Ngoma & 2 others (Suing as Chairman, Secretary & Treasury of Vinya wa Ng'ele Self Help Group) v Mutw'iwa (Environment & Land Case 2 of 2018) [2025] KEELC 3623 (KLR)
The bottom line
#Kenya's Environment and Land Court reinstated a land suit dismissed after a self-help group missed a hearing due to a simple diary mistake.
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 Applicants have demonstrated merit in the application for setting aside of the order of 23/9/2019 and for reinstatement of the suit herein
Key legal issues
#Whether the dismissal of the suit on 23/09/2019 for non-attendance should be set aside and the suit reinstated
The application succeeded; the Applicants' inadvertent diarization error was an excusable mistake and the suit was reinstated
The court held it had discretion under Order 12 Rule 7 to set aside dismissal orders. The Plaintiffs, acting in person, had faithfully attended court previously and the Defendant himself had been absent on prior occasions. Their mistake in recording the hearing date as a different date was a plausible excusable error. Guided by the overriding objective of substantive justice and the cited authorities, the court found the explanation reasonable and reinstated the suit, with costs to abide the main suit's outcome.
Legal principles established
#- A court has discretion to set aside an order dismissing a suit for non-attendance upon such terms as may be just
- The discretion to set aside ex parte orders exists to ensure a litigant does not suffer injustice from an excusable mistake or error
Court orders
#- 1.Setting aside the proceedings of 23/09/2019 dismissing the suit and all consequential orders
- 2.Reinstatement of the suit for hearing
- 3.Costs of the application to abide the outcome of the main suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- null
- null
- Jurisdiction invoked
- Article 159 of the Constitution; Sections 1A, 1B and 3A of the Civil Procedure Act; Order 51 Rule 1 of the Civil Procedure Rules
Relief refused
#Costs of the application to the Applicants
The court allowed the application as prayed save for costs, directing that costs abide the outcome of the main suit
Costs
Costs of the application to abide the outcome of the main suit
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.
In the end, the Applicant’s explanation for non-attendance on their part when the matter was dismissed is reasonable. They have therefore demonstrated merit in the application. It ought to be allowed as prayed save for costs which should abide the outcome of the main suit. It is so ordered.
This discretion is intended so to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist the person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice.
The administration of justice should normally require that the substance of all disputes should be investigated and decided on their merits and that error and lapses should not necessarily debar a litigant from the pursuit of his rights.
Thus, even if delay is prolonged if the court is satisfied with the plaintifi’s excuse for the delay and that justice can still be done to the parties notwithstanding the delay the action will not be dismissed
Issues in the judgment
#There is an internal inconsistency in the dates: the supporting affidavit states the hearing date was inadvertently captured as 13/10/2019, while paragraph 17 of the judgment states the Applicant attributed non-attendance to a diarization error 'inadvertently indicated the hearing date as 14/10/2019', and paragraph 5 says the Plaintiffs attended on 14/10/2019
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ngoma & 2 others (Suing as Chairman, Secretary & Treasury of Vinya wa Ng'ele Self Help Group) v Mutw'iwa (Environment & Land Case 2 of 2018) [2025] KEELC 3623 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3623/eng@2025-05-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.