John v Adawo (Environment and Land Appeal E027 of 2022) [2025] KEELC 7725 (KLR)
The bottom line
#Kenya's Environment and Land Court refused to reinstate a dismissed case, ruling that claims of technical failures must be backed by properly certified evidence.
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 applicant's application dated 12th May, 2025 is meritorious
- 2.Who should bear the costs of the application
Key legal issues
#Whether the dismissal order of 24th April 2025 should be set aside and the application dated 4th April 2025 reinstated
The application for reinstatement failed; the dismissal stands and the application dated 12th May 2025 was dismissed with costs
The court held that reinstatement is discretionary and must be exercised judiciously. The applicant's counsel's claimed technological failure was foreseeable and unproven - it was not shown he was online when the matter was called, and the WhatsApp screenshots were uncommissioned and thus inadmissible hearsay. Given the applicant's history of persistent non-compliance, including an unsigned Memorandum of Appeal, and the absence of a valid appeal to reinstate, the discretion could not be exercised in his favour.
Admissibility and evidential weight of uncommissioned annexures
The uncommissioned WhatsApp screenshots (BDA 01) were disregarded as inadmissible hearsay
The annexed screenshots were not signed or stamped by the Commissioner for Oaths who commissioned the supporting affidavit, contrary to Rule 9 of the Oaths and Statutory Declarations Rules. The court therefore went beyond them in the interest of justice, and the depositions about communication between the two counsel amounted to mere inadmissible hearsay.
Whether the court should consider the merits of the underlying appeal
The court restricted itself to the reinstatement application and did not determine the merits of the underlying application or appeal
The respondent argued that the appeal was filed out of time without leave and was fatally defective. The court held that what was before it was only the reinstatement application, so it restricted itself to that, though it noted that the unsigned Memorandum of Appeal was a nullity, meaning there was no valid appeal to return to even if reinstatement were granted.
Legal principles established
#- Reinstatement of a suit dismissed for want of prosecution is a discretionary remedy, not a matter of right, and each case depends on its own circumstances
- Article 159(2)(d) of the Constitution is not a refuge for procedural transgressions; justice must balance the interests of both parties
- An unsigned document filed in court is of no avail to any party
- Uncommissioned screenshots annexed to an affidavit constitute inadmissible hearsay
Court orders
#- 1.The application dated 12th May 2025 is dismissed
- 2.Costs of the application are awarded to the Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Not stated
- Not stated
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act as read with Order 51 and Order 12 Rule 7 of the Civil Procedure Rules, 2010
Relief refused
#Setting aside the order of dismissal issued on 24th April 2025
The explanation of a technological failure was not credible or supported by admissible evidence, and the applicant has been persistently non-compliant and indolent throughout the matter
Reinstatement of the application dated 4th April 2025 for hearing on merit
The Memorandum of Appeal was unsigned and therefore a nullity, so there was no valid appeal to revert to even if the dismissal were set aside
Costs
The application is dismissed with costs to the Respondent
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.
'reinstatement of a suit dismissed for want of prosecution is a discretionary remedy and not as a matter of right. In any event each case depends on its own circumstances...'
This is a matter where the appellant seems to be in noncompliance of each step required at each time. The court wonders how long it can indulge him. Litigation must come to an end at one time.
That being so, the depositions about communication between the two counsel was at best mere inadmissible hearsay.
In view of the above authorities, consequently, the application is devoid of merit. It is dismissed with costs to the Respondent.
It is so ordered.
Issues in the judgment
#Internal inconsistency in the date of the dismissed application - referred to as both 4th April 2025 and 4th May 2025 in the same judgment
Internal inconsistency in the date of the virtual hearing - stated as both 24th April 2025 and 24th May 2025
The judgment refers to this as a Ruling but characterises the dismissal as being for non-attendance rather than want of prosecution, contrary to the applicant's framing
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John v Adawo (Environment and Land Appeal E027 of 2022) [2025] KEELC 7725 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7725/eng@2025-11-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.