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ELCAllowedELC Petition No. E011 of 2025· [2026] KEELC 4839 (KLR)

Mulong & 82 others v General & 9 others (Environment and Land Petition E011 of 2025) [2026] KEELC 4839 (KLR)

Environment and Land Court
24 July 2026
GGG.M. Gitonga
2,011 words in judgment
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The bottom line

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Kenya's Environment and Land Court set aside 12 May 2026 proceedings after a lawyer missed court by honest mistake, prioritising every party's right to be heard.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kitale (G.M. Gitonga, J) determines the 1st Interested Party's Notice of Motion dated 20/5/2026 in Petition No. E011 of 2025, seeking to set aside the proceedings of 12/5/2026 and all consequential orders, and to be granted an opportunity to be heard. The 1st interested party explained that its counsel inadvertently failed to diarize the court date and travelled for official engagements; as a result, the court deemed the petitioners' application dated 24/12/2025 unopposed and allowed prayers 2 and 4 for one year, granting respondents and interested parties 60 days to respond to the main petition. The petitioners opposed, noting that no response to their application had ever been filed and warning against special treatment and delay, while the 1st, 2nd, 3rd, 4th and 5th respondents indicated no opposition to the motion. The court grounded its jurisdiction in Order 10 Rule 11 of the Civil Procedure Rules, analogising to setting aside default judgment, and applied the Patel and Shal vs Mbogo principles that the discretion exists to avoid injustice from inadvertence or excusable error, not to reward deliberate obstruction. Noting that the matter had been listed for mention for directions rather than for hearing, the court granted the 1st interested party's counsel the benefit of doubt and set aside the proceedings of 12/5/2026 and consequential orders, restoring the status quo ante, with directions to be given and no orders as to costs.

Key legal issues

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01

Whether the inadvertent failure of the 1st interested party's counsel to attend the mention of 12/5/2026 warranted setting aside the proceedings and consequential orders

Holding

The court exercised its discretion in favour of the 1st interested party, setting aside the proceedings of 12/5/2026 and the consequential orders, restoring the parties to the status quo ante.

Reasoning

The court likened the jurisdiction to that of setting aside default judgment under Order 10 Rule 11. It found the matter was listed for mention for directions, not for the hearing of the application; counsel's misdiarization affidavit merited the benefit of doubt; the petitioners' counsel and the court were not at fault; and justice favoured allowing the 1st interested party an opportunity to be heard.

p. 11

Legal principles established

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  • The jurisdiction to set aside proceedings and orders arising therefrom is discretionary, akin to setting aside default judgment, exercisable to avoid injustice from accident, inadvertence or excusable error, but not to assist deliberate obstruction or delay.
  • The primary role of the court is to do justice.

Court orders

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  1. 1.Proceedings of 12/5/2026 set aside together with the consequential orders arising therefrom
  2. 2.Parties restored to the status quo ante before the filing of the application dated 24/12/2025
  3. 3.Court to give directions on the application dated 24/12/2025 and, where possible, engage parties on possibility of compromising it for expeditious disposal of the petition
  4. 4.No orders as to costs
Jurisdiction invoked
Sections 1A, 1B, 2, 3A and 63(e) of the Civil Procedure Act; Order 51 Rules 1 and 15 and Order 10 Rule 11 of the Civil Procedure Rules, 2010; Article 159(2)(a) and (d) of the Constitution, 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, "Mulong & 82 others v General & 9 others (Environment and Land Petition E011 of 2025) [2026] KEELC 4839 (KLR)", Case Analysis (2026). ELC Petition No. E011 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4839/eng@2026-07-24

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