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ELCAllowed· [2025] KEELC 7813 (KLR)

Kimilgo (Suing as the administrator of the Estate of the Late Kimilgo Arap Kukuto) v Cherono (Sued as administratrix of the Estate of the Late Ezekiel Kibet Bor) (Environment and Land Case E019 of 2022) [2025] KEELC 7813 (KLR)

Environment and Land Court of Kenya
13 November 2025
LOL. A. Omollo
2,049 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kericho land court reinstated a dismissed application because the lawyer's medical absence was a valid reason, emphasizing that disputes should be decided on merit.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kericho, delivered by L. A. Omollo, J on 13th November 2025, determines a Notice of Motion by the Plaintiff/Applicant seeking reinstatement of his application dated 11th November 2024, which was dismissed on 11th December 2024 for non-attendance. The underlying suit is an adverse possession claim in which the Plaintiff seeks declarations that he is the lawful beneficiary of a 5-acre portion to be hived off from Kericho/Kapsuser/439, vesting orders, cancellation of the Defendants' resultant titles, and injunctive relief. Counsel for the Plaintiff, Clifi Koome, explained his non-attendance by way of a medical document from Rehema Medical Clinic dated 9th December 2024 advising a four-day sick-off, contending that reinstatement would cause the Defendant no prejudice and would serve the interest of justice. The Defendant opposed through Grounds of Opposition, asserting that the application was frivolous and vexatious, that the only pending issue was execution of a mediation agreement adopted as a court order on 19th March 2024, and that the application sought impermissibly to reopen the suit. The court framed a single issue: whether the dismissed application should be reinstated. Applying HAM v SOS, Dennis Odhiambo v Elius Njoka, and Wachira Karani v Bildad Wachira, and guided by Section 1A(1) of the Civil Procedure Act and Article 159 of the Constitution, the court found the explanation for non-attendance reasonable and no prejudice demonstrated, and allowed the application, reinstating the 11th November 2024 application for hearing, directing the Plaintiff to set it down forthwith, with each party bearing their own costs.

Key legal issues

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Whether the application dated 11th November, 2024, dismissed for non-attendance on 11th December, 2024, should be reinstated

Holding

The application was reinstated. Counsel's medical documentation showing a four-day sick-off covering the dismissal date constituted a reasonable explanation for non-attendance, and the Defendant/Respondent failed to demonstrate any prejudice.

Reasoning

The court applied the discretionary principles from HAM v SOS and Dennis Odhiambo v Elius Njoka, guided by the overriding objective in Section 1A(1) of the Civil Procedure Act and Article 159 of the Constitution. Counsel's medical note from Rehema Medical Clinic dated 9th December 2024 justified absence on the dismissal date. The respondent's grounds of opposition largely addressed the merits of the underlying application rather than prejudice from reinstatement, which could only be resisted once the application was revived.

p. 5

Legal principles established

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  • In an application for reinstatement of a dismissed suit or application, the applicant appeals to the discretion of the Court, which must not be exercised in a manner that results in injustice.
  • Applications for reinstatement are governed by judicial discretion informed by the overriding objective in Section 1A(1) of the Civil Procedure Act and Article 159 of the Constitution.
  • A reasonable explanation for non-attendance and absence of prejudice to the other party justify reinstatement so that parties are heard on the merits.

Court orders

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  1. 1.The application dated 11th November, 2024 is hereby reinstated for hearing
  2. 2.The Plaintifi/Applicant shall forthwith set down the application dated 11th November, 2024 for hearing
  3. 3.Each party shall bear own costs of the application

Authorities

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Legislation

  • Civil Procedure ActSection 1A(1)
  • Constitution of Kenya, 2010Article 159
  • Constitution of Kenya, 2010Article 50

Cases cited (4)

  • HAM vs SOS
    [2021] eKLR
  • Dennis Odhiambo v Elius Njoka & another
    [2021] eKLR
  • Wachira Karani -vs- Bildad Wachira
    Civil Suit No. 101 of 2011 (2016) eKLR
  • Robert Kimani Ndungú v Kenya Deposit Insurane (sic) Corporation (Being sued in its capacity as the receiver manager of Chase Bank Limited (In Receivership)
    [2022] eKLR
Jurisdiction invoked
Original civil jurisdiction; ruling on a Notice of Motion within a pending suit (adverse possession claim over Kericho/Kapsuser/439)

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, "Kimilgo (Suing as the administrator of the Estate of the Late Kimilgo Arap Kukuto) v Cherono (Sued as administratrix of the Estate of the Late Ezekiel Kibet Bor) (Environment and Land Case E019 of 2022) [2025] KEELC 7813 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7813/eng@2025-11-13

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