Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNot stated in the judgment provided· [2026] KEELC 4375 (KLR)

Kiptanui & another (Suing as the Administrators of the Estate of Abraham Kipsang Kiptanui (Deceased)) v Ngetich & 3 others (Environment and Land Case E019 of 2022) [2026] KEELC 4375 (KLR)

Environment and Land Court
9 July 2026
CYC.K. Yano
2,074 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court reinstated a land suit dismissed after the plaintiffs' lawyer fell seriously ill, prioritising a fair hearing over strict procedural rules.

What this practically means

#

Executive summary

#
The plaintiffs/applicants filed a Notice of Motion dated 2nd January 2026 seeking to set aside the judgment delivered virtually on 20th November 2025 by Hon. Justice C.K. Yano, to reinstate their suit (originally a claim for permanent injunction against trespass) and for a stay of execution. Their suit had been dismissed for non-attendance on 15th October 2025. They blamed the non-attendance on the illness of their advocate, Mr. Tunoi, who was diagnosed with left distal femur Osteosarcoma on 23rd October 2024 and underwent treatment in India followed by chemotherapy, arguing that the mistakes of counsel should not be visited on litigants. The 4th defendant opposed, contending the application was defective, that T.K. Rutto & Company never represented the applicants, that no proof showed the advocate was incapacitated on the hearing date, and that litigants bear personal responsibility to follow up their cases. The court framed two issues: whether sufficient reason existed to set aside the judgment of 20th November 2025, and costs. Relying on Order 12 Rule 7 of the Civil Procedure Rules, Articles 159 and 50 of the Constitution, and the principles in Shah v Mbogo, Patel v EA Cargo Handling Services and Daqare Transporters v Chevron Kenya, the court held the medical records sufficiently proved counsel's illness and found the plaintiffs may not have known of the hearing date. The court allowed the application, set aside both the dismissal of 15th October 2025 and the judgment of 20th November 2025, reinstated the suit for priority hearing, and directed each party to bear their own costs.

Key legal issues

#
01

Whether sufficient reason existed to set aside the dismissal of the plaintiffs' suit for non-attendance and the consequent judgment

Holding

The court found just and sufficient reason, granting the applicants the benefit of doubt on the basis of counsel's documented illness and the possibility the plaintiffs were unaware of the hearing date

Reasoning

The court noted the advocate's medical records sufficiently proved his illness even though nothing showed incapacitation on the exact hearing date. Counsel Matekwa had held brief on 03.03.2025 and may have inadvertently failed to communicate the consented hearing date. Guided by Shah v Mbogo principles, Articles 159 and 50 and Order 12 Rule 7, the court prioritised substantive justice, holding any prejudice to respondents compensable by costs.

p. 5
02

Costs of the application

Holding

Each party directed to bear their own costs despite the general rule that costs follow the event

Reasoning

The court acknowledged the general rule that costs follow the event unless the court directs otherwise, but departed from it given the circumstances of the case, effectively spreading the prejudice of the adjournment-caused delay.

p. 5

Legal principles established

#
  • The court's power under Order 12 Rule 7 to set aside a judgment or dismissal is discretionary and must be exercised judiciously to do justice between the parties
  • The discretion under Order 12 Rule 7 is exercised to avoid injustice arising from inadvertent or excusable mistakes

Court orders

#
  1. 1.An Order be and is hereby issued setting aside the dismissal order of the plaintiffs' case for non-attendance issued on 15.10.2025
  2. 2.An order is hereby issued reinstating the plaintiffs' suit herein and the same be listed for hearing on priority basis
  3. 3.The Judgment of this court issued virtually on the 20th November, 2025 be and is hereby set aside
  4. 4.Each party to bear their own costs of the application
Jurisdiction invoked
Order 12 Rule 7 of the Civil Procedure Rules, read with Articles 159 and 50 of the Constitution

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kiptanui & another (Suing as the Administrators of the Estate of Abraham Kipsang Kiptanui (Deceased)) v Ngetich & 3 others (Environment and Land Case E019 of 2022) [2026] KEELC 4375 (KLR)", Case Analysis (2026). Not stated in the judgment provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4375/eng@2026-07-09

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