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ELCPartially AllowedNot stated in the judgment· [2025] KEELC 6732 (KLR)

Ndegwa v Mwangi (Environment and Land Case E15 of 2023) [2025] KEELC 6732 (KLR)

Environment and Land Court
7 October 2025
1,294 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court reinstated a dismissed case because a lawyer's failed virtual court connection was a reasonable excuse, not neglect.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nakuru (M. A. Odeny, J) determined the Plaintiff/Applicant's Notice of Motion dated 27th March 2025, which sought to set aside the dismissal of the applicant's Notice of Motion dated 14th February 2025, dismissed on 13th February 2025 for want of attendance by Hon. Justice Antony O. Ombwayo. Counsel for the applicant deponed that he was ready to prosecute the application but suffered technical connection challenges with the virtual platform, and that his non-attendance was neither deliberate nor negligent. The Defendant/Respondent opposed, contending that the application was an abuse of process, that no reasonable explanation for non-attendance was given, and that the law firm's proximity to the court undermined the connection-difficulty claim. The court framed two issues: whether there was a basis to exercise its discretion to set aside the dismissal order and reinstate the application, and whether the applicant tendered a reasonable explanation for non-attendance. Relying on Section 3A of the Civil Procedure Act, Order 12 Rule 7, and authorities including Belinda Murai v Amoi Wainaina, South Empire Traders v Nakuru Players Theatre Club and Richard Nchapai Leiyangu v IEBC, the court held that it has unlimited discretion to set aside interlocutory orders to avoid injustice, that reinstatement is not automatic, and that the applicant's explanation was reasonable. The application was allowed as prayed, with the applicant directed to fix the application for hearing within 30 days failing which the order lapses, and costs in the cause.

Key legal issues

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01

Discretion to set aside an order of dismissal for non-attendance

Holding

The court exercised its discretion in favour of the applicant, giving the benefit of doubt where counsel explained technical difficulties with the virtual platform

Reasoning

The court held it has unlimited discretion to set aside interlocutory orders to avoid injustice from inexcusable errors, guided by natural justice so that a litigant is not driven away without a hearing. Counsel's explanation that he was ready to prosecute the application but suffered technical connection challenges on the virtual platform was accepted as a reasonable explanation, the more so where the matter was mentioned before a different court while the trial judge was on leave.

p. 3
02

Reasonable explanation for non-attendance

Holding

Reinstatement is not automatic; the applicant must give cogent reasons, which the court found were tendered here

Reasoning

Relying on South Empire Traders v Nakuru Players Theatre Club and Richard Nchapai Leiyangu v IEBC, the court noted that reinstatement is not a matter of course and cogent reasons must be given for non-attendance. The applicant's counsel deponed that his failure to attend was not deliberate or due to neglect but resulted from technical connection challenges. The court accepted this explanation as reasonable and exercised its discretion accordingly.

p. 1

Legal principles established

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  • The court has unlimited discretionary power to set aside interlocutory orders to avoid injustice and hardship caused by inexcusable errors, and a litigant should not be driven from the seat of justice without a hearing
  • Reinstatement of an application dismissed for non-attendance is not automatic; the applicant must tender a reasonable explanation for non-attendance

Court orders

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  1. 1.The application dated 27th March 2025 is allowed as prayed
  2. 2.The order dismissing the applicant's Notice of Motion dated 14th February 2025 for want of attendance is set aside and the application reinstated
  3. 3.Applicant to fix the Application for hearing within 30 days, failure to which the order lapses
  4. 4.Costs to be in the cause
Jurisdiction invoked
Inherent jurisdiction under Section 3A of the Civil Procedure Act and Order 12 Rule 7 of the Civil Procedure Rules, 2010

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, "Ndegwa v Mwangi (Environment and Land Case E15 of 2023) [2025] KEELC 6732 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6732/eng@2025-10-07

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