Buchere & another v Kogo & 5 others (Environment and Land Case E012 of 2024) [2025] KEELC 8487 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Sufficient cause for non-attendance
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.
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.
Admissibility of electronic annexures
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.
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.
Balancing prejudice and the right to be heard
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.
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.
Status of the 2nd plaintiff
The 2nd plaintiff did not oppose the dismissal and the 1st plaintiff does not speak for him on reinstatement.
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.
Legal principles established
#- 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
#- 1.The application dated 1/10/2025 is dismissed
- 2.Costs of the application to the defendants/respondents
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.