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ELCDismissedNot stated in the judgment

Makongo & another v Musinde & another (Environment and Land Case 400 of 2014) [2026] KEELC 3909 (KLR)

Environment and Land Court (court name not expressly stated in the judgment; delivered at Kakamega)
17 June 2026
481 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed an application to set aside virtual hearing orders, ruling that claims of being denied entry to online hearings can amount to abuse of process.

What this practically means

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Executive summary

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The applicants, through a notice of motion dated 7th October 2025 supported by an affidavit sworn by their advocate Andrew Masibayi Murunga, sought to set aside the proceedings and orders made on 24th September 2025 and to reinstate their application dated 26th June 2025 for hearing on merits, with leave for the respondent to file a response, plus costs. The basis of the application was that on 24th September 2025 counsel was ready to prosecute the application but was not admitted into the court's virtual platform, and that failure to reinstate would condemn the applicants unheard. No response was filed. The court identified a single issue: whether the applicant deserved the orders sought. It held that it has power and discretion under Order 51 Rule 15 to set aside ex parte orders, to be exercised judiciously. On the facts, the court found the counsel's assertion misleading: admission to the court's virtual platform is automatic and the court does not admit parties or counsel; attendees need only log in through a publicly available link, and no advocate or litigant sought admission on the date in question. The record further showed that on 24th September 2025 the court directed parties to file and exchange written submissions within 21 days and slated mention for 19th January 2026; it did not dismiss the application dated 26th June 2025, which remains unprosecuted. Consequently, the motion was found unnecessary and an abuse of the court process and was dismissed in its entirety, with the court pronouncing 'It is so ordered.' No separate costs order was made.

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 deserves the orders sought in the notice of motion dated 7th October 2025

Key legal issues

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01

Whether the applicant deserved orders setting aside the proceedings and orders of 24th September 2025 and reinstating the application dated 26th June 2025

Holding

The application was dismissed as unnecessary and an abuse of the court process

Reasoning

The applicant's advocate claimed he was not admitted to the court's virtual platform on 24th September 2025, but the court found this misleading since admission to its virtual platform is automatic and counsel merely needed to log in through a public link. Further, the court did not dismiss the application dated 26th June 2025; it ordered filing and exchange of submissions and slated a mention for 19th January 2026. That application remains unprosecuted, so there was nothing to reinstate.

p. 2

Legal principles established

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  • The court has power and discretion under Order 51 Rule 15 to set aside ex parte orders, to be exercised judiciously
  • Applications that are unnecessary and without factual foundation constitute an abuse of the court process and will be dismissed

Court orders

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  1. 1.The notice of motion dated 7th October 2025 is dismissed

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Order 51 Rule 15 of the Civil Procedure Rules (power to set aside ex parte orders)

Relief refused

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Setting aside the proceedings and orders made on 24/09/2025 and reinstating the application dated 26th June 2025 for hearing on merits with leave to the respondent to file a response

The court found the assertion that counsel was denied admission to the virtual platform misleading, as admission is automatic, and noted that the court did not dismiss the application dated 26th June 2025, which remains unprosecuted; the application was therefore unnecessary and an abuse of process

p. 2

Costs of the application

The application having been dismissed, no costs order in the applicant's favour was made; no express costs order appears in the final orders

Costs

No costs order made; the court simply dismissed the application and stated 'It is so ordered.'

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.

This court has power and discretion under the provisions of 0rder 51 Rule 15 to set aside ex parte orders. Such discretion ought to be exercised judiciously.
p. 2Discretion to set aside ex parte orders
For the above reasons, the application dated 7th October 2025 was unnecessary and the same is an abuse of the court process. The same is hereby dismissed.
p. 2Abuse of court process - final orders
It is so ordered.
p. 2Disposition

Issues in the judgment

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minor

The court and the case number are not stated anywhere in the judgment; only the delivery venue 'AT KAKAMEGA' and the judge's name appear

minor

The judgment date reads 17th June 2026 while the proceedings concern directions given on 24th September 2025 with a mention slated for 19th January 2026; no mention outcome is recorded before the judgment of 2026

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, "Makongo & another v Musinde & another (Environment and Land Case 400 of 2014) [2026] KEELC 3909 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3909/eng@2026-06-17

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