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ELCAllowedNot stated in the judgment· [2026] KEELC 3438 (KLR)

Mitingi & 7 others v Diamond Trust Bank Kenya Limited & another (Environment and Land Case E007 of 2026) [2026] KEELC 3438 (KLR)

Environment and Land Court
19 May 2026
MNMwangi Njoroge
1,123 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan court reinstated a dismissed land case because a power outage, not any lawyer's fault, caused the missed virtual hearing.

What this practically means

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Executive summary

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The plaintiffs, by a Notice of Motion dated 18th February 2026 supported by the affidavit of Mr. Richard Otara, advocate, sought to set aside the orders made on 18th February 2026 dismissing their application dated 28th January 2026 for non-attendance, and to reinstate that application together with the interim orders of 30th January 2026. Counsel explained that a power outage in Malindi disconnected him from the virtual courtroom and that by the time he re-logged in, the application had already been mentioned and dismissed. The second defendant opposed, arguing that a consent order had been adopted as a judgment and substantially implemented, that the suit property had been fenced and structures cleared, that the plaintiffs were not beneficiaries under a Deed of Settlement dated 26th January 2026, and that the application had been overtaken by events, further asserting a careless and leisurely approach by the plaintiffs' counsel. The court confined itself to the reinstatement question and avoided the substance of the underlying application. Taking judicial notice of regular power outages and noting the absence of any evidence from the defendants controverting the outage, and that the reinstatement application was filed the same day as the dismissal, the court found no wrongdoing by counsel and held that where no party or counsel is proved at fault, dismissal orders should be set aside ex debito justitiae, with the effectiveness of the earlier interim orders taking a back seat. The court allowed the application, reinstated the dismissed application and interim orders, ordered costs in the cause, and directed a mention on 27th May 2026 for further directions.

Key legal issues

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01

Whether non-attendance occasioned by a power outage justifies setting aside an order of dismissal for want of attendance

Holding

Yes. The court took judicial notice of regular power loss and found no evidence that counsel was at fault, so the dismissal had to be set aside ex debito justitiae and the earlier application and interim orders reinstated.

Reasoning

Counsel deposed that a power outage in Malindi caused him to be disconnected from the virtual courtroom and that by the time he re-logged in, the application had been dismissed. The court took judicial notice that power loss has been happening regularly. The defendants produced no evidence controverting the outage. The application seeking reinstatement was filed the same day as the dismissal, corroborating counsel's account. Since neither party was at fault, blame could not be placed on counsel or his clients, and the effectiveness of the earlier interim orders was relegated to a back seat.

p. 3

Legal principles established

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  • Where none of the parties or their counsel has been proved liable for wrongdoing causing non-attendance, a dismissal order should be set aside as of right (ex debito justitiae).

Court orders

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  1. 1.Orders made on 18th February 2026 dismissing the Plaintiffs' application dated 28th January 2026 set aside
  2. 2.The Plaintiffs' application dated 28th January 2026 together with the interim orders of 30th January 2026 reinstated for hearing
  3. 3.Costs of the application be in the cause
  4. 4.Matter to be mentioned on 27th May 2026 for further directions as to hearing of the application dated 28th January 2026
Jurisdiction invoked
Inherent discretion of the Environment and Land Court to set aside its own dismissal orders

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, "Mitingi & 7 others v Diamond Trust Bank Kenya Limited & another (Environment and Land Case E007 of 2026) [2026] KEELC 3438 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3438/eng@2026-05-19

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