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ELCPartially AllowedNot stated in the judgment

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)

Environment and Land Court
8 May 2025
1,476 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Plaintiffs/Applicants, Vinya Wa Ng'ele Self Help Group, who were acting in person, filed a Notice of Motion dated October 16, 2022 seeking to set aside the proceedings of 23/09/2019 dismissing their suit for want of prosecution and to have the suit reinstated for hearing. They explained that when they took a hearing date on 10/6/2019, they inadvertently diarised it as 13/10/2019 (and attended on 14/10/2019), and so were unaware of the 23/09/2019 hearing. The Defendant opposed, noting the date the Plaintiffs recorded was a Sunday, and urged the court to uphold the dismissal. The application was canvassed by written submissions, with counsel identifying a single issue: whether the proceedings of 23/09/2019 and consequential orders should be set aside and the suit reinstated. The court invoked Order 12 Rule 7 of the Civil Procedure Rules empowering it to set aside dismissal orders on just terms, and applied the overriding objective under Sections 1A, 1B and 3A of the Civil Procedure Act. Relying on CMC Holdings Ltd v James Mumo Nzioki, Ivita v Kyumbu, Essanji & Another v Solanki and Shah v Mbogo, the court found the Plaintiffs' explanation for non-attendance reasonable and excusable, noting their record of faithful attendance and the Defendant's own earlier absences. The application was allowed as prayed, with the proceedings of 23/09/2019 set aside and the suit reinstated, save that costs of the application were ordered to abide the outcome of the main suit.

Questions the Court framed

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

  1. 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

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Whether the dismissal of the suit on 23/09/2019 for non-attendance should be set aside and the suit reinstated

Holding

The application succeeded; the Applicants' inadvertent diarization error was an excusable mistake and the suit was reinstated

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.Setting aside the proceedings of 23/09/2019 dismissing the suit and all consequential orders
  2. 2.Reinstatement of the suit for hearing
  3. 3.Costs of the application to abide the outcome of the main suit

The bench

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

majority

Wrote the judgment

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On appeal from
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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

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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

p. 4

Costs

Costs of the application to abide the outcome of the main suit

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.

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.
p. 4Final orders - reinstatement of suit
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.
p. 4Discretion to set aside dismissal - Shah v Mbogo
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.
p. 3Substantive justice - Essanji v Solanki
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
p. 3Test for reinstatement - Ivita v Kyumbu

Issues in the judgment

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minor

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

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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, "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.