Mugo v Michael (Environment & Land Case 138 of 2018) [2025] KEELC 4239 (KLR)
The bottom line
#A Kenyan court reinstated a land case dismissed after the lawyer left the firm without handover, confirming mistakes by counsel shouldn't cost litigants their day in court.
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 Court should exercise its discretion to set aside the orders issued on 25/04/2022 dismissing the Applicant's Application dated 24/08/2021 for want of prosecution/non-attendance
- 2.Whether the Applicant has demonstrated reasonable grounds for reinstatement and whether the Respondent will suffer prejudice if the Application is reinstated
Key legal issues
#Whether the applicant established a reasonable excuse for non-attendance warranting reinstatement under Order 12 Rule 7
The applicant established a reasonable excuse - counsel handling the matter left the firm without a proper handover, causing a communication breakdown; the non-attendance was not deliberate and the unopposed respondent would suffer no prejudice.
The court noted that though the application was unopposed, it had to satisfy itself that a case for reinstatement was established under Order 12 Rule 7. Applying Shah v Mbogo and Belinda Murai v Amoi Wainaina, the discretion is meant to avoid injustice from accident, inadvertence or excusable mistake, and to deny a litigant a hearing should be the last resort. Counsel's departure from the firm without proper handover was an excusable mistake, not a deliberate attempt to obstruct justice, and any prejudice to the respondent can be cured by costs.
The primacy of the right to a hearing under Article 50 of the Constitution
The overriding objective of civil procedure is substantive justice, informed by the constitutional right to a hearing under Article 50, which the court is obligated to safeguard.
The court grounded its exercise of discretion in the constitutional framework: the overriding objective of the constitutional and statutory regime on civil procedure is to achieve substantive justice. Article 50 secures the right to a hearing, and the court is obliged to protect that right. Mistakes by counsel, absent fraud or deliberate obstruction, should be rectified rather than visited on the innocent litigant.
Legal principles established
#- The discretion to set aside an ex parte judgment or order exists to avoid injustice from accident, inadvertence or excusable mistake, not to assist deliberate obstruction of justice.
- An innocent litigant should not be shut out of justice because of counsel's negligence where the interests of justice so dictate.
Court orders
#- 1.Prayer 2 allowed as prayed - the order of 25th April 2022 dismissing the Applicant's Application dated 24th August 2021 for want of prosecution and/or non-attendance is set aside and the suit reinstated
- 2.Prayer 3 allowed on condition that the Applicant pays the requisite fees and the Application be set down for hearing on priority basis
- 3.Mention on 30/06/2025 for directions on the Notice of Motion Application dated 24/08/2021
- 4.Costs in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 63E of the Civil Procedure Act and Order 12 Rule 7 of the Civil Procedure Rules
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.
the Court's discretion to set aside an ex-parte Judgment is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but not to assist a person who has deliberately sought (whether by evasion or otherwise) to obstruct or delay the cause of justice.
In light of this, I am of the view that there is no inconvenience to be suffered by the Respondent as a result of setting aside the orders and proceedings of 25/04/2022 and if need arises then the Respondent can be adequately remedied through an award of costs.
Consequently, it is this Court's finding that the Applicant herein has established that he had a reasonable excuse for non-attendance on the 25/04/2022 when this matter came up for hearing.
In the light of the aforesaid, the Notice of Motion Application dated 24/11/2022, is allowed in the following terms:
Issues in the judgment
#The case number and full names of the parties are not stated anywhere in the judgment.
The judgment misdescribes the application as seeking to admit a 'Chamber Summons dated 22.04.2022' and refers inconsistently to reinstating 'the suit' versus an 'Application' dismissed on 25/04/2022.
Citation errors in authorities cited, e.g. 'Wanjiku Kamau Versus Tabitha Kamau & 3 Others 2014 EKR' and 'Lochab Bros Ltd ... 203 EKLR' - years/citations appear garbled.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mugo v Michael (Environment & Land Case 138 of 2018) [2025] KEELC 4239 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4239/eng@2025-06-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.