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ELCPartially AllowedNot stated in the judgment· [2025] KEELC 6295 (KLR)

Board of Management (Governors) Workers High School v Warui & 3 others (Environment and Land Appeal E037 of 2022) [2025] KEELC 6295 (KLR)

Not stated on the face of the judgment (the coram shows a Judge; the matter is an appeal in which an interlocutory application was dismissed for non-attendance)
25 September 2025
AOA.O. Ombwayo
846 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan court reinstated a dismissed application, ruling that an advocate's honest mistake in missing court is grounds for review under Order 45 of the Civil Procedure Rules.

What this practically means

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Executive summary

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The Applicant, described as Appellant, moved the court by application dated 5th June 2024 seeking to vary or set aside orders of even date dismissing its Notice of Motion dated 2nd May 2024 for non-attendance, and to reinstate that Motion for hearing on merit. Supporting affidavit by Advocate Afiine Aoko explained that her non-attendance was an honest mistake: she was addressing another court before Hon. Juma and did not hear the matter called out; upon recall she discovered the dismissal, failed to reach opposing counsel to vacate the orders, and immediately filed the reinstatement application. She asserted the dismissed application had not been heard on merit and that no prejudice beyond costs would befall the Respondent. The Respondent filed no response. Counsel's submissions identified two issues: whether the application was merited (invoking Article 50 of the Constitution and authorities including Mokaya v Westland Property Limited and Habo Agencies Limited v Winfred Odhiambo Musingo), and costs. The court framed a single issue: whether the Applicant deserved the review orders. Relying on Order 45 Rule 1(1) of the Civil Procedure Rules, it restated the grounds for review, accepted that the dismissal flowed from an inadvertent mistake corroborated by the advocate's court attendance sheet, noted the application was filed timeously, and allowed the review. The application dated 2nd May 2024 was reinstated for hearing on merit, with each party bearing its own costs.

Key legal issues

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01

Whether the Applicant deserved review of the order dismissing its application for non-attendance

Holding

Yes. The dismissal rested on an inadvertent mistake by the advocate, who was before another court; the application for reinstatement was filed timeously and no prejudice was shown, so the discretion to review was exercised in the Applicant's favour.

Reasoning

The court identified Order 45 Rule 1(1) as the source of its review jurisdiction and restated the grounds: new and important matter not available with due diligence, mistake or error apparent on the face of the record, or any other sufficient reason, sought without unreasonable delay. The Applicant attributed non-attendance on 5th June 2024 to its advocate's inadvertence - she was addressing another court before Hon. Juma and missed the call-out - corroborated by an annexed court attendance sheet. The court found the application was filed timeously, that the underlying application was not heard on merit, and that no prejudice beyond costs would ensue. Exercising its discretion, it reinstated the application for hearing on merit.

p. 3

Legal principles established

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  • An application for review may be founded on discovery of new and important matter, mistake or error apparent on the face of the record, or any other sufficient reason, and must be made without unreasonable delay

Court orders

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  1. 1.The court's orders of 5th June 2024 dismissing the Appellant's application dated 2nd May 2024 for non-attendance are varied/set aside
  2. 2.The Notice of Motion application dated 2nd May 2024 is reinstated for hearing and determination on merit
  3. 3.Each party to bear its own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 45 Rule 1(1)
  • Constitution of KenyaArticle 50

Cases cited (2)

  • Mokaya V Westland Property Limited
    (Civil Appeal 211 of 2020) [2023] KEHC 23809 (KLR)
  • Habo Agencies Limited V Winfred Odhiambo Musingo
    (2020) eKLR
Jurisdiction invoked
Order 45 Rule 1(1) of the Civil Procedure Rules (review jurisdiction)

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, "Board of Management (Governors) Workers High School v Warui & 3 others (Environment and Land Appeal E037 of 2022) [2025] KEELC 6295 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6295/eng@2025-09-25

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