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ELCPartially AllowedNot stated in the judgment text· [2026] KEELC 644 (KLR)

Chelimo & 3 others (Suing as the Administrators of the Estate of the Late Joseph Kibiator Chelimo) v Ruto (Sued as the legal Administrator of the Estate of Ruto Rotich Tingos) (Enviromental and Land Originating Summons E004 of 2025) [2026] KEELC 644 (KLR)

Environment and Land Court
11 February 2026
879 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kitale court reinstated a dismissed land suit because the parties' lawyer's mistake shouldn't end their case—but the other side won costs.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kitale (C. K. Nzili, J) on an application dated 27/10/2025 brought under Orders 10 Rule 11, 12 Rule 6(1) and 51 Rule 1 of the Civil Procedure Rules, Sections 1A and 3A of the Civil Procedure Act and Article 159(2)(a)-(c) of the Constitution, seeking to set aside orders striking out the applicants' suit for non-compliance and to reinstate it for hearing. The suit was a claim for adverse possession brought by originating summons, which the court had deemed a plaint, with directions to comply with Order 11 pre-trial procedures. The applicants, who had filed witness statements and a list of documents, had presumed that the questionnaire-form originating summons satisfied Order 11 and had not filed a separate questionnaire at the time of dismissal; they had since done so. They relied on D T Dobie, Agip (Kenya) Ltd and Richard Ncharpi Leiyagu, citing the right to be heard under Article 50(1). The court framed two issues: whether there were reasonable grounds to reinstate the suit, and the prejudice to the parties if the dismissal stood. Applying Shah v Mbogo and John Nahashon Mwangi v Kenya Finance Bank, the court held that reinstatement is discretionary, guided by Articles 50 and 159 and the oxygen principle; dismissal of suits is draconian; and mistakes of counsel should not be visited on a party. Because the applicants had since complied with the directions, the court allowed the application, set aside the orders of 27/10/2025, reinstated the suit for hearing on merits, and awarded costs to the respondent.

Key legal issues

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01

Whether the dismissal of the applicants' suit for non-compliance with Order 11 directions should be set aside and the suit reinstated

Holding

Yes. The applicants had since complied with the court directions on filing the questionnaire, and it would be fair and just not to drive them from the seat of justice.

Reasoning

The court found that in an adverse possession claim brought by originating summons, the summons had been deemed a plaint and parties directed to comply with Order 11 pre-trial rules. The respondent had complied while the applicants had not, and the applicants' insistence that their originating summons itself satisfied Order 11 was not true at the time of dismissal. However, by the time of the ruling the applicants had complied. Balancing the right to be heard under Articles 50 and 159 and the oxygen principle, the court exercised its discretion under Order 12 Rule 7 to set aside the dismissal on terms just, reinstating the suit for hearing on merits but awarding costs to the respondent.

p. 3

Legal principles established

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  • The court's discretion to set aside a dismissal is meant to avoid injustice or hardship from inadvertence or excusable mistake, not to assist a party who deliberately sought to obstruct or delay the course of justice
  • Reinstatement of a dismissed suit is an exercise of discretion informed by Articles 50 and 159 of the Constitution and the oxygen principle under Sections 1, 1A and 3A of the Civil Procedure Act
  • Mistakes of counsel should not be visited on a party so as to bar them from their constitutional right of access to justice, though procedural rules must be adhered to

Court orders

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  1. 1.The orders of 27/10/2025 striking out/dismissing the suit are set aside
  2. 2.The suit is reinstated for hearing on merits
  3. 3.Costs to the respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 10 Rule 11
  • Civil Procedure RulesOrder 12 Rule 6(1)
  • Civil Procedure RulesOrder 12 Rule 7
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 11
  • Civil Procedure Act, Cap 21, Laws of KenyaSections 1, 1A, 3A
  • Constitution of KenyaArticle 159(2)(a), (b), (c)
  • Constitution of KenyaArticle 50(1)

Cases cited (5)

  • D T Dobie & Company (Kenya) Limited -vs- Joseph Mbaria Muchina & another
    [1982] KLR 1
  • Agip (Kenya) Ltd -vs- Highland Tyres
    (2001) KLR 630
  • Richard Ncharpi Leiyagu -vs- Independent Electoral Boundaries Commission & 2 others
    [2013] KECA 282 (KLR)
  • Shah -vs- Mbogo & another
    [1967] EA 1116
  • John Nahashon Mwangi -vs- Kenya Finance Bank Limited (in Liquidation)
    [2015] eKLR [2015] KEHC 6789 (KLR)
Jurisdiction invoked
Orders 10 Rule 11, Order 12 Rule 6(1), Order 51 Rule 1 of the Civil Procedure Rules; Sections 1A, 3A of the Civil Procedure Act; Article 159(2)(a), (b) and (c) 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, "Chelimo & 3 others (Suing as the Administrators of the Estate of the Late Joseph Kibiator Chelimo) v Ruto (Sued as the legal Administrator of the Estate of Ruto Rotich Tingos) (Enviromental and Land Originating Summons E004 of 2025) [2026] KEELC 644 (KLR)", Case Analysis (2026). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/644/eng@2026-02-11

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