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)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the dismissal of the applicants' suit for non-compliance with Order 11 directions should be set aside and the suit reinstated
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.
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.
Legal principles established
#- 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
#- 1.The orders of 27/10/2025 striking out/dismissing the suit are set aside
- 2.The suit is reinstated for hearing on merits
- 3.Costs to the respondent
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.