Ndisii v Musembi & another (Environment and Land Case 24 of 2019) [2025] KEELC 7392 (KLR)
The bottom line
#Kenya's Environment and Land Court reinstated a land suit dismissed for want of prosecution, prioritising the right to a fair hearing over procedural delay.
What this practically means
#Executive summary
#Key legal issues
#Whether the threshold for setting aside an order dismissing a suit for want of prosecution was met
The court reluctantly allowed the setting aside, noting the counterclaim was not dismissed and granting the parties an equal opportunity, despite the delay and doubts about the Applicant's explanation.
The court found no evidence that counsel for the Applicant was served with a hearing notice or that he logged into the virtual session as alleged, noting that had he done so, he would not have waited a year to seek reinstatement. The truth was that counsel learned of the dismissal too late. Notwithstanding the delay, because the counterclaim remained alive and undetermined, the court set aside the dismissal to give both parties an equal opportunity to be heard.
Whether the counterclaim was dismissed by the order of 29th May, 2024
The dismissal order did not specify whether the counterclaim was dismissed, and it therefore remains alive.
The order dismissing the suit for want of prosecution did not mention the counterclaim. Since neither counsel nor the parties attended when the dismissal was made, the order's silence on the counterclaim means the counterclaim survives and is still before the court.
Legal principles established
#- The discretion to set aside a dismissal is exercised to avoid injustice from accident, inadvertence or excusable mistake, not to assist deliberate obstruction or delay
Court orders
#- 1.The order of 29th May, 2024 dismissing the Applicant's suit for want of prosecution is set aside
- 2.Unconditional leave granted to the Applicant to file a reply to defence and defence to counterclaim within 7 days
- 3.Costs of the application shall be costs in the cause
- Jurisdiction invoked
- Inherent discretion to set aside dismissal orders for want of prosecution under civil procedure
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndisii v Musembi & another (Environment and Land Case 24 of 2019) [2025] KEELC 7392 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7392/eng@2025-10-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.