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ELCDismissedNot stated in judgment· [2025] KEELC 8487 (KLR)

Buchere & another v Kogo & 5 others (Environment and Land Case E012 of 2024) [2025] KEELC 8487 (KLR)

Environment and Land Court
3 December 2025
4,722 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to reinstate a dismissed land suit because the plaintiff's illness excuse lacked evidence and key documents weren't properly authenticated.

What this practically means

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Executive summary

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The plaintiffs applied by notice dated 1/10/2025 to set aside orders made on 25/9/2025 dismissing their suit for non-attendance and to reinstate it for hearing on merits, under Order 12 Rule 7 of the Civil Procedure Rules. The 1st plaintiff, Philip Brightone Buchere, explained that he was battling colorectal cancer and was attending a Zoom meeting with a German doctor on the hearing date, a health condition he had not disclosed to his advocate for privacy reasons. The 2nd, 5th and 6th defendants opposed, arguing the illness was an afterthought, undisclosed to counsel and the court on the material day, and that the annexures failed to comply with Section 106B of the Evidence Act. They showed the plaintiffs had five months' notice, counsel twice sought adjournments without mentioning sickness, the plaintiffs' phones were unreachable, and the 2nd plaintiff was entirely absent and disinterested. Justice C.K. Nzili considered the guiding principles: the applicant's conduct, abuse of process, prejudice to the opposite parties, and the interest of justice. He found the sickness claim unsubstantiated by medical records, the timing of the alleged Zoom meeting doubtful, the annexures inadmissible and unauthenticated, and the 1st plaintiff's candour compromised. Balancing the defendants' demonstrated prejudice - travel from Nairobi, legal costs and delay - against the plaintiffs' failure to offer any adequate remedy by costs, the court held sufficient cause had not been shown. The application dated 1/10/2025 was dismissed with costs on 3rd December 2025 at Kitale.

Key legal issues

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01

Sufficient cause for non-attendance

Holding

The applicants failed to show sufficient cause; the illness claim was an afterthought, unsubstantiated by medical records, and was not disclosed to counsel or the court on the hearing day.

Reasoning

The court noted the 1st plaintiff did not deny knowledge of the hearing date, did not deny telling counsel only of 'unavoidable circumstances', his phone was unreachable, and counsel never swore an affidavit corroborating the sickness claim. No medical records showed diagnosis date or treatment history, so the documents could have been tailor-made for the application.

p. 7
02

Admissibility of electronic annexures

Holding

Annexures PBB-(1) and (2) were inadmissible for non-compliance with Section 106B of the Evidence Act, and no plausible explanation of their authenticity was offered.

Reasoning

The defendants challenged the WhatsApp screenshot, therapy proposal and invitation letter for non-compliance with Section 106B and lack of authentication. The court found the annexures failed to link the alleged Zoom meeting to the hearing date and the applicant did not rebut the authenticity concerns by supplementary affidavit.

p. 7
03

Balancing prejudice and the right to be heard

Holding

Although the right to be heard is fundamental, the plaintiffs failed to seize the opportunity afforded them; the defendants' prejudice (travel costs, delay) was not offset by any offer of costs as an adequate remedy.

Reasoning

The court accepted that defendants are also entitled to expeditious disposal under Articles 48, 50 and 159. Having explained prejudice from impediment to fair trial, aggravated legal and travel costs and delay by disinterested plaintiffs, the plaintiffs offered nothing by way of costs as adequate remedy, tipping the discretion against reinstatement.

p. 7
04

Status of the 2nd plaintiff

Holding

The 2nd plaintiff did not oppose the dismissal and the 1st plaintiff does not speak for him on reinstatement.

Reasoning

The court observed that the 2nd plaintiff neither authorised the 1st plaintiff, filed a witness statement nor attended the hearing, and his absence and lack of interest were unexplained, undermining the joint application to reinstate.

p. 6

Legal principles established

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  • In exercising the discretion to set aside a dismissal for non-attendance, the court considers the conduct of the applicant, abuse of court process, prejudice to the opposite parties and the interest of justice.
  • Electronic evidence annexures must comply with Section 106B of the Evidence Act to be admissible.
  • An applicant seeking reinstatement must lay bare evidence establishing that non-attendance was genuine and in good faith, and withholding vital information militates against the exercise of discretion in his favour.

Court orders

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  1. 1.The application dated 1/10/2025 is dismissed
  2. 2.Costs of the application to the defendants/respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 12 Rule 7
  • Evidence ActSection 106B
  • Civil Procedure ActSection 3A
  • Constitution of KenyaArticles 48, 50 and 159

Cases cited (17)

  • Shah -vs- Mbogo & Another
    [1957] EA 116
  • Utalii Transport Co. Ltd -vs- NIC Bank Ltd & Another
    [2014] eKLR
  • Pithon Waweru Maina -vs- Thuka Mugiria
    [1983] KECA 117
  • Wafula -vs- Wepukhulu & 5 Others
    Civil Suit No. 55 of 2010 [2025] KEELC 1421 [KLR]
  • Mwangi S. Kamenyi -vs- Attorney General & Another
    Misc. Civil Suit No. 720 of 2009
  • Tana and Athi Rivers Development Authority -vs- Jeremiah Kimigho Mwakio & 3 others
    [2015] KECA 674 (KLR)
  • Ivita -vs- Kyumbu
    [1984] KLR 441
  • Philip Chemolo & Another -vs- Augustine Kubende
    [1982-88] KAR 1046
  • Patel -vs- EA Cargo Handling Services Ltd
    [1974] EA 75
  • Mwilavia -vs- Mangachiu & Others
    ELC E001 of 2023 [2024] 44145 [KLR]
  • Peter Mumo Masave -vs- Mutua Kioko & Another
    [2019] eKLR
  • James Wafula Simiyu -vs- Fidelity Commercial Bank Ltd
    [2014] eKLR
  • Stephen Boro Gitiha -vs- Family Finance Building Society & Others
    [2009] eKLR
  • Wachira Karani -vs- Bildad Wachira
    [2015] KEHC 850 [KLR]
  • Registered Trustees of the Archdiocese of Dar es Salaam -vs- Chairman of Bunju Village Government & others
    Civil Appeal No. 47 of 2006
  • James Kanyiita Nderitu & another -vs- Marios Philotas Ghikas & another
    [2016] eKLR
  • John Florence Maritime Services Limited & another -vs- Cabinet Secretary for Transport and Infrastructure & 3 Others
    Petition No. 172 of 2015
Jurisdiction invoked
Order 12 Rule 7 of the Civil Procedure Rules; Section 3A of the Civil Procedure Act (inherent powers); Articles 48, 50 and 159 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, "Buchere & another v Kogo & 5 others (Environment and Land Case E012 of 2024) [2025] KEELC 8487 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8487/eng@2025-12-03

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