The Environment and Land Court in Isiolo has set aside a decision that dismissed a long-running land dispute after a virtual hearing was disrupted by a brief power outage, ruling that litigants should not lose their right to be heard due to technological failures beyond their control.
The dispute in Isiolo CMELC No. 4 of 2015, between Isaack Godana Boru (Appellant) and Samson Mburu alias Mzunguko (Respondent), had been scheduled for further hearing on 25 November 2025 when the trial court called out the matter but received no response from either party.
The magistrate dismissed the suit for non-attendance under Order 12 Rule 3 of the Civil Procedure Rules.
At the same time, the court noted that the case was an old matter and was dismissed with no orders as to costs.
Court Rules Power Outages, Cannot Justify Dismissing Cases in a Virtual Hearing
Following the dismissal, the appellant moved to court the same day seeking review and reinstatement of the suit, arguing that his lawyer had been present during the virtual session but was disconnected due to a sudden power outage.
The plaintiff’s advocate maintained that she had already joined the session and was addressing the court when a brief power outage caused the connection to drop.
By the time she reconnected using her phone, the suit had already been dismissed.
However, the trial court dismissed the application for reinstatement on January 30, 2026, holding that the appellant had failed to demonstrate sufficient cause.
The magistrate also cited delays in the matter and lack of diligence in prosecuting the suit.
Aggrieved by the ruling, the appellant filed an appeal before the Environment and Land Court in Isiolo.
Court Clarifies Application of Order 12 Rule 3
In its judgment delivered on June 19, 2026, the appellate court found that the trial magistrate misapplied Order 12 Rule 3 of the Civil Procedure Rules, noting that the provision applies only where a defendant attends court and does not admit the claim—circumstances that did not exist in the case.
“To my mind, the invocation and application of Order 12 Rule 3 of the Civil Procedure Rules, 2010, clearly denotes improper exercise of discretion. It is my humble position that the Learned Trial Magistrate misapprehended the import and tenor of the named provisions of the law. The invocation of the same denotes a clear error of principle,” the judge ruled.
The court reproduced Order 12 Rule 3 as follows:
When only defendant attends [Order 12, Rule 3]
(1) If on the day fixed for hearing, after the suit has been called on for hearing outside the court, only the defendant attends and he admits no part of the claim, the suit shall be dismissed except for good cause to be recorded by the court.
(2) If the defendant admits any part of the claim, the court shall give judgment against the defendant upon such admission and shall dismiss the suit so far as it relates to the remainder except for good cause to be recorded by the court.
(3) If the defendant has counterclaimed, he may prove his counterclaim so far as the burden of proof lies on him.
Also Read: Court Delivers Landmark Ruling on Compensation Limits for Sacked Employees
Court Rules Case Should Have Proceeded to Judgment on Record
Justice Oguttu Mboya held that the suit had already been partly-heard, with the appellant having testified and been cross-examined, and therefore could not have been dismissed for non-attendance.
The proper course, the court held, would have been to close the case and proceed to judgment based on the evidence already on record.
The judge further found that the trial court failed to properly consider the explanation regarding the virtual hearing interruption, noting that counsel had acted promptly by filing an application for reinstatement on the same day of dismissal.
He also noted that the lower court had failed to appreciate the explanation regarding the technological interruption and had wrongly attributed delays to the Plaintiff, despite the record showing that related proceedings had contributed to the slow pace of the case.
“From the foregoing, I am duly persuaded that the Learned Trial Magistrate did not properly and judiciously exercise her discretion. On the contrary, I find and hold that the Learned Trial Magistrate failed to take into account material issue[s] which were pertinent in assessing the bona fides of the application beforehand. In addition, the Learned Trial Magistrate took into account extraneous issues, including the delay in the hearing of the matter, which was attributed to the Appellant, albeit without regard to the record before the court.”
“Having reviewed the record, I have pointed out that the Appellant has clearly demonstrated that the discretion was not properly exercised. To this end, I have come to the conclusion that the Learned Trial Magistrate, with respect, misapprehended the provision[s] of the law that was deployed; and thereby committed an error of principle.”
Also Read: Lady Justice Lydia Achode: From Kericho Magistrate to Court of Appeal Judge
Justice Mboya added that land disputes should, as far as possible, be determined on their merits rather than terminated through procedural shortcuts.
The appellate court therefore allowed the appeal, set aside the dismissal orders of November 25, 2025 and the ruling of 30 January 2026, and reinstated the suit for hearing and determination on its merits.
The matter will now be heard before a different magistrate and handled on a priority basis due to its age.
The court also awarded costs of the appeal to the appellant, to be taxed in default of agreement.
Follow our WhatsApp Channel and X Account for real-time news updates
