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ELCDismissedELC Suit No. 36 of 2019· [2026] KEELC 1378 (KLR)

Soi v Rutoh (Enviromental and Land Originating Summons 36 of 2019) [2026] KEELC 1378 (KLR)

Environment and Land Court
5 March 2026
LOL. A. Omollo
2,975 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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 Kericho (L. A. Omollo, J) on the Plaintiff/Applicant's Notice of Motion dated 24th January, 2025 seeking reinstatement of ELC Suit No. 36 of 2019, an adverse possession claim over 3.3 acres of LR No. Kericho/Ndubai/344, which was dismissed for want of prosecution on 22nd January, 2025. The Plaintiff's Counsel, Joshua Kipkemoi Mutai, deponed that a discussion with the Defendant's Counsel on 21st January 2025 led him to believe the matter would not proceed, so neither he nor his client travelled from Bomet. The Defendant's Counsel, Nelly Chelimo Koskey, denied the alleged discussions, asserting she was always ready to proceed, that she had even alerted the Plaintiff's Counsel, and that both she and the Court waited an hour in open Court. The Court's record showed a last adjournment had been granted on 25th September 2024, and on 22nd January 2025 the Plaintiff's Counsel was present during the call over when the matter was confirmed for hearing at 10:30 am but did not appear. The Court also found the application, though dated 24th January 2025, was only filed on 17th June 2025 — an unexplained delay of about five months, contrary to the Plaintiff's misrepresentation. Applying Order 12 Rules 3(1) and 7 of the Civil Procedure Rules and the authorities on reinstatement, the Court held there was no sufficient cause and dismissed the application with costs to the Defendant/Respondent.

Key legal issues

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01

Whether sufficient cause was shown to reinstate the suit dismissed for want of prosecution

Holding

The application was dismissed; no reasonable explanation was given for the delay in filing the reinstatement application or for the Plaintiff's failure to attend Court on the hearing date

Reasoning

The Court noted that the Plaintiff's Counsel was granted a last adjournment on 25th September 2024, yet failed to appear in open Court at 10:30 am on 22nd January 2025 after the matter was confirmed for hearing in his presence during the call over. The reasons advanced for non-attendance were disputed. Further, the application was dated 24th January 2025 but only filed on 17th June 2025, an inordinate and unexplained delay of about five months.

p. 7
02

The scope of the Court's discretion to reinstate a dismissed suit

Holding

The discretion is judicious, aimed at avoiding injustice from excusable mistake, and not available to a party who has deliberately delayed justice; delayed justice prejudices the other party

Reasoning

Relying on HAM v SOS, Fidelity Shield Insurance and Stephen Ndichu v Monty's Wines and Spirits Ltd, the Court held that reinstatement appeals to the Court's discretion which must be exercised judiciously in light of Article 50(1) fair trial rights, but cannot be designed to reward deliberate obstruction or delay. The Plaintiff's misrepresentation about the filing date weighed against exercising the discretion in his favour.

p. 7

Legal principles established

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  • Reinstatement of a suit dismissed for want of prosecution is a discretionary remedy to be exercised judiciously, taking cognizance of the unique circumstances of the case
  • The discretion to reinstate is meant to avoid injustice or hardship from accident, inadvertence or excusable mistake, but not to assist a party who has deliberately obstructed or delayed the cause of justice

Court orders

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  1. 1.The application dated 24th January, 2025 is dismissed
  2. 2.Costs of the application to the Defendant/Respondent

Authorities

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Legislation

  • Civil Procedure ActSections 3, 3A, 1A, 1B
  • Civil Procedure RulesOrder 51, Order 12 Rule 3(1), Order 12 Rule 7, Order 17 Rule 2, Order 11
  • Constitution of Kenya, 2010Articles 50(1), 159(2)(d)

Cases cited (8)

  • Mwangi S. Kaimenyi vs Attorney General & another
    [2014] eKLR
  • Tirus Njoroge vs Kenya Revenue Authority
    [2023] eKLR
  • Patrick Wanyonyi vs Kiprono Chepkwony
    [2024] eKLR
  • HAM v SOS
    [2021] eKLR
  • Fidelity Shield Insurance Company Limited v Architects & another
    [2025] KEHC 9989 (KLR)
  • Stephen Ndichu v Monty's Wines and Spirits Ltd
    [2006] KEHC 3445 (KLR)
  • Patel v EA Cargo Handling Services Ltd
    (1974) EA 75
  • Shah v Mbogo
    [1969] EA 116
Jurisdiction invoked
Sections 3 & 3A of the Civil Procedure Act and Order 51 of the Civil Procedure Rules; Articles 50(1) & 159(2)(d) of the Constitution cited

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, "Soi v Rutoh (Enviromental and Land Originating Summons 36 of 2019) [2026] KEELC 1378 (KLR)", Case Analysis (2026). ELC Suit No. 36 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1378/eng@2026-03-05

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