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ELCDismissedNot stated in the judgment as provided

John v Adawo (Environment and Land Appeal E027 of 2022) [2025] KEELC 7725 (KLR)

Environment and Land Court
4 November 2025
3,133 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This ruling of the Environment and Land Court (Nyagaka, J) determined an application dated 12th May 2025 by the Appellant seeking to set aside an order of dismissal issued on 24th April 2025 and to reinstate his application dated 4th April 2025 for hearing on merit. The application was brought under Sections 1A, 1B and 3A of the Civil Procedure Act and Orders 51 and 12 Rule 7 of the Civil Procedure Rules, on the ground that the Appellant's counsel was unable to address the court during a virtual hearing because his device's microphone malfunctioned. The Respondent opposed, contending the applicant had been persistently indolent, that the appeal itself was filed out of time without leave, that the Memorandum of Appeal was unsigned and thus a nullity, and that the 19-day delay in moving the court evidenced an afterthought. The court framed the main issue as whether the application was meritorious. It applied the settled principles that reinstatement is a discretionary remedy, that Article 159(2)(d) is not a refuge for transgressions, and that prejudice to the respondent must be weighed. It found the technological excuse foreseeable and unproven - counsel's online presence was not established, and the WhatsApp screenshots annexed (BDA 01) were uncommissioned and therefore inadmissible hearsay. Noting the appellant's history of non-compliance and that the unsigned Memorandum of Appeal was a nullity leaving no valid appeal to revive, the court dismissed the application with costs to the Respondent on 4th November 2025.

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's application dated 12th May, 2025 is meritorious
  2. 2.Who should bear the costs of the application

Key legal issues

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01

Whether the dismissal order of 24th April 2025 should be set aside and the application dated 4th April 2025 reinstated

Holding

The application for reinstatement failed; the dismissal stands and the application dated 12th May 2025 was dismissed with costs

Reasoning

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.

p. 6
02

Admissibility and evidential weight of uncommissioned annexures

Holding

The uncommissioned WhatsApp screenshots (BDA 01) were disregarded as inadmissible hearsay

Reasoning

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.

p. 3
03

Whether the court should consider the merits of the underlying appeal

Holding

The court restricted itself to the reinstatement application and did not determine the merits of the underlying application or appeal

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The application dated 12th May 2025 is dismissed
  2. 2.Costs of the application are awarded to the Respondent

The bench

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

majority

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

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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

p. 5

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

p. 6

Costs

The application is dismissed with costs to the Respondent

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.

'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...'
p. 4Reinstatement as discretionary remedy
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.
p. 5End of litigation and party indolence
That being so, the depositions about communication between the two counsel was at best mere inadmissible hearsay.
p. 6Inadmissibility of uncommissioned annexures
In view of the above authorities, consequently, the application is devoid of merit. It is dismissed with costs to the Respondent.
p. 6Disposition - dismissal of the reinstatement application with costs
It is so ordered.
p. 6Final orders

Issues in the judgment

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minor

Internal inconsistency in the date of the dismissed application - referred to as both 4th April 2025 and 4th May 2025 in the same judgment

minor

Internal inconsistency in the date of the virtual hearing - stated as both 24th April 2025 and 24th May 2025

minor

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

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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, "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.