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ELCAllowedNot stated in the judgment· [2026] KEELC 4663 (KLR)

Nyatangi t/a Benom Hardware v Amiral & another (Environment and Land Appeal E035 of 2025) [2026] KEELC 4663 (KLR)

High Court of Kenya (Appellate side, appeal from subordinate court)
23 July 2026
CYC. K. Yano
1,661 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court in Eldoret reinstated an appeal dismissed after a lawyer missed a virtual hearing, ruling that network problems were excusable.

What this practically means

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Executive summary

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The appellant/applicant, through a Notice of Motion dated 15th April 2026, sought setting aside of orders made on 13th April 2026 dismissing its appeal for want of prosecution, reinstatement of the appeal, and costs in the appeal. The application was supported by an affidavit of counsel, Elijah Momanyi Mogona, who explained that power outages and network challenges prevented him from joining the virtual court mention on time, by which point the appeal had already been dismissed. Though served on 23rd April 2026, the respondents filed no response, and the application proceeded as unopposed. The court framed a single issue: whether the applicant had shown just cause to set aside the dismissal and reinstate the appeal. Applying Order 12 Rule 7 of the Civil Procedure Rules and guided by Articles 159 and 50 of the Constitution, the court noted the discretion must be exercised judiciously, not on sympathy. While counsel annexed no proof of the network challenges, the court observed such challenges are neither isolated nor peculiar to litigants, and granted the applicant the benefit of doubt, finding the non-attendance was not deliberate. Relying on CMC Holdings v Nzioki and the substantive-justice principle, the court found a just and sufficient reason to set aside the dismissal of 13th April 2026 and reinstate the appeal for hearing on merit. Each party was directed to bear its own costs of the application. Judgment delivered at Eldoret on 23rd July 2026 by Hon. C. K. Yano, Judge.

Key legal issues

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01

Whether counsel's non-attendance due to alleged power outages and network challenges constituted a just and sufficient reason to set aside the dismissal for want of prosecution

Holding

Yes - the court granted the applicant the benefit of doubt, finding the non-attendance was not deliberate, and set aside the dismissal and reinstated the appeal.

Reasoning

Although counsel attributed his failure to attend the virtual session to power outages and network challenges, no proof was annexed. However, the court noted that network challenges are not peculiar to the applicant, as courts also experience downtime. Guided by Article 159 (substantive justice), Article 50 (fair hearing), Order 12 Rule 7, and the CMC Holdings v Nzioki principle that a litigant should not suffer injustice from an excusable mistake by an advocate, the court found a just and sufficient reason to set aside the dismissal and reinstate the appeal.

p. 3

Legal principles established

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  • The power to set aside a dismissal under Order 12 Rule 7 is discretionary and must be exercised judiciously, not on sympathy or whimsically
  • The court's duty is to serve substantive justice; each party has a legitimate expectation of an opportunity to advance its case and a determination on merit

Court orders

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  1. 1.The application dated 15.04.2026 is allowed
  2. 2.An order setting aside the orders made on 13.04.2026 dismissing the appeal
  3. 3.An order reinstating the appeal for hearing and determination on merit
  4. 4.Each party to bear their own costs of the application
Jurisdiction invoked
Order 12 Rule 7 of the Civil Procedure Rules; Articles 159 and 50 of the Constitution

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, "Nyatangi t/a Benom Hardware v Amiral & another (Environment and Land Appeal E035 of 2025) [2026] KEELC 4663 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4663/eng@2026-07-23

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