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ELCDismissedEnvironment and Land Case E014 of 2023· [2025] KEELC 8270 (KLR)

Oguku v Gumo (Environment and Land Case E014 of 2023) [2025] KEELC 8270 (KLR)

Environment and Land Court
26 November 2025
CNC.K. Nzili
622 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~2 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to reinstate a dismissed land case application because the applicant's lawyer missed a hearing without explanation and filed paperwork without proper authority.

What this practically means

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Executive summary

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By a notice of motion dated 2/10/2025 supported by an affidavit of Dennis Kisaka sworn 12/10/2025, the applicant asked the Environment and Land Court at Kitale to deem the application as properly filed, the earlier filing having omitted the consent dated 8/8/2025 from the former advocates on record. The application was anchored on Order 9 Rule 9 of the Civil Procedure Rules, Section 3A of the Civil Procedure Act and Article 159(2)(d) of the Constitution, with reliance on Shah v Mbogo, the Leiyagu case and Sagoo v Mesa on the discretionary reinstatement of applications and absence of inordinate delay. The background was that on 23/9/2025 the court had dismissed an application dated 11/8/2025 for non-service and non-attendance. The respondent opposed through a replying affidavit of Richard Oguku sworn 9/10/2025. The court held that setting aside a dismissal is discretionary, exercisable to avert injustice from inadvertence or excusable mistake but not deliberate obstruction. It found the applicant had not explained the non-service or non-attendance, and that the earlier application had been lodged by a law firm without locus standi, with no evidence that the consent and notice of change of advocates were filed and paid for. Leave to come on record was granted, but the court held that such leave cannot operate retrospectively to cure non-compliance. The application was disallowed save for the prayer for leave.

Key legal issues

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01

Whether the dismissal of 23/9/2025 should be set aside and the earlier application reinstated

Holding

Reinstatement refused because the applicant failed to explain the non-service and non-attendance and filed through a firm without locus standi

Reasoning

The court held that setting aside dismissal is discretionary (Shah v Mbogo; Leiyagu) to avert injustice from inadvertence or excusable mistake, but not deliberate obstruction. The applicant did not address why he failed to serve or attend, and no consent or notice of change of advocates was shown as filed and paid for.

p. 2
02

Whether leave granted under Order 9 Rule 9 can cure prior procedural non-compliance

Holding

No - leave granted cannot apply retrospectively

Reasoning

The court agreed with the respondents that a lawyer filing post-judgment must follow the law and cannot invoke the oxygen principle to excuse non-compliance; leave operates prospectively only.

p. 2

Legal principles established

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  • Setting aside a dismissal is a discretionary power exercised to avoid injustice from inadvertence or mistake, but not where the applicant acted deliberately to obstruct justice
  • Leave to come on record post-judgment cannot operate retrospectively to cure prior non-compliance

Court orders

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  1. 1.Leave (to come on record) granted
  2. 2.Prayer to deem the application dated 2/10/2025 as properly filed disallowed
  3. 3.Application dated 2/10/2025 disallowed as lacking merit save for the prayer of leave

Authorities

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Legislation

  • Civil Procedure RulesOrder 9 Rule 9
  • Civil Procedure ActSection 3A
  • Constitution of Kenya, 2010Article 159(2)(d)

Cases cited (3)

  • Shah -vs- Mbogo & Another
    [1967] EA 116
  • Richard Nchapi Leiyagu -vs- Independent Electoral And Boundaries Commission & 2 others
    [2013] eKLR
  • Sagoo & Another -vs- Mesa Civil Case No. 71 of 2015
    [2013] KEELC 21475 [KLR] (9th November 2023) (Ruling)
Jurisdiction invoked
Order 9 Rule 9 of the Civil Procedure Rules as read together with Section 3A of the Civil Procedure Act and Article 159(2)(d) of the Constitution

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, "Oguku v Gumo (Environment and Land Case E014 of 2023) [2025] KEELC 8270 (KLR)", Case Analysis (2025). Environment and Land Case E014 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8270/eng@2025-11-26

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