Osieko & 2 others v Ogeso & 3 others (Environment and Land Miscellaneous Application E013 of 2025) [2026] KEELC 2095 (KLR)
The bottom line
#A Kenyan court reinstated a dismissed case because the litigants' lawyer's virtual court login failure shouldn't punish them, though the clients paid the costs.
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 application is merited as to cause the court to set aside its orders made on 7th July 2025 and reinstate the Applicants' application dated 12th May 2025 for hearing
- 2.Who should pay the costs of the application
Key legal issues
#Whether counsel's late admission to the virtual court session justified setting aside the dismissal for non-attendance
The application was allowed: the dismissal order of 7th July 2025 was set aside and the application dated 12th May 2025 reinstated for hearing on merits
The court found counsel's explanation of technical difficulties in being admitted to the Teams session 'somehow plausible' and, in the absence of independent verification either way, extended the benefit of the doubt. The dismissal had nothing to do with the Applicants, who had diligently instructed counsel. The application was made four days after the dismissal, which was not inordinate delay.
Whether there was inordinate delay in bringing the reinstatement application
No - the four-day period between dismissal (7th July 2025) and application (11th July 2025) did not constitute inordinate delay
The Respondents argued the application was brought after unexplained inordinate delay. The court compared the dates and found the interval did not constitute inordinate delay, and treated the counsel's error as an isolated mistake not to be visited on the client.
Whether the application offended Order 51 Rule 1 of the Civil Procedure Rules
The objection failed; the Respondents did not elaborate the alleged non-compliance and it would be a curable technicality
The Respondents asserted non-compliance with Order 51 Rule 1 but did not explain how the provision was offended. The court invoked Article 159(2)(d) of the Constitution as a cure for such technicality and declined to find the application frivolous, vexatious or an abuse of process.
Legal principles established
#- The power to reinstate an application dismissed for want of prosecution is discretionary and requires demonstration of good faith
- A litigant should not be punished for the sins or omissions of counsel where the litigant had no hand in the omissions
- Parties bear a responsibility to follow up on and prosecute their cases even when represented by counsel
- An unelaborated claim of procedural non-compliance is a curable technicality under Article 159(2)(d) of the Constitution
Court orders
#- 1.Prayers 2 and 3 of the Applicant's application are allowed: the order made on 7th July 2025 dismissing the Applicants' application dated 12th May 2025 for non-attendance is set aside
- 2.The Applicants' application dated 12th May 2025 is reinstated for hearing and determination on its merits
- 3.The Applicants shall bear the costs of the application
- 4.The application dated 12th May 2025 is fixed for hearing on 14th May 2026, with a Hearing Notice to issue by Ms. Opiyo, State Counsel
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 3A of the Civil Procedure Act (Cap 21), Order 12 rule 7 and Order 51 Rule 1 of the Civil Procedure Rules 2010
Relief refused
#Costs of the reinstatement application against the Respondents
The failure to attend court was attributable to the Applicants' own counsel, so the Applicants, not the Respondents, were ordered to bear costs
Costs
The applicant shall bear the costs of the application
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.
Accordingly, prayers 2 and 3 of the Applicant's application are hereby allowed. Since the failure to be in court at the right time was on the part of the applicant's counsel, the applicant shall bear the costs of the application.
The instant mistake, as an isolated case, is one of those errors of counsel that should not be visited on a client.
This calls for the system developers, and I have elsewhere previously given this advice to the relevant ofice in charge of the ICT, to improve the Teams Platform to include features that show, at a click, when and how a party attempted to log into the court session
Contrary to the argument made by the Respondents, this period does not constitute inordinate delay.
Issues in the judgment
#The judgment inconsistently records the time counsel logged into court, first as 8:58 AM then as 9:58 AM
The judgment states the court begins sessions at 08:30 AM and that counsel logged in twenty-eight minutes late, which is inconsistent with counsel's deposed log-in time of 8:58 AM (which would be 28 minutes late) versus the 9:58 AM figure stated later
The hearing date fixed (14th May 2026) predates the delivery of the ruling itself (9th April 2026 is before it, but the application dismissed was dated 12th May 2025 while proceedings on 7th July 2025 follow - internally coherent, though the fixed date is nearly a year away)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Osieko & 2 others v Ogeso & 3 others (Environment and Land Miscellaneous Application E013 of 2025) [2026] KEELC 2095 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2095/eng@2026-04-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.