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ELCDismissed· [2026] KEELC 1611 (KLR)

Kadhengi v Mruu (Environment and Land Miscellaneous Case E019 of 2023) [2026] KEELC 1611 (KLR)

Environment and Land Court
12 March 2026
MNMwangi Njoroge
499 words in judgment
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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 was a ruling on a notice of motion dated 29th September 2025 in which the plaintiff sought the setting aside of orders and proceedings of the same date dismissing the plaintiff's suit for non-attendance at a virtual hearing, together with an order that the matter be fixed for hearing. The application was supported by the affidavit of Paul W. Magolo, advocate, who deponed that he attempted to log into the virtual courtroom, could not be heard when the matter was called out because of a technical hitch, and that his gadget failed him that morning; he attached an excerpt from the system labelled 'PWM1' as evidence of his presence on the platform, and asserted substantial loss if the dismissal was not set aside. The application was opposed through the affidavit of Stephen Jumbale, advocate, for the defendant, who denied any technical hitches, pointed out the absence of screenshots, official court logs or an ICT report, noted that no appearance was recorded by the court, and observed that no attempt was made to reach the registry for a mention. The court, Mwangi Njoroge J, held that although it has a wide discretion to set aside a dismissal, that discretion must be exercised judiciously and on affidavit evidence; an applicant must avail proper reasons for non-attendance. Perusing the affidavit, the court found no document showing counsel, the plaintiff or her witnesses were present on the platform before or after dismissal. Lacking such threshold evidence, the application was dismissed with costs on 12th March 2026.

Key legal issues

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01

Whether the applicant demonstrated proper reasons for failure to attend the virtual hearing

Holding

The applicant failed to demonstrate proper reasons; the only supporting document was a printout summarising events of the day, with no evidence of actual presence on the platform

Reasoning

The court held that affidavit evidence enables assessment of whether to set aside a dismissal. An applicant seeking setting aside of a dismissal for failure to attend must avail proper reasons for non-attendance. Here, no document showed counsel, plaintiff or witnesses were present on the platform immediately before or after dismissal, so the threshold evidentiary burden was not met.

p. 2
02

Whether the court should exercise its discretion to set aside the dismissal

Holding

The discretion, though wide, was not exercised in the applicant's favour because it must be exercised judiciously and the evidentiary threshold was not met

Reasoning

The court acknowledged its wide discretion but stressed it must be exercised judiciously and on evidence adduced by affidavit. Since the supporting affidavit did not demonstrate the alleged technical hitch or attendance on the platform, the applicant did not deserve a setting aside order.

p. 2

Legal principles established

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  • The court's discretion to set aside a dismissal for non-attendance is wide but must be exercised judiciously, and an applicant must avail proper reasons for non-attendance supported by affidavit evidence

Court orders

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  1. 1.The application dated 29th September 2025 is dismissed with costs
Jurisdiction invoked
Inherent discretion of the court to set aside dismissal orders for non-attendance (statutory provision not cited in the judgment)

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, "Kadhengi v Mruu (Environment and Land Miscellaneous Case E019 of 2023) [2026] KEELC 1611 (KLR)", Case Analysis (2026). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1611/eng@2026-03-12

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