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ELCPartially AllowedNot stated in the judgment

Osieko & 2 others v Ogeso & 3 others (Environment and Land Miscellaneous Application E013 of 2025) [2026] KEELC 2095 (KLR)

Environment and Land Court
9 April 2026
1,890 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Applicants, through their advocate Wilson Odhiambo Odhiambo, moved the court by Notice of Motion dated 11th July 2025 under Section 3A of the Civil Procedure Act and Orders 12 rule 7 and 51 rule 1 of the Civil Procedure Rules, seeking to set aside the court's order of 7th July 2025 dismissing their application dated 12th May 2025 for non-attendance, and to have that application reinstated for hearing on merits. Counsel explained that on 7th July 2025 he was delayed in being admitted to the virtual court session on Microsoft Teams, logging in before 9:00 AM but being admitted after the matter had been called out and dismissed. The Respondents opposed by a ground of opposition, contending the application offended Order 51 Rule 1, was brought after unexplained inordinate delay, and was frivolous and vexatious. The court framed one main issue: whether the application was merited. It noted its sessions start at 8:30 AM, found counsel's explanation inconsistent but 'somehow plausible', lamented the absence of independent verification data from the Teams Platform, and recommended ICT improvements to verify log-in attempts. Relying on Imbochi v Leopard Beach Resort & Spa, Habo Agencies Limited v Wilfred Odhiambo Musingo and Patrick Mutunga Mwilu v Mary Katua, the court held that counsel's isolated error should not be visited on the client, that the four-day interval was not inordinate delay, and that the Order 51 objection was an unelaborated technicality curable under Article 159(2)(d). Prayers 2 and 3 were allowed; the Applicants were ordered to bear the costs since counsel's fault caused the failure to attend, and the reinstated application was fixed for hearing on 14th May 2026.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 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. 2.Who should pay the costs of the application

Key legal issues

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01

Whether counsel's late admission to the virtual court session justified setting aside the dismissal for non-attendance

Holding

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

Reasoning

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.

p. 4
02

Whether there was inordinate delay in bringing the reinstatement application

Holding

No - the four-day period between dismissal (7th July 2025) and application (11th July 2025) did not constitute inordinate delay

Reasoning

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.

p. 4
03

Whether the application offended Order 51 Rule 1 of the Civil Procedure Rules

Holding

The objection failed; the Respondents did not elaborate the alleged non-compliance and it would be a curable technicality

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 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. 2.The Applicants' application dated 12th May 2025 is reinstated for hearing and determination on its merits
  3. 3.The Applicants shall bear the costs of the application
  4. 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

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

majority

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

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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

p. 4

Costs

The applicant shall bear the costs of the application

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.

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.
p. 4Disposition - setting aside dismissal order and costs
The instant mistake, as an isolated case, is one of those errors of counsel that should not be visited on a client.
p. 4Mistakes of counsel not visited on 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
p. 4Court's recommendation on virtual court platform verification features
Contrary to the argument made by the Respondents, this period does not constitute inordinate delay.
p. 4No inordinate delay

Issues in the judgment

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minor

The judgment inconsistently records the time counsel logged into court, first as 8:58 AM then as 9:58 AM

minor

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

minor

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

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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, "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.