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ELCDismissedNot stated in the judgment text· [2025] KEELC 6670 (KLR)

Omusundi v Ethics and Anti-Corruption Commission & 2 others (Environment and Land Petition E002 of 2023) [2025] KEELC 6670 (KLR)

Environment and Land Court
1 January 2025
1,155 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court refused to reinstate an application dismissed for non-attendance, ruling that discovering the dismissal months later while scrolling the cause list is not a valid excuse.

What this practically means

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Executive summary

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Susan Kiprono, the 2nd interested party in the main matter, applied by notice of motion dated 9th May 2025 for orders that the court review, set aside and/or vary the orders of 11th November 2024 dismissing her application dated 15th October 2024 (seeking stay of execution of the judgment of 27th September 2024) and the order of 27th January 2025 dismissing her application dated 26th November 2024, and that the dismissed application be reinstated and heard on priority basis, with a stay of an application dated 10th April 2025 in which the 3rd interested party seeks contempt orders. She attributed her non-attendance to her advocate's online connection dropping and stated she only stumbled upon the matter in the cause list on 8th May 2025. John Mwangi Karanja opposed, contending the application was an attempt to evade contempt proceedings and to relitigate determined issues. The court, applying Shah v Mbogo and Utalii Transport, held it has discretion to reinstate applications dismissed for non-attendance but the applicant must give sufficient and plausible reasons. The applicant failed to explain satisfactorily her counsel's non-attendance on 27th January 2025, and her three-month delay after that order was unexplained - stumbling upon the matter in the cause list was not a sufficient reason. Having approached the court under certificate of urgency, she should have prosecuted her application diligently, and she was enjoying status quo orders yet reluctant to proceed. The application was dismissed with costs.

Key legal issues

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01

Whether the applicant gave sufficient and plausible reasons for the dismissals of 11th November 2024 and 27th January 2025

Holding

The applicant failed to explain satisfactorily her advocate's non-attendance and her three-month delay in moving the court after the order of 27th January 2025; stumbling upon the matter in the cause list is not a sufficient reason

Reasoning

The court exercised its discretion to reinstate dismissals for non-attendance sparingly. The party seeking the court's favour must adduce sufficient and plausible reasons. Here counsel was in court when the date was taken, the applicant was enjoying status quo orders yet was reluctant to proceed, and the delay from 27th January 2025 to 9th May 2025 was unexplained, so no basis for reinstatement existed.

p. 3
02

Scope of the court's discretion to reinstate or set aside its own orders

Holding

The discretion is unfettered but must be exercised judiciously to avoid injustice and not to reward deliberate obstruction or delay

Reasoning

Relying on Shah v Mbogo, the court held the discretion exists to relieve against inadvertence or excusable mistake, not to assist a party who deliberately evades or delays the course of justice. The applicant, having approached the court under certificate of urgency, ought to have been keen to prosecute her application.

p. 3

Legal principles established

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  • The discretion to reinstate an application dismissed for non-attendance is intended to avoid injustice from inadvertence or excusable mistake, not to assist deliberate evasion or delay
  • It is the primary duty of the party who set a case in motion to take steps to progress it
  • Although summary dismissal is draconian, courts should not shy away from it where the occasion calls for it

Court orders

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  1. 1.The application dated 9th May 2025 is dismissed with costs

Authorities

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Cases cited (3)

  • Shah -vs- Mbogo & Another
    (1967) EA 1116
  • Utalii Transport Co. Ltd and 3 Others -vs- N.I.C. Bank and Another
    (2014) e KLR
  • Kenya Power & Lightning Co. Ltd -vs- Alliance Media Kenya Ltd
    (2014) e KLR
Jurisdiction invoked
Inherent power of the court to review, set aside or vary its own orders; not expressly stated in the judgment text

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, "Omusundi v Ethics and Anti-Corruption Commission & 2 others (Environment and Land Petition E002 of 2023) [2025] KEELC 6670 (KLR)", Case Analysis (2025). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6670/eng@2025-10-02

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