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Republic v Deputy County Commissioner, Kilungu Sub-County & another; Joseph (Exparte Applicant); Musau (Interested Party) (Environment and Land Miscellaneous Application E006 of 2023) [2025] KEELC 4119 (KLR)

Environment and Land Court
30 May 2025
1,635 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court reinstated a land case dismissed after the litigant missed an online hearing due to phone battery and internet problems, confirming courts forgive honest technical glitches.

What this practically means

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Executive summary

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The Plaintiff/Applicant, Stephen Kioko Joseph, moved the court by Notice of Motion dated 16th October, 2022 seeking variation, review or setting aside of the orders of 13th June, 2024 dismissing his matter, and reinstatement of his Notice of Motion dated 27th February, 2024, by which he sought leave to commence judicial review proceedings concerning what he described as his family's ancestral land. He explained that he was acting in person, could not be admitted to the online court session until around 2.00 pm, and that his phone's power was exhausted with no electricity in Kilungu due to bad weather; he learned of the dismissal only on visiting court on 10th July, 2024. The Interested Party opposed the application, contending he was never served with the dismissed application, that reinstatement would violate natural justice under Article 50(1), and that the claim duplicated Makueni ELC No. E022 of 2021 filed by the Applicant's father and brother, contrary to Section 6 of the Civil Procedure Act. The court framed two issues: whether the Applicant demonstrated merit in setting aside the dismissal order, and whether the dismissed application should be reinstated. Relying on Order 12 Rules 1 and 7 of the Civil Procedure Rules, the overriding objective in the Civil Procedure Act, and authorities including CMC Holdings Ltd v James Mumo Nzioki, Ivita v Kyumbu, Essanji & Another v Solanki and Shah v Mbogo, the court held that the Applicant's explanation of technical difficulties was a reasonable excuse for non-attendance. The application was allowed as prayed, the dismissal was set aside and the application dated 27th February, 2024 was reinstated, with costs in the cause.

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 13th June, 2024
  2. 2.Whether the dismissed Notice of Motion dated 27th February, 2024 should be reinstated

Key legal issues

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01

Whether the court should set aside its order of dismissal for non-attendance and reinstate the dismissed application

Holding

The Applicant's explanation for non-attendance (technical difficulties accessing the online court platform, and his phone's power being exhausted) was reasonable; the application for reinstatement was therefore allowed in full

Reasoning

Order 12 Rule 7 of the Civil Procedure Rules gives the court discretion to set aside a dismissal upon such terms as may be just. Guided by the overriding objective in Sections 1A, 1B and 3A of the Civil Procedure Act, and authorities holding that the discretion exists to spare litigants injustice from excusable mistake, the court found the Applicant's technical difficulties excusable and his willingness to prosecute the matter genuine. The Interested Party's objections on service and parallel litigation did not persuade the court.

p. 4

Legal principles established

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  • The discretion to set aside an ex parte order or dismissal exists to prevent injustice to a litigant who demonstrates an excusable mistake, inadvertence, accident or error
  • The test for delay is whether it is prolonged and inexcusable, and whether justice can still be done despite the delay
  • The substance of disputes should ordinarily be decided on their merits; errors and lapses should not necessarily debar a litigant
  • The court's discretion to set aside is to avoid injustice from accident, inadvertence or excusable mistake, not to assist a person who deliberately obstructs or delays the course of justice

Court orders

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  1. 1.The orders issued on 13th June, 2024 dismissing the matter are set aside
  2. 2.The Notice of Motion application dated 27th February, 2024 is reinstated for hearing and determination on merit
  3. 3.Costs in the cause

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Article 159 of the Constitution; Sections 1A, 1B and 3A of the Civil Procedure Act; Order 12 Rule 7 and Order 51 Rule 1 of the Civil Procedure Rules

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 his part when the matter was dismissed is reasonable. He has therefore demonstrated merit in the application. Consequently, I allow the application as prayed. It is so ordered.
p. 4Disposition - setting aside dismissal and reinstating the application
Where under this Order judgment has been entered or the suit has been dismissed, the court, on application, may set aside or vary the judgment or order upon such terms as may be just.
p. 3Statutory basis of discretion - Order 12 Rule 7 of the Civil Procedure Rules
It would in our mind not be a proper use of such a discretion if the Court turns its back to a litigant who clearly demonstrates such an excusable mistake, inadvertence, accident or error.
p. 4Discretion to set aside ex parte orders - avoiding injustice
The overriding objective under the Civil Procedure Act is to facilitate the just, expeditious, proportionate and afiordable resolution of civil disputes.
p. 4Overriding objective of civil litigation

Issues in the judgment

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minor

The names of the Respondents and the Interested Party are not disclosed anywhere in the judgment; only the Ex-parte Applicant (Stephen Kioko Joseph) is named.

minor

The judgment does not state the suit's case number or the official citation, and refers to a chamber summons filed on 14th April, 2023 that is not otherwise explained in the chronology.

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, "Republic v Deputy County Commissioner, Kilungu Sub-County & another; Joseph (Exparte Applicant); Musau (Interested Party) (Environment and Land Miscellaneous Application E006 of 2023) [2025] KEELC 4119 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4119/eng@2025-05-30

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