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ELCPartially AllowedNot stated in the judgment

Adala v Omaya & 4 others (Environment & Land Case E004 of 2021) [2025] KEELC 687 (KLR)

Environment and Land Court, High Court of Kenya
20 February 2025
1,483 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Siaya determines the 1st Defendant's Notice of Motion dated 30th September 2024, which sought to set aside orders of 26th September 2024 dismissing the 1st Defendant's application dated 4th July 2024 for want of prosecution, and to reinstate that application for hearing on its merits. Counsel for the applicant, Maxwell O. Ogonda, deponed that he attempted to attend the virtual hearing of 26th September 2024 but his call dropped due to internet fluctuation and a power outage, and that he sought readmission through the Siaya High Court forum. The plaintiff's counsel, Mr. Agina, filed no response despite being served and given an opportunity, so the application was unopposed. The court, however, subjected it to a merit review under Order 10 Rule 11, Order 12 Rule 7 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act. Relying on the Langat decision on the obligations of parties facing virtual-platform failures, the court noted the annexed WhatsApp conversation was missing from the record but treated this as an oversight. Perusal of the court record confirmed a power outage, and the court gave counsel the benefit of the doubt. No prejudice was shown by the respondent, and the reinstated application concerns a stay of execution of the court's judgment pending appeal. The court found the application merited, allowed it in terms of prayers 1 and 2, and directed that costs abide the outcome of the appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the application dated 30th September 2024 seeking to set aside the orders of 26th September 2024 dismissing the 1st Defendant's application dated 4th July 2024 for want of prosecution is merited

Key legal issues

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01

Whether the dismissal of the 1st Defendant's application dated 4th July 2024 for want of prosecution on 26th September 2024 should be set aside where counsel cited internet fluctuation and a power outage

Holding

The application was merited; the dismissal orders were set aside and the application dated 4th July 2024 reinstated for hearing on the merits.

Reasoning

The court reviewed the record and confirmed there was a power outage on 26/9/2024, with court sitting in chambers and counsel for the plaintiff suffering audio problems. Given the confirmed power outage, the court gave counsel the benefit of the doubt. The respondent filed no response and identified no prejudice. The dismissed application sought a stay of execution pending appeal, and the court found the lower risk of injustice lay in hearing the application on its merits.

p. 3
02

Whether an unopposed reinstatement application must still be justified on its merits

Holding

Yes; even where unopposed, the application must be subjected to a merit review.

Reasoning

The court noted the application was unopposed because the respondent, though served and given time, filed no response or submissions. The court nevertheless declined to allow it merely by default and instead examined the merits under Order 10 Rule 11, Order 12 Rule 7 and the overriding objective, considering the reasonableness of the grounds and the absence of demonstrated prejudice.

p. 2

Legal principles established

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  • Where judgment or an order has been entered under Order 10, the court may set aside or vary it and any consequential decree or order upon such terms as are just.
  • In setting aside a dismissal the court must consider whether the grounds are reasonable and whether any prejudice will be caused to the adverse party as well as to the applicant.

Court orders

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  1. 1.The orders issued on 26th September 2024 dismissing the 1st Defendant's application dated 4th July 2024 for want of prosecution are set aside
  2. 2.The 1st Defendant's application dated 4th July 2024 is reinstated for hearing and determination on its merits
  3. 3.Costs of the application to abide the outcome of the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Inherent jurisdiction and case-management provisions: Order 10 Rule 11 and Order 12 Rule 7 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act (Chapter 21, Laws of Kenya)

Relief refused

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Prayer 3 - that the Defendants be condemned to bear the costs of the application

Instead of condemning the Defendants to costs, the court directed that costs abide the outcome of the appeal

p. 3

Costs

Costs of the application to abide the outcome of the appeal

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The upshot of the above is that I find the application dated 30/09/24 merited and it is hereby allowed in terms of prayers 1 and 2.
p. 3Final orders - reinstatement allowed
As to costs I note that the Defendants are ready to be condemned to payment of costs. Let the costs abide the outcome of the appeal.
p. 3Costs order
I think the lower risk of injustice should be to have the said application heard on its merits.
p. 3Balance of justice in setting aside dismissal
Even where there is failure of the internet or anticipated network failure, the parties are under obligation to inform the Court as soon as practicable that they are in a problem and unable to log into the virtual session.
p. 3Duty of diligence where virtual appearance fails (adopted dictum)

Issues in the judgment

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minor

The judgment inconsistently refers to the reinstated application's date, sometimes as 4th July 2024 and once as 04 September 2024

minor

The supporting affidavit and prayers refer to 'the Defendants' bearing costs, but the application is brought only by the 1st Defendant/Applicant

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, "Adala v Omaya & 4 others (Environment & Land Case E004 of 2021) [2025] KEELC 687 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/687/eng@2025-02-20

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