Osuri v Atito & another (Environment and Land Case 546 of 2017) [2025] KEELC 5483 (KLR)
The bottom line
#A Kenyan court reinstated a case dismissed after a lawyer accidentally dropped from a virtual hearing, ruling that honest mistakes shouldn't cost clients their day in court.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the court should reinstate the application dated 5th December 2024, and if so, on what terms
- 2.Who should bear the costs of the application
Key legal issues
#Whether the dismissal for non-attendance should be set aside
Yes - the court found counsel had attempted to attend virtually and was logged in at some point, so cause was shown
The court examined the record including the Case Tracking System and found counsel was logged in on the material date but lost access when the matter was called. The matter was called out fifty minutes into the session and counsel had temporarily left the chat. The court held this was an unintentional mistake of counsel, not deliberate, and it was in the interest of justice to allow the applicant an opportunity to be heard.
The legal basis for setting aside an ex parte dismissal
Order 51 Rule 15 read with Order 12 Rule 3 and Order 12 Rule 7 of the Civil Procedure Rules permit setting aside, on just terms
The court held that the Civil Procedure Rules Committee foresaw the setting aside of ex parte orders. Order 51 Rule 15 permits setting aside ex parte orders; Order 12 Rule 7 permits setting aside or varying a judgment or dismissal entered in a party's absence upon such terms as may be just, subject to cogent reasons being shown.
Legal principles established
#- An order or judgment entered ex parte may be set aside, but cogent reasons satisfactory to the court must be shown
- A mistake of counsel that is not deliberate or intended to vex the court or evade justice should not be visited on the client
- Not all mistakes of counsel are excusable; deliberate mistakes or those aimed at evading justice or vexing the court ought not to be excused
Court orders
#- 1.The orders issued on 24th March 2025 dismissing the application dated 5th December 2024 for non-attendance are set aside and the application is reinstated for hearing on condition that the applicant complies with all pending directions of the court
- 2.The application to be fixed for hearing with the Applicant to submit by end of August 2025 and the Respondents by end of September 2025
- 3.Each party shall bear its own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 12 Rule 7 and Order 51 Rule 15 of the Civil Procedure Rules, 2010
Relief refused
#Costs of the application in the cause
The court instead ordered each party to bear its own costs
Costs
Each party shall bear its own costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It is my considered view that there was an attempt by the said law firm to attend to the matter as required. Cause has been shown for setting aside the orders of dismissal.
the alleged act is a mistake of counsel which should not be visited on the client
The orders issued on 24th March 2025 dismissing the application dated 5th December 2024 for non-attendance are hereby set aside and the application is reinstated for hearing on condition that the applicant comply with all, if any, of the directions of the court that were pending, with regards to the application.
Each party shall bear its own costs.
Issues in the judgment
#Internal inconsistency in dates: the application is described in some places as dated 5th December 2024 and elsewhere as 5th December 2025
Internal inconsistency in dates: reinstated application referred to as dated 5th March 2024 and hearing fixed for 18th November 2022, dates inconsistent with the 2025 timeline
Bench listing appears in the cause title area as 'HON. DR. IUR NYAGAKA' with no formal coram; counsel name appears variously as 'Aziz M. Ngare', 'Asiz M. Ngare' and 'Mr. Asiz Advocate'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Osuri v Atito & another (Environment and Land Case 546 of 2017) [2025] KEELC 5483 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5483/eng@2025-07-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.