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ELCPartially AllowedNot stated in the judgment text provided· [2026] KEELC 1799 (KLR)

Malvi Investments Limited v National Environment Management Authority (Environment and Land Case 450 of 2018) [2026] KEELC 1799 (KLR)

Environment and Land Court
24 March 2026
JKJ. G. Kemei
1,130 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court reinstated a land suit dismissed after a lawyer missed a virtual hearing, on condition it be heard within 30 days.

What this practically means

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Executive summary

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This was an unopposed application by the Plaintiff to set aside and reinstate a suit dismissed on 5/5/2025 for want of prosecution. The Notice of Motion dated 7/5/2025, brought under Article 159(2)(a), (b) and (d) of the Constitution, Sections 1A, 3A and 63(e) of the Civil Procedure Act, and Order 12 Rules 6 and 7 and Order 51 Rule 1 of the Civil Procedure Rules, 2010, was supported by the affidavit of the Plaintiff's Counsel, Alphonce Muema Mbindyo. Counsel explained that orders for a site visit to be conducted by the Water Resource Authority had only been uploaded to the Court Tracking System on 4/4/2025 and served late; on the call-over date of 5/5/2025 he was attending to another matter (ELC Makueni Case No. 333 of 1999), believed the case would proceed virtually, logged into the virtual platform at 11.00 a.m. and waited until 1.00 p.m. without being admitted, only to learn from the tracking system that the suit had been dismissed. Although served, the Defendant filed no response and the application was therefore unopposed. The court identified two issues: whether the suit should be reinstated, and who should bear the costs. Applying Order 12 Rule 7, the inherent jurisdiction under Section 3A, and the principles in Esther Wamaitha Njihia & 2 Others v Safaricom Ltd and Shah v Mbogo, the court found the Plaintiff had been diligent, Counsel's non-attendance was an excusable mistake, the application was filed timeously (two days after dismissal), and substantive justice under Article 159(2)(d) favoured reinstatement. The application was allowed; the dismissal order was set aside and the suit reinstated on condition that the Plaintiff set it down for hearing within 30 days, in default of which it would stand dismissed. No express costs order was made.

Key legal issues

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01

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

Holding

Yes. The dismissal order of 5/5/2025 was set aside and the suit reinstated, conditional on the Plaintiff setting the matter down for hearing within 30 days, failing which it stands dismissed.

Reasoning

The court applied Order 12 Rule 7 and its inherent jurisdiction under Section 3A of the Civil Procedure Act, guided by Esther Wamaitha Njihia & 2 Others v Safaricom Ltd. It found the Plaintiff had been diligent in prosecuting the suit; Counsel's failure to attend was an excusable mistake attributable to difficulties with virtual court access; and the application was filed timeously, only two days after dismissal. Article 159(2)(d)'s command to serve substantive justice weighed in favour of reinstatement.

p. 3

Legal principles established

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  • Where a suit has been dismissed under Order 12, the court may on application set aside or vary the dismissal upon such terms as may be just
  • Reinstatement of a suit is a discretionary exercise to be applied judiciously to avoid injustice or hardship arising from excusable mistake, and denial of a hearing should be a court's last resort

Court orders

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  1. 1.The application dated 7/5/2025 is allowed in the interests of justice
  2. 2.The order of 5/5/2025 dismissing the Plaintiff's suit in its entirety for non-attendance is set aside
  3. 3.The suit is reinstated on condition that the Plaintiff sets the matter down for hearing within 30 days, in default of which it shall stand dismissed

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(a), (b) & (d)
  • Civil Procedure ActSections 1A, 3A, 63(e)
  • Civil Procedure Rules, 2010Order 12 Rules 6 & 7; Order 51 Rule 1

Cases cited (3)

  • Esther Wamaitha Njihia & 2 Others -vs- Safaricom Ltd
    [2014] eKLR
  • Patel vs E.A. Cargo Handling Services Ltd
  • Shah vs. Mbogo
    (1979) EA 116
Jurisdiction invoked
Article 159(2)(a), (b) & (d) of the Constitution; Sections 1A, 3A & 63(e) of the Civil Procedure Act; Order 12 Rules 6 & 7 and Order 51 Rule 1 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, "Malvi Investments Limited v National Environment Management Authority (Environment and Land Case 450 of 2018) [2026] KEELC 1799 (KLR)", Case Analysis (2026). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1799/eng@2026-03-24

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