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ELCPartially AllowedNot stated in the judgment (appeal against judgment in MCELC E236 of 2022; related suit Milimani MCELC 263/2022)· [2026] KEELC 4437 (KLR)

Kahariri v Ndura & 2 others (Land Case Appeal E042 of 2026) [2026] KEELC 4437 (KLR)

Environment and Land Court
13 July 2026
MKMOHAMMED N. KULLOW
2,074 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi court reinstated a dismissed application despite no excuse for absence, but refused to stop eviction in the meantime.

What this practically means

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Executive summary

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The Applicant, dissatisfied with the judgment in MCELC E236 of 2022, lodged an appeal and filed a Notice of Motion dated 13th March 2026 seeking a stay of the judgment and consequential orders in Milimani MCELC 263/2022. That application was dismissed for non-attendance after a hearing which the Applicant, though responsible for serving the hearing notice on the 1st Respondent, failed to attend. By a Notice of Motion dated 1st May 2026, the Applicant sought setting aside of the dismissal orders, reinstatement of the application, interim stay and injunctive relief against eviction from Nairobi/Block 136/5659, and leave for the firm of Danstan Omari & Company Advocates to come on record after judgment. The 1st Respondent opposed, arguing deliberate conduct, no sufficient reason for non-attendance, and inordinate delay. The court framed a single issue: whether the reinstatement application was merited. It acknowledged the Applicant failed to demonstrate sufficient cause for non-attendance, per Wachira Karani and Shah v Mbogo, but invoked the overriding objective (Sections 1A, 1B and 3A of the Civil Procedure Act) and Article 159(2)(d) of the Constitution, finding goodwill to prosecute the matter, a short delay, and no prejudice to the Respondent. The court set aside the dismissal orders, reinstated the 13th March 2026 application for hearing within 14 days (failing which it stands dismissed), granted leave to the Applicant's advocates to come on record, and ordered the Applicant to bear the costs. The interim stay and injunction prayers were not granted, as reinstatement does not operate as a stay.

Key legal issues

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Whether the dismissed application dated 13th March 2026 should be reinstated

Holding

Reinstatement allowed despite lack of demonstrated sufficient cause, invoking the overriding objective, Section 3A and Article 159(2)(d)

Reasoning

The applicant had knowledge of the hearing date and gave no specific reason for non-attendance, so failed the sufficient-cause threshold in Wachira Karani. However, the court found goodwill to prosecute the matter: the applicant himself served the hearing notice, the delay in reinstating was short and attributable to filing the wrong application, and the 1st Respondent would not be prejudiced. In the interest of substantive justice the dismissal was set aside, with a 14-day timeline and costs to the applicant.

p. 4

Legal principles established

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  • An applicant seeking reinstatement of a suit or application dismissed for non-attendance must demonstrate sufficient cause for the absence
  • The court may nonetheless reinstate under the overriding objective and Article 159(2)(d) where there is demonstrated goodwill to prosecute the matter and no prejudice to the other side

Court orders

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  1. 1.The firm of Danstan Omari and Company Advocates granted leave to come on record for the applicant
  2. 2.The orders of the court issued on the 25th March 2026 set aside and the Notice of Motion application dated 13th March 2026 reinstated for hearing
  3. 3.The Applicant to set down the application dated 13th March 2026 for hearing within the next 14 days failing which it will stand dismissed
  4. 4.The applicant to bear the costs of the Application
Jurisdiction invoked
Order 12 Rule 7 of the Civil Procedure Rules; Sections 1A, 1B and 3A of the Civil Procedure Act; Article 159(2)(d) of the Constitution

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, "Kahariri v Ndura & 2 others (Land Case Appeal E042 of 2026) [2026] KEELC 4437 (KLR)", Case Analysis (2026). Not stated in the judgment (appeal against judgment in MCELC E236 of 2022; related suit Milimani MCELC 263/2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4437/eng@2026-07-13

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