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ELCPartially AllowedThika MC ELC Appeal (Memorandum of Appeal dated 13/06/2025) arising from Thika MC ELC No. 64 of 2018

Oduori & another v Gichira & another (Environment and Land Appeal E065 of 2025) [2026] KEELC 3765 (KLR)

Environment and Land Court
16 June 2026
2,921 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court at Thika reinstated a land suit dismissed after the plaintiff's lawyer missed a hearing, ruling litigants shouldn't pay for counsel's innocent mistakes.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Thika against a ruling of Hon. Dr. Victor Wakumile, CM, delivered on 15/05/2025 in Thika MC ELC No. 64 of 2018, declining to review and reinstate the appellants' suit, which had been dismissed for want of prosecution on 27/08/2024 when their counsel was absent while the court was on transfer. The appellants, plaintiffs in a 2018 land dispute, argued that punishing litigants for counsel's inadvertence violated Articles 48, 50 and 159(2)(d) of the Constitution, and that the refusal to summon the County Surveyor - whose evidence was relevant to the respondent's own claim of a fraudulent or erroneous subdivision - shut out evidence going to the root of the dispute. The 1st respondent opposed the appeal as an abuse of process by indolent litigants who were duly served and stamped hearing notices, relying on authorities requiring proof of error apparent on the face of the record for review and against indulging parties who take the judicial system for a ride. Framing two issues - whether the trial court properly exercised its discretion, and whether it violated the appellants' constitutional rights - Mogeni J allowed the appeal. Relying on Salat, Shah v Mbogo, Nuru Ruga Ali and Obaga, the court found nothing to show the non-attendance was wilful and held that no substantial and compelling circumstances justified the draconian shut-out. The ruling of 15/05/2025 and the dismissal of 27/08/2024 were set aside; the Notice of Motion dated 10/12/2024 was allowed; the matter was remitted for hearing on merit before a different magistrate; and each party was ordered to bear its own costs.

Questions the Court framed

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

  1. 1.Whether the trial Court properly exercised its discretion in declining to reopen the Appellants' case following its dismissal for want of prosecution on 27th August 2024
  2. 2.Whether in so doing, the trial Court violated the Appellants' constitutional rights to a fair hearing and access to justice as enshrined under Articles 48, 50 and 159(2)(d) of the Constitution of Kenya, 2010

Key legal issues

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01

Exercise of discretion in declining to reopen the case

Holding

The trial court misdirected itself; the appellants' non-attendance was not wilful and justice favoured reopening the suit

Reasoning

The court found the non-attendance on 27/08/2024 was occasioned by counsel's inadvertent absence while the court was on transfer and issuing alternative dates. A suit prosecuted since 2018, with PW1 having testified, could not be characterised as abandoned. The trial court relied on stamped hearing notices but made no finding of personal culpability of the litigants, so its discretion was improperly exercised.

p. 5
02

Constitutional rights to fair hearing and access to justice

Holding

The dismissal and refusal to reinstate violated Articles 48, 50 and 159(2)(d); no substantial and compelling circumstances justified the shut-out

Reasoning

Article 159(2)(d) enjoins courts to administer justice without undue regard to procedural technicalities. The right to a fair hearing is a fundamental constitutional guarantee, not a mere statutory privilege. The respondent's authorities addressed wilful and inexcusable conduct, which the record did not establish. Denying evidence on the alleged erroneous subdivision would shut out evidence going to the root of the dispute.

p. 5
03

Summoning the County Surveyor

Holding

The prayer to summon the County Surveyor speaks directly to substantive justice and should be ventilated at the hearing

Reasoning

The 1st Respondent's own defence raises a fraudulent or erroneous subdivision/misnumbering of the suit properties. The court held it would be incongruous to shut out evidence going to the very root of the dispute, linking this prayer to the constitutional right to be heard on the merits.

p. 6

Legal principles established

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  • Mistakes of Counsel should not be visited upon the party, provided the default was not wilful negligence
  • The discretion to set aside an ex parte order should avoid injustice from accident, inadvertence or excusable mistake, and should not favour a wilful defaulter
  • Courts should not apply ancillary procedural powers in a draconian manner so as to deny litigants access to court and fair hearing rights

Court orders

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  1. 1.The Ruling of Hon. Dr. Victor Wakumile, Chief Magistrate, delivered on 15/05/2025 in Thika MC ELC No. 64 of 2018, declining to reopen the Appellants' case, is hereby set aside
  2. 2.The Appellants' Notice of Motion dated 10/12/2024 is hereby allowed, and the dismissal order of 27/08/2024 is hereby set aside
  3. 3.The matter is remitted for hearing on merit before a different Magistrate of competent jurisdiction in the interest of justice and impartiality
  4. 4.Each party shall bear their own costs of this Appeal

The bench

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

majority

Wrote the judgment

On appeal from
Thika Chief Magistrate's Court (MC ELC)
Thika MC ELC No. 64 of 2018
Jurisdiction invoked
First appeal against a ruling in a review application under Order 43 Rule 1(x) of the Civil Procedure Rules

Relief refused

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Costs of the Appeal borne by the Respondent

The court instead ordered each party to bear their own costs despite the appeal succeeding

p. 6

Costs

Each party shall bear their own costs of this Appeal.

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.

It is now trite law that Courts exist to dispense substantive justice and not to serve as arenas for technicalities.
p. 5substantive justice over technicalities
There is nothing on the record to suggest that the Appellants' non-attendance was wilful.
p. 5inadvertent non-attendance by counsel
The 1st Respondent's own defence raises the issue of a fraudulent or erroneous subdivision, and it would be incongruous for this Court to shut out evidence that goes to the very root of the dispute.
p. 6County Surveyor evidence
The Ruling of Hon. Dr. Victor Wakumile, Chief Magistrate, delivered on 15/05/2025 in Thika MC ELC No. 64 of 2018, declining to reopen the Appellants' case, is hereby set aside.
p. 6final orders - ruling set aside
The Appellants' Notice of Motion dated 10/12/2024 is hereby allowed, and the dismissal order of 27/08/2024 is hereby set aside.
p. 6final orders - dismissal set aside
The matter is remitted for hearing on merit before a difierent Magistrate of competent jurisdiction in the interest of justice and impartiality.
p. 6final orders - remittal before a different magistrate
Each party shall bear their own costs of this Appeal.
p. 6final orders - costs

Issues in the judgment

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minor

The Notice of Motion seeking review is described inconsistently as dated 10/12/2024 in one passage and 10/12/2025 in another

minor

Directions on the appeal are dated 19/03/2026 and submissions dated 03/03/2026 and 16/03/2026, which appear chronologically inconsistent with a judgment delivered 16/06/2026 (submissions filed before directions)

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, "Oduori & another v Gichira & another (Environment and Land Appeal E065 of 2025) [2026] KEELC 3765 (KLR)", Case Analysis (2026). Thika MC ELC Appeal (Memorandum of Appeal dated 13/06/2025) arising from Thika MC ELC No. 64 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3765/eng@2026-06-16

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