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ELCPartially AllowedNotice of Motion dated 6th June 2025 (suit number not stated in the judgment)

Omar (Suing as the Secretary and on Behalf of All Members of Nasib Farm Limited) v Tatu & 2 others (Environment and Land Case Civil Suit 640 of 2014) [2026] KEELC 3140 (KLR)

Environment and Land Court
21 May 2026
1,694 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court reinstated a dismissed land suit because the plaintiff's witnesses had actually travelled to Nairobi, but gave only 60 days to prosecute it.

What this practically means

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Executive summary

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The applicant, the plaintiff in a land suit, moved the court by Notice of Motion dated 6th June 2025 seeking to vary or set aside the order of 9th June 2025 by Hon. Lady Justice Judy Omange dismissing the suit for non-attendance, and to have the suit reinstated for hearing on merit, with costs in the cause. The application was supported by affidavits of the plaintiff and three witnesses who deponed that they had travelled from Garissa to Nairobi for the hearing and that the failure to appear on the virtual platform was the advocate's fault in logging in late. The respondent opposed through grounds of opposition and a replying affidavit of its advocate Peter Amuga, asserting that the court had satisfied itself of non-attendance before dismissal and that the plaintiff had been indolent, with multiple prior adjournments. Counsel filed written submissions relying on Order 12 rule 7 of the Civil Procedure Rules and authorities including Mwangi S. Kimenyi (applicant) and Gitau Karonga and Joel Vs North & Son Ltd (respondent). The court framed a single issue: whether the ex parte orders of 9th June 2025 should be set aside. Applying Order 12 rule 7, sections 3A, 1A and 1B of the Civil Procedure Act, and the sufficient-cause test from CMC Holdings Ltd and Wachira Karani, the court found that although the transcript confirmed nobody was logged in at the time of dismissal, the presence of the witnesses in Nairobi and the absence of inordinate delay demonstrated sufficient cause. The court allowed the application, set aside the dismissal, reinstated the suit with a 60-day window to prosecute it failing which it would stand automatically dismissed with costs to the respondents, and awarded the costs of the Motion to the respondents.

Questions the Court framed

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

  1. 1.Whether the ex parte orders of 9th June 2025 (dismissal of the suit for non-attendance) should be set aside

Key legal issues

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01

Whether sufficient cause was shown to set aside the dismissal of the suit for non-attendance

Holding

The court held that sufficient cause was demonstrated: the plaintiff's witnesses had travelled from Garissa to Nairobi for the hearing, and the application was made without inordinate delay, so the dismissal order was set aside and the suit reinstated.

Reasoning

The court applied Order 12 rule 7 and the inherent jurisdiction under section 3A of the Civil Procedure Act, read with the overriding objective in sections 1A and 1B. Although the transcript confirmed nobody was logged in at dismissal, the presence of the witnesses in Nairobi evidenced a genuine desire to prosecute the land matter. Weighing the right to be heard under Article 50(1), the court found no deliberate indolence justifying condemnation unheard.

p. 4
02

Whether the court could interfere with a dismissal order made by another judge

Holding

The court held it had inherent powers to make orders necessary to meet the ends of justice notwithstanding the earlier dismissal order.

Reasoning

Relying on section 3A of the Civil Procedure Act and the overriding objective in sections 1A and 1B, the court reasoned that its inherent power to prevent injustice and abuse of process allowed it to revisit the dismissal. Substantive justice requires parties to be heard on merit rather than condemned unheard, as captured in Article 50(1) of the Constitution.

p. 3

Legal principles established

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  • The setting aside of ex parte orders is discretionary and the test is whether sufficient cause has been shown
  • The discretion to set aside is exercised to avoid injustice or hardship from accident, inadvertence or excusable mistake, not to assist deliberate obstruction
  • Sufficient cause is a question of fact with no universal formula

Court orders

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  1. 1.The order dismissing the suit for non-attendance issued on the 9th June 2025 by Hon Lady Justice Judy Omange is hereby set aside
  2. 2.The suit is reinstated and the Applicant shall fully prosecute the reinstated suit within the next 60 days from the date of the ruling, failure to which the suit will stand automatically dismissed for want of prosecution, with costs to the Respondents
  3. 3.The costs of the Motion are awarded to the Respondents

The bench

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

Wrote the judgment

Jurisdiction invoked
Order 12 rule 7 of the Civil Procedure Rules, 2010; sections 3A, 1A and 1B of the Civil Procedure Act; Articles 50(1) and 159 of the Constitution

Relief refused

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Costs of the application to be in the cause

The court awarded the costs of the Motion to the Respondents instead of leaving them in the cause as sought

p. 4

Costs

The costs of the Motion are awarded to the Respondents; if the reinstated suit is not prosecuted within 60 days, it will stand automatically dismissed for want of prosecution, with costs to the Respondents.

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.

The order dismissing the suit for non-attendance issued on the 9th June 2025 by Hon Lady Justice Judy Omange is hereby set aside.
p. 4final orders - setting aside dismissal
The suit is hereby reinstated and the Applicant shall fully prosecute the reinstated suit within the next 60 days from the date of this ruling, failure to which the suit will stand automatically dismissed for want of prosecution, with costs to the Respondents.
p. 4final orders - reinstatement with 60-day timeline
The costs of the Motion are awarded to the Respondents.
p. 4final orders - costs
It therefore follows that every person ought not to be shut out from accessing court or having his day in court.
p. 4access to justice and fair hearing
Suficient cause is thus the cause for which the defendant could not be blamed for his absence. Suficient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances in the case at hand.
p. 3sufficient cause - no universal formula

Issues in the judgment

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minor

The judgment does not state the case/suit number or the name of the respondent party; the caption is only identifiable through the motion date and deponents

minor

The deponent of the supporting affidavit is named 'Jared Nyaoke' while the applicant is referred to as 'the plaintifi'; the same name appears in the body rather than in a formal caption

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, "Omar (Suing as the Secretary and on Behalf of All Members of Nasib Farm Limited) v Tatu & 2 others (Environment and Land Case Civil Suit 640 of 2014) [2026] KEELC 3140 (KLR)", Case Analysis (2026). Notice of Motion dated 6th June 2025 (suit number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3140/eng@2026-05-21

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