Mugo v Michael (Environment & Land Case 138 of 2018) [2025] KEELC 4239 (KLR)
The bottom line
#A Kenyan court reinstated a land case dismissed after the lawyer left the firm without handover, confirming mistakes by counsel shouldn't cost litigants their day in court.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant established a reasonable excuse for non-attendance warranting reinstatement under Order 12 Rule 7
The applicant established a reasonable excuse - counsel handling the matter left the firm without a proper handover, causing a communication breakdown; the non-attendance was not deliberate and the unopposed respondent would suffer no prejudice.
The court noted that though the application was unopposed, it had to satisfy itself that a case for reinstatement was established under Order 12 Rule 7. Applying Shah v Mbogo and Belinda Murai v Amoi Wainaina, the discretion is meant to avoid injustice from accident, inadvertence or excusable mistake, and to deny a litigant a hearing should be the last resort. Counsel's departure from the firm without proper handover was an excusable mistake, not a deliberate attempt to obstruct justice, and any prejudice to the respondent can be cured by costs.
The primacy of the right to a hearing under Article 50 of the Constitution
The overriding objective of civil procedure is substantive justice, informed by the constitutional right to a hearing under Article 50, which the court is obligated to safeguard.
The court grounded its exercise of discretion in the constitutional framework: the overriding objective of the constitutional and statutory regime on civil procedure is to achieve substantive justice. Article 50 secures the right to a hearing, and the court is obliged to protect that right. Mistakes by counsel, absent fraud or deliberate obstruction, should be rectified rather than visited on the innocent litigant.
Legal principles established
#- The discretion to set aside an ex parte judgment or order exists to avoid injustice from accident, inadvertence or excusable mistake, not to assist deliberate obstruction of justice.
- An innocent litigant should not be shut out of justice because of counsel's negligence where the interests of justice so dictate.
Court orders
#- 1.Prayer 2 allowed as prayed - the order of 25th April 2022 dismissing the Applicant's Application dated 24th August 2021 for want of prosecution and/or non-attendance is set aside and the suit reinstated
- 2.Prayer 3 allowed on condition that the Applicant pays the requisite fees and the Application be set down for hearing on priority basis
- 3.Mention on 30/06/2025 for directions on the Notice of Motion Application dated 24/08/2021
- 4.Costs in the cause
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 63E of the Civil Procedure Act and Order 12 Rule 7 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mugo v Michael (Environment & Land Case 138 of 2018) [2025] KEELC 4239 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4239/eng@2025-06-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.