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ELCPartially AllowedELC NO. E009 OF 2023 (O.S)

Gachema v Wambui (Environment and Land Case E009 of 2023) [2026] KEELC 3749 (KLR)

Environment and Land Court
16 June 2026
MOMOGENI
1,962 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 land court reinstated an adverse possession suit dismissed after a missed hearing, showing honest explanations of absence can save your case.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Thika on the Plaintiff/Applicant's Notice of Motion dated 26/02/2025 seeking to set aside orders of 25/02/2025 dismissing her suit, to reinstate the suit and the interim orders previously granted, and to have the matter listed for priority hearing. The underlying suit is a claim of adverse possession over land parcel Kiambaa/Karuri/T.1147, which the Applicant says she has occupied openly, continuously and as of right since 1987. The dismissal followed non-attendance at a hearing; the Applicant's Counsel explained that she sought an adjournment at the virtual call-over because the witness was indisposed, then travelled from Nairobi to Thika but arrived after the suit had been dismissed. The Respondent, who relies on her title deed to the parcel, opposed reinstatement, arguing the absence of medical evidence and a pattern of dilatory tactics. The court framed two issues: whether sufficient cause for reinstatement was established, and whether the Respondent would suffer prejudice incapable of compensation by costs. Relying on Order 12 Rule 7, the overriding objective in Sections 1A and 1B of the Civil Procedure Act, and the Shah v Mbogo, Patel and Salat authorities, the court found inadvertence rather than deliberate obstruction, and held that the respondent's title was itself the subject of the dispute. The court set aside the dismissal, reinstated the suit and all interim orders, fixed a mention for 20/07/2026, awarded the Respondent thrown-away costs of KES 40,000, and ordered the application's costs in the cause.

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 has established sufficient cause to warrant the setting aside of the dismissal orders and the reinstatement of the suit.
  2. 2.Whether the Respondent will suffer any prejudice that cannot be compensated by an award of costs if the suit is reinstated.

Key legal issues

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01

Sufficient cause for setting aside dismissal for non-attendance

Holding

Sufficient cause was established because Counsel appeared at the virtual call-over to intimate the witness's indisposition and the delay was inadvertent, not deliberate.

Reasoning

The court accepted that Counsel did appear at the virtual call-over to intimate the witness's indisposition and then travelled from Nairobi to Thika, arriving after the dismissal. Although no medical certificate was produced, the conduct did not amount to deliberate obstruction of justice. Exercising its discretion under Order 12 Rule 7 guided by the overriding objective, the court found inadvertence and excusable error sufficient.

p. 8
02

Prejudice to the Respondent if the suit is reinstated

Holding

Any prejudice from reinstatement can be adequately mitigated by an award of costs; the maxim that litigation must come to an end cannot suppress a triable issue involving a person's home.

Reasoning

The court held that the respondent's registered title is itself the subject of the dispute, so dismissing the suit would condemn the applicant unheard on her claim of occupation since 1987. The maxim that litigation must come to an end, though hallowed, must not be used to suppress a triable issue concerning a home of three decades; costs suffice to compensate the respondent.

p. 9

Legal principles established

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  • The power to set aside a dismissal for non-attendance is discretionary and is exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable error, but not to assist deliberate obstruction or delay.
  • Deviations from procedural rules are not always fatal where they cause no prejudice or miscarriage of justice; the focus should be on substantive justice.

Court orders

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  1. 1.The Order of this Court issued on the 25/2/2025 dismissing the suit is hereby set aside.
  2. 2.The Suit is hereby reinstated for hearing and determination on its merits.
  3. 3.All interim orders that were in force prior to the dismissal of the suit are hereby reinstated pending further directions from the Court.
  4. 4.The matter shall be mentioned on 20/07/2026 for setting up of a hearing date.
  5. 5.The Applicant to pay thrown away costs of Kesh 40,000 to the Respondent.
  6. 6.The costs of this application shall be in the cause.

The bench

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

MO
majority

Wrote the judgment

Jurisdiction invoked
Sections 1, 1A, 3 and 3A of the Civil Procedure Act; Order 12 Rule 7 of the Civil Procedure Rules; Articles 50(1) and 159(1)&(2) of the Constitution of Kenya

Relief refused

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Priority hearing of the suit

Instead of prioritising the hearing, the court directed a mention for setting a hearing date.

p. 10

Costs

The Applicant to pay thrown away costs of Kesh 40,000 to the Respondent; the costs of the application shall be in the cause.

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.

i) The Order of this Court issued on the 25/2/2025 dismissing the suit is hereby set aside. ii) The Suit is hereby reinstated for hearing and determination on its merits.
p. 10Final orders - setting aside dismissal and reinstating the suit
All interim orders that were in force prior to the dismissal of the suit are hereby reinstated pending further directions from the Court.
p. 10Reinstatement of interim orders
The Applicant to pay thrown away costs of Kesh 40,000 to the Respondent.
p. 10Costs of reinstatement
The main concern of the Court is to do justice between the parties, and the Court will not impose conditions which form a barrier to justice ... a suit should be adjudicated upon its merits rather than on technicalities.
p. 9Substantive justice over technicalities

Issues in the judgment

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minor

The judgment states the Respondent's counsel confirmed on 04/02/2026 that they would not file submissions, yet the application itself is dated 26/02/2025 and the ruling delivered on 16/06/2026; the date 04/02/2026 precedes the submissions dated 3/06/2025 referenced in the same paragraph, an apparent date inconsistency.

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, "Gachema v Wambui (Environment and Land Case E009 of 2023) [2026] KEELC 3749 (KLR)", Case Analysis (2026). ELC NO. E009 OF 2023 (O.S). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3749/eng@2026-06-16

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