Chere v Lake Basin Development Authority (Judicial Review E045 of 2023) [2025] KEELRC 2913 (KLR)
The bottom line
#A Kenyan court refused to revive a case dismissed after the litigant missed a virtual hearing and could not prove his excuse.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the instant application has merit, that is, whether the applicant gave sufficient justification for his non-attendance on 23rd July, 2025 to warrant setting aside the dismissal order and reinstating the application dated 10th July, 2025
Key legal issues
#Whether the applicant demonstrated sufficient justification for non-attendance on 23rd July, 2025
He did not; the call-log annextures were inadmissible for want of a certificate under Section 106B of the Evidence Act, and even if admissible the applicant failed the test of diligence
The court found the electronic evidence unauthenticated and inadmissible, leaving the applicant with no verifiable evidence of the virtual-link challenges. Even on the merits, the applicant did not disclose the link used, the time of his access attempts, or the nature of the challenges, while respondent's counsel accessed the same publicly available link without difficulty.
Whether the court should exercise its discretion to reinstate the dismissed application
No; dismissal for non-attendance was justified and the discretionary favour was not earned
The applicant was aware the application was listed, failed to attend promptly, and blamed the virtual link without demonstrating any defect in it. The respondent's counsel attended via the publicly available cause-list link without challenge. The court therefore declined to exercise its discretion in the applicant's favour and dismissed the application.
Legal principles established
#- A party relying on an electronic record printed on paper, stored, recorded or copied on optical or electro-magnetic media must accompany it with a Certificate of Electronic Evidence; without it the record is inadmissible
- The court has jurisdiction to set aside an order of dismissal for non-attendance, to be exercised judicially based on the grounds relied upon and circumstances including prejudice
- A litigant must exercise diligence in prosecuting his case; a case belongs to the party in the suit
Court orders
#- 1.The Notice of Motion dated 6th August, 2025 is dismissed
- 2.Parties shall bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 12 Rule 7, Order 51 Rule 1 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act
Relief refused
#Setting aside the dismissal Order made on 23rd July, 2025
Applicant failed to prove sufficient justification for non-attendance; his electronic evidence was inadmissible for want of a certificate under Section 106B of the Evidence Act
Reinstatement of the application dated 10th July, 2025 for hearing
Follows automatically from the failure to set aside the dismissal order
Costs
Parties shall bear their own costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
it is the finding of the court that the applicant has failed to prove that he had suficient justification for non-attendance of court on 23rd July, 2025, for the court to exercise its discretionary favour.
The absence of the certificate in question rendered the annextures relied upon by the applicant inadmissible as evidence for purposes of this application.
Flowing from the foregoing, it is discernible that the Notice of Motion dated 6th August, 2025 is for dismissal and it is accordingly dismissed.
Parties shall bear their own costs.
It is trite law that a case belongs to the party in the suit. In this instance, the applicant failed the test of diligence.
Issues in the judgment
#Applicant's affidavit deposition refers to a virtual link challenge on 23rd July, 2023 although the material date throughout is 2025
The record recites that the applicant was absent on 23rd July, 2025 while also deposing he accessed the virtual court but was told the matter had been called out earlier and dismissed
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chere v Lake Basin Development Authority (Judicial Review E045 of 2023) [2025] KEELRC 2913 (KLR)", Case Analysis (2025). ELRC Judicial Review application; Notice of Motion dated 6th August, 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2913/eng@2025-10-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.