Omollo & 2 others v Yusuf & 4 others (Enviromental and Land Originating Summons E006 of 2020) [2025] KEELC 7723 (KLR)
The bottom line
#A Kenyan court refused to revive a suit dismissed for inactivity, because the litigants waited too long and could not prove they were never notified.
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 application is merited
- 2.Who should bear the costs of the application
Key legal issues
#Whether sufficient cause was shown for setting aside dismissal of the suit for want of prosecution under Order 17 Rule 2(1) of the Civil Procedure Rules
No sufficient cause was shown; the application failed
The suit lay dormant for two years with no steps taken. The notice to show cause was issued and served. The applicants claimed their e-mail was inactive but offered no affidavit evidence of the technical failure, its timing, or how they learned of the dismissal. The six-month delay in bringing the application was inordinate and unexplained.
Whether service of the notice to show cause by e-mail was proved in accordance with Order 5 Rule 22B
The court would have accepted that e-mail service required proof of delivery receipt, but the applicants' own claim that they knew of the dismissal shifted and discharged the burden against them
The court acknowledged that mere sending of an e-mail without delivery receipt may not prove service. However, the applicants simultaneously asserted they were not served and that they knew of the dismissal, without explaining how. That inconsistency placed the burden of proving non-delivery on them, which they failed to discharge.
Legal principles established
#- A party who alleges that a notice was not served on them bears the burden of proving that allegation, on a balance of probabilities
- Litigants must act expeditiously and diligently; they cannot file suits and leave them dormant then claim innocence upon dismissal for want of prosecution
Court orders
#- 1.The notice of motion dated 19th December 2024 seeking reinstatement of the suit dismissed on 19th June 2024 is dismissed
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act and Order 51 Rules 1, 3 and 15 of the Civil Procedure Rules
Relief refused
#Setting aside the orders of 19th June 2024 dismissing the suit and reinstating the suit for hearing
No sufficient cause was shown; the applicants failed to prove non-delivery of the notice to show cause, took no steps for two years, and the six-month delay in filing the application was unexplained and inordinate
Costs
No order as to 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.
The upshot is that the application is dismissed with no order as to costs.
It is trite that he who alleges proves. That is stipulated under Section 107 of the Evidence Act, Laws of Kenya.
no suficient cause has been shown by the applicants to warrant the setting aside of the orders made on 19th June 2024
The delay is inordinate, besides failure to explain it.
Issues in the judgment
#Internal contradiction on the date of dismissal: the application seeks to set aside orders made on 19th June 2024, while the body of the judgment and the replying affidavit state the suit was dismissed on 9th June 2024
The judgment does not state the court, case number or the parties' full designations (the suit is referred to as an Originating Summons but the cause number is never given)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omollo & 2 others v Yusuf & 4 others (Enviromental and Land Originating Summons E006 of 2020) [2025] KEELC 7723 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7723/eng@2025-11-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.