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ELCAllowedNot stated in judgment· [2026] KEELC 190 (KLR)

Serem v Rotich (Environment and Land Case 347 of 2013) [2026] KEELC 190 (KLR)

Environment and Land Court (court not expressly named in judgment)
22 January 2026
CYC. K. Yano
1,457 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court reinstated a suit dismissed after a lawyer couldn't join a virtual hearing, showing courts will forgive prompt, explained mistakes.

What this practically means

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Executive summary

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The Plaintiff/Applicant moved the court by Notice of Motion dated 14th May 2025 seeking reinstatement of his suit, which was dismissed for want of prosecution/non-attendance on 12th May 2025 when it was scheduled for defence hearing. The applicant explained that his advocate on record could not access the virtual court session because two different links existed for the same court - one in the judicial e-cause list and another in the Bar Bench group. Using the e-cause list link, the advocate was not admitted; by the time the alternate link was used, the court had already called out the matter and dismissed it in the absence of both parties. The applicant contended the non-attendance was neither deliberate nor negligent, relied on Order 12 Rule 7 of the Civil Procedure Rules, 2010, and on the right to a fair hearing under Article 50 of the Constitution. The application was unopposed: the respondent was served but filed no response and did not attend. Framing two issues - whether the dismissal could be set aside and the suit reinstated, and costs - the court held that Order 12 Rule 7 empowers it to set aside dismissals on just terms. Citing Richard Ncharpi Leiyagu v IEBC and Philip Chemowolo v Augustine Kubede, the court found the explanation satisfactory, noted the application was filed within 2 days of dismissal, and found no demonstrated prejudice to the respondent. The court allowed the application, set aside the dismissal of 12.05.2025, reinstated the suit for hearing on merit, and directed each party to bear their own costs of the application.

Key legal issues

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01

Whether the dismissal for want of prosecution/non-attendance of 12.05.2025 should be set aside and the suit reinstated

Holding

Yes - the court found just and sufficient cause, being the confusion of two virtual court links, prompt filing within 2 days, and no demonstrated prejudice to the respondent.

Reasoning

Order 12 Rule 7 empowers the court to set aside a dismissal on such terms as may be just. The applicant gave a satisfactory explanation: his advocate used the e-cause list link but was not admitted, and by the time the alternate link was used the matter had been called out. The application was filed within 2 days, showing diligence. No response was filed demonstrating prejudice not compensable by costs. The court weighed the right to a fair hearing under Article 50 and the duty to serve substantive justice, and exercised its discretion in favour of reinstatement.

p. 3
02

Costs of the application

Holding

Despite costs following the event, the court directed each party to bear their own costs given the nature and circumstances of the application.

Reasoning

The court acknowledged the general rule that costs follow the event but, considering the nature of the application and the circumstances surrounding the confusion over virtual links, exercised its discretion to direct each party to bear their own costs of the application.

p. 3

Legal principles established

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  • Costs follow the event unless the court directs otherwise.
  • A mistake or default by a party should not, absent fraud or intention to overreach, result in the party losing the right to be heard on merit.

Court orders

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  1. 1.The application dated 14.05.2025 be and is hereby allowed
  2. 2.An order setting aside the dismissal orders issued on 12.05.2025 dismissing the suit for non-attendance and/or want of prosecution
  3. 3.The plaintiff's suit reinstated for hearing and determination on its merit
  4. 4.Each party to bear their own costs of the application

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 12 Rule 7
  • Constitution of Kenya, 2010Article 50

Cases cited (2)

  • Richard Ncharpi Leiyagu v Independent Electoral Boundaries Commission & 2 Others
    [2013] KECA 282 (KLR)
  • Philip Chemowolo & Another v Augustine Kubede
    [1982-88] KAR 103 at 1040
Jurisdiction invoked
Order 12 Rule 7 of the Civil Procedure Rules, 2010

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, "Serem v Rotich (Environment and Land Case 347 of 2013) [2026] KEELC 190 (KLR)", Case Analysis (2026). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/190/eng@2026-01-22

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