https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4289

Khwatenge v Alusa (Land Case Appeal E015 of 2024) [2026] KEELC 4289 (KLR) (1 July 2026) (Ruling) Neutral citation: [2026] KEELC 4289 (KLR) Republic of Kenya In the Environment and Land Court at Bungoma Land Case Appeal E015 of 2024 AK Bor, J July 1, 2026 Between Philip Khwatenge Plaintiff and Flora Naswa Alusa Defendant Ruling 1.The Appellant filed the application dated 20/11/2025 seeking to have the consent order vide which the appeal was withdrawn set aside and to have the appeal reinstated for hearing and determination on its merits. He sought leave for Gwehona Advocates to take over conduct of the matter from H.P Wamalwa advocates. He also sought stay of execution of the judgment and decree issued in Webuye MCELC No. E027 of 2021 delivered on 26/3/2026. The other prayers sought were that in the event that the attached properties had been sold pursuant to the proclamation, an order be issued for the auctioneers and the Respondent to restitute the proceeds of the sale to the Appellant and for the purchased properties to be returned. 2.The application is premised on grounds that the Appellant’s erstwhile advocates, Ms H.P. Wamalwa entered into a consent with the Respondent’s advocate to withdraw the appeal without the instructions, authority and consent of the Appellant. The Appellant claimed that he became aware of the withdrawal when he conducted a search at the court registry. The other ground was that the Appellant had instructed auctioneers and the Appellant was apprehensive that he would suffer substantial loss if the execution continued. 3.The Appellant swore the affidavit in support of the application in which he deponed that he was the defendant in the suit before the trial court. Aggrieved by the decision made by the trial court, he instructed H.P Wamalwa Advocates to lodge an appeal. He deponed that he was always keen to prosecute the appeal and did not contemplate withdrawing it. That he learned of the withdrawal when he visited the court registry. He stated that he terminated the instructions to H.P Wamalwa Advocates and instructed a new firm of advocate. He maintained that he had an arguable appeal. 4.The Respondent filed grounds of opposition in which he contended that the application did not meet the threshold for setting aside a consent order. It was contended that stay of execution should not be granted because the Appellant was guilty of laches, judgment having been entered on 26/3/2024 following which costs had been assessed at Kshs. 127,700/=. 5.The application was canvassed through written submissions. It was the Appellant’s submission he had met the requirements for setting aside a dismissal order. The Appellant made submissions addressing the law on setting aside of a dismissal order, which may not apply to the present application seeking to set aside the order for the withdrawal of the appeal. He urged that he had provided a full satisfactory and unchallenged explanation that he did not instruct his former advocate to withdraw the appeal. He argued that the consent, which the advocate entered into without his authority, was a nullity. He was emphatic that the appeal was never withdrawn and urged that it was in a state of limbo. Regarding the limb of delay, he argued that he timeously filed the appeal and that if there was any delay then it was attributable to the advocate. He explained that he risked eviction and loss of his home if execution proceeded. 6.The Respondent submitted that the Appellant was indolent in prosecuting the appeal and that the court gave directions on 3/5/2025 to the effect that if the Appellant did not comply within 14 days, the appeal would stand dismissed. That after the appeal was withdrawn on 21/7/2025, the only outstanding issue was costs which would be taxed if there was no settlement. She maintained that the Appellant had not met the threshold for the setting aside of the consent. The Respondent also pointed out that no evidence has been placed before the court on the manner in which the Appellant gave instructions to his advocate. 7.The issue for determination is whether this court should set aside the consent vide which the appeal was withdrawn. It is helpful to look at the previous proceedings in this appeal. The memorandum of appeal drawn by H.P. Wamalwa Advocates was filed in April, 2024. The court wrote to the Appellant’s advocate in December, 2024 informing them that the appeal had been admitted and that he was required to compile and serve the record of appeal within 30 days. The record of appeal has not been filed to date. When the matter came up on 21/5/2025, the Appellant’s advocate told the court that they had previously indicated that they would withdraw the appeal but they had instructions to proceed with it. The court directed parties to file the record of appeal and appear before the judge on 3/7/2025. On 3/7/2025, the court granted the Appellant 14 days to compile, file and serve the record of appeal failing which the appeal would stand dismissed for want of prosecution. 8.On 21/7/2025, Mr. H.P. Wamalwa Advocate informed the court that his client wished to withdraw the appeal and he was to discuss the issue of costs with the Respondent’s advocate. The Appellant has not tendered any document or communication between him and his former advocate to support his assertion that his former advocate acted without instructions and the steps he took to address the grave issue of an advocate withdrawing an appeal without the client’s instructions. When the matter came upon on 2/10/2025, Ms. Imali Advocate appeared for the Respondent when the court was informed that no agreement had been reached on the costs. 9.The conduct of the Appellant does not demonstrate diligence in prosecuting the appeal. The Appellant has treated the serious issue of an advocate withdrawing his appeal without authority very casually creating doubt as to whether that happened. He did not disclose when he learned that the appeal had been withdrawn. He was indolent and only filed the present application when the execution process was set in motion. 10.The court declines to grant the orders sought dated 20/11/2025. The Respondent is awarded the costs of the application. DELIVERED VIRTUALLY AT BUNGOMA THIS 1ST DAY OF JULY 2026.K. BORJUDGEIn the Presence of:-Ms. Gwehona Imali for the AppellantMr. Washington Athung’ah for the RespondentCourt Assistants –Josephat Bett/Metrine