republic v Deputy County Commissioner, Kilungu Sub-County & another; Joseph (Exparte Applicant); Musau (Interested Party) (Environment and Land Miscellaneous Application E006 of 2023) [2025] KEELC 4119 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4119/eng@2025-05-30

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