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ELCAllowedELC Case No. 96 of 2014· [2026] KEELC 4720 (KLR)

Cheboswony & another v Ngeno & 4 others (Environment and Land Case 96 of 2014) [2026] KEELC 4720 (KLR)

Environment and Land Court
23 July 2026
2,207 words in judgment
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The bottom line

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Kenya's Environment and Land Court reinstated a dismissed application, ruling that a lawyer's network failures shouldn't cost clients their day in court.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Eldoret (C. K. Yano, J) determined a Notice of Motion dated 15th April 2026 by the 1st and 2nd defendants seeking to set aside orders of 15.04.2026 dismissing their application dated 3/11/2025 (which sought stay of execution following judgment delivered in the plaintiffs' favour on 16.10.2025) and to reinstate that application for hearing on merit. The applicants' counsel, Mr. Elijah Momanyi, explained his failure to attend the virtual court session on time as attributable to constant power outages and network challenges beyond his control. The plaintiffs, through a replying affidavit sworn by Mary Shakwei Cheboswony, opposed the application, denying service of the application dated 3/11/2025, disputing the power-outage explanation, and blaming the defendants for denying themselves a hearing. The court framed the sole issue as whether the applicants had proved grounds to warrant setting aside the dismissal and reinstatement. Guided by Order 12 Rule 7 of the Civil Procedure Rules, Articles 159 and 50 of the Constitution, and authorities including Mbogo v Shah and CMC Holdings v Nzioki, the court held that mistakes of an advocate should not be visited upon clients, that the non-attendance was not intentional, and that no prejudice would befall the plaintiffs. The application was allowed: the dismissal orders were set aside, the application dated 3/11/2025 was reinstated for hearing on merit, and the applicants were condemned to throw-away costs of Kshs. 10,000/=.

Key legal issues

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01

Whether the applicants' non-attendance on 15.04.2026 was excusable so as to warrant setting aside the dismissal

Holding

The court found a just and sufficient reason existed, attributing the non-attendance to the advocate's inadvertence rather than intention of the litigants

Reasoning

The advocate attributed his failure to join the virtual session to power outages and network challenges. Though no proof was annexed, the court, guided by substantive justice under Article 159, the right to a fair hearing under Article 50, Order 12 Rule 7 and CMC Holdings v Nzioki, held that mistakes of counsel should not be visited on clients and that no prejudice would befall the plaintiffs since all parties would be heard on merit.

p. 11
02

Whether prejudice would be suffered by the plaintiffs upon reinstatement

Holding

No prejudice would be occasioned since all parties would be accorded an equal opportunity to ventilate their claims

Reasoning

The court reasoned that reinstatement serves substantive justice because the application dated 3/11/2025 would be heard and determined on merit, with the plaintiffs retaining a right of reply as the application had been served on their counsel.

p. 11

Legal principles established

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  • The discretion under Order 12 Rule 7 to set aside a dismissal is discretionary and must be exercised judiciously, not on sympathy
  • Mistakes of an advocate should not be visited upon the client; a party should not be condemned unheard

Court orders

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  1. 1.The application dated 15.04.2026 is hereby allowed
  2. 2.Setting aside of the orders made on 15.04.2026 dismissing the application dated 3/11/2025
  3. 3.Reinstatement of the application dated 3/11/2025 for hearing and determination on merit
  4. 4.The 1st and 2nd defendants/applicants to pay the plaintiffs/respondents throw-away costs of Kshs. 10,000/=
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, "Cheboswony & another v Ngeno & 4 others (Environment and Land Case 96 of 2014) [2026] KEELC 4720 (KLR)", Case Analysis (2026). ELC Case No. 96 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4720/eng@2026-07-23

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