Farah v Mohammed & 3 others (Environment and Land Case E060 of 2023) [2026] KEELC 4856 (KLR)

The court applied the Shah v Mbogo line of authorities: the discretion exists to relieve against accident, inadvertence or excusable mistake, not deliberate obstruction. The medical documents corroborated the illness and no evidence impugned their authenticity. The previous final adjournment was a relevant but non-determinative factor. A litigant should not be penalised for an unforeseeable contingency like illness absent concrete evidence of abuse.

The Defendants had prosecuted their counterclaim and closed their case, incurring real expense. However, they did not demonstrate prejudice incapable of compensation by costs, per CMC Holding Limited v Nzioki. Refusing reinstatement would permanently exclude the Plaintiff from the proceedings, a more severe consequence. Reinstatement was therefore made conditional on thrown-away costs within 14 days, failing which the dismissal would stand reinstated.

Because the counterclaim was heard only because the Plaintiff's suit had first been dismissed, leaving those proceedings intact would deny the Plaintiff the chance to cross-examine and defend, defeating the purpose of setting aside. The interests of justice require restoring the parties as closely as possible to their pre-non-attendance positions while preserving the Defendants' right to pursue the counterclaim.