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ELCAllowedNot stated in judgment

Ndisii v Musembi & another (Environment and Land Case 24 of 2019) [2025] KEELC 7392 (KLR)

Environment and Land Court
30 October 2025
EOE. O. Obaga
749 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 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 for want of prosecution, prioritising the right to a fair hearing over procedural delay.

What this practically means

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Executive summary

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This is a ruling on a notice of motion dated 28th May, 2025 in which the Plaintiff/Applicant sought to set aside an order of 29th May, 2024 dismissing her suit for want of prosecution following non-attendance at a hearing. The Applicant contended that her advocate had logged into the court's virtual session intending to seek an adjournment, not knowing the hearing would proceed physically, and that the reason for non-attendance was excusable and caused no prejudice to the Defendants, who retained an undismmissed counterclaim. The Defendants opposed through grounds of opposition, characterising the application as made in bad faith, defective and not meeting the threshold for setting aside. Only the Applicant filed submissions, relying on Shah v Mbogo and Mbaki v Macharia on the court's discretion to relieve against inadvertence and to do justice between the parties. The court framed a single issue: whether the Applicant met the threshold for setting aside the dismissal order. It found no evidence of service of the hearing notice on the Applicant's advocates, nor that counsel actually logged into the virtual session, observing that had he done so he would not have waited a year to seek reinstatement. Nevertheless, noting that the order did not dismiss the counterclaim, which therefore remained alive, and to give both parties an equal opportunity, the court reluctantly allowed the application, set aside the dismissal of 29th May, 2024, granted unconditional leave to file a reply to defence and defence to counterclaim within 7 days, and ordered costs of the application to be 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 Applicant has met the threshold for setting aside the orders made on 29th May, 2024 dismissing the suit for want of prosecution

Key legal issues

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01

Whether the threshold for setting aside an order dismissing a suit for want of prosecution was met

Holding

The court reluctantly allowed the setting aside, noting the counterclaim was not dismissed and granting the parties an equal opportunity, despite the delay and doubts about the Applicant's explanation.

Reasoning

The court found no evidence that counsel for the Applicant was served with a hearing notice or that he logged into the virtual session as alleged, noting that had he done so, he would not have waited a year to seek reinstatement. The truth was that counsel learned of the dismissal too late. Notwithstanding the delay, because the counterclaim remained alive and undetermined, the court set aside the dismissal to give both parties an equal opportunity to be heard.

p. 2
02

Whether the counterclaim was dismissed by the order of 29th May, 2024

Holding

The dismissal order did not specify whether the counterclaim was dismissed, and it therefore remains alive.

Reasoning

The order dismissing the suit for want of prosecution did not mention the counterclaim. Since neither counsel nor the parties attended when the dismissal was made, the order's silence on the counterclaim means the counterclaim survives and is still before the court.

p. 2

Legal principles established

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  • The discretion to set aside a dismissal is exercised to avoid injustice from accident, inadvertence or excusable mistake, not to assist deliberate obstruction or delay

Court orders

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  1. 1.The order of 29th May, 2024 dismissing the Applicant's suit for want of prosecution is set aside
  2. 2.Unconditional leave granted to the Applicant to file a reply to defence and defence to counterclaim within 7 days
  3. 3.Costs of the application shall be costs in the cause

The bench

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

EO
majority

Wrote the judgment

Jurisdiction invoked
Inherent discretion to set aside dismissal orders for want of prosecution under civil procedure

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.

I therefore set aside the order of 29th May, 2024 dismissing the Applicant’s suit for want of prosecution and grant unconditional leave to the Applicant to file a reply to defence and defence to counterclaim within 7 days from today. The costs of this application shall be costs in the cause.
p. 2Final orders - reinstatement and leave
The order did not specify whether the counterclaim was dismissed as well. This being the case, it will appear that the counterclaim is still alive.
p. 2Status of counterclaim
If indeed he had logged in as he alleges, it would not have taken him a year to file an application for reinstatement of the suit.
p. 2Credibility of explanation for non-attendance

Issues in the judgment

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minor

The judgment inconsistently refers to the applicant's counsel both as 'her advocate' (suggesting the applicant appeared) and as 'Mr. Kasyoka', and the applicant's pleadings misstate the dismissal date as 29th April, 2024 when it was 29th May, 2024.

minor

The judgment does not disclose the case title, case number, or the names of the parties, referring only to 'Plaintiff/Applicant' and 'Defendants/Respondents'.

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, "Ndisii v Musembi & another (Environment and Land Case 24 of 2019) [2025] KEELC 7392 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7392/eng@2025-10-30

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