https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4414

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MAKUENI** **ELC APPEAL NO. E019 OF 2022** **FRANCIS MUISYO MAITHA …………………...APPELLANT/APPLICANT** **-VERSUS-** **JAMES MULI ………………………………………………..1ST RESPONDENT** **BETH GODDARD PHILIP ………………………………....2ND RESPONDENT** **GEORGE PHILIP MWENDWA …………………………...3RD RESPONDENT** **RULING** 1. Before this court for determination is the Notice of Motion dated 1st October, 2025 filed by the Appellant/Applicant under the provisions of Sections 1A, 1B, 3A of the Civil Procedure Act in addition to Order 12 Rule 1 and Order 42 Rule 21 of the Civil Procedure Rules. 2. The following orders were sought: - 3. **[*SPENT*]** 4. **THAT the order made on 10th December, 2024 dismissing ELC Appeal No. 19 of 2022 for want of prosecution be set aside.** 5. **THAT ELC Appeal No. 19 of 2022 be reinstated for hearing and determination on its merits.** 6. **THAT costs of this application be provided for.** 7. The application is premised on the grounds appearing on the face thereof together with the supporting affidavit sworn by Francis Muisyo Maitha on even date. The deponent averred that his appeal was dismissed on 10th December, 2024 for want of prosecution. He contended that he was not served with the hearing notice or a notice to show cause why the appeal should not be dismissed. 8. The deponent contended that he is desirous of prosecting the appeal which raises triable issues. He added that unless the appeal is reinstated, he risks committal to civil jail in execution proceedings in the lower court and that he will be condemned unheard. He urged the court to allow the application in the interest of justice. 9. Opposing the application, the Respondents filed a replying affidavit sworn on their behalf by James Muli on 3rd November, 2025. He averred that the Applicant had come to this court upon being served with court papers for execution. That the Appellant filed a Memorandum of Appeal dated 14th October, 2022 and never filed a record of appeal or attended court to seek time to file their documents. 10. The Respondents contended that the application is devoid of merit having been brought after an inordinate and unexplained delay which demonstrated lack of diligence on the part of the Applicant. It was contended that the Applicant had failed to establish sufficient cause to warrant the exercise of the court’s discretion. The deponent urged the court to dismiss the application with costs. 11. In a supplementary affidavit sworn by the Applicant on 4th December 2025, the Applicant contended that he did not have the benefit of Counsel and did not know that he was supposed to file a record of appeal. That he thought that a hearing date would be fixed by the court and communicated to him. He reiterated that he was neither served with a hearing date or a notice to show cause. He further reiterated he is desirous of prosecuting the appeal as the subject matter is land which is an emotive issue. 12. Parties canvassed the application by way of written submissions. 13. In the Applicant’s submissions dated 4th December 2025, Counsel contended that the dismissal of the appeal herein was initiated by the court *suo motu* without service of a notice upon the Applicant. That Order 42 Rule 35(2) of the Civil Procedure Rules requires that both parties be notified before an order for dismissal is made. Counsel argued that the omission renders the dismissal of the appeal procedurally irregular and unlawful. Relying on the decision of the court in **Kenya Power & Lighting Company Ltd v Mukinyi [2023] KEHC 24735 (KLR)**, Counsel submitted where procedural requirements are not met, the dismissal may be liable to challenge. 14. Counsel further submitted that the Applicant had demonstrated a bona fide intention to prosecute the appeal by filing a Notice of Appeal and a Memorandum of Appeal even though he was unrepresented at the time. Counsel argued that the Applicant is vulnerable to enforcement proceedings and that allowing the appeal to be reinstated ensures that the substantive issues are adjudicated and the Applicant is not condemned unheard. It was further argued that the Respondent will have an opportunity to be heard and that no prejudice will be suffered. Accordingly, it was submitted that sufficient cause had been established to set aside the dismissal order. 15. In the Respondents’ submissions dated 11th February 2026, Counsel argued that the present application was made ten months after the dismissal of the appeal whereas the Notice of Appeal was filed on 14th October, 2022. Counsel submitted that the Applicant’s explanation of not being represented which had caused his inaction before dismissal of the appeal was a lame excuse. It was contended that there was no evidence that the Applicant had visited the court registry for inquiry or to seek assistance. 16. Counsel contended that the Respondents should be allowed to enjoy the fruits of their judgment and that reinstating the matter will prejudice the Respondents by further delaying the matter. It was stated that the Applicant had not given sufficient reasons for the inordinate delay in filing the instant application and for failure to prosecute the dismissed appeal. Counsel urged the court to dismiss the application with costs. 17. The sole issue for determination is whether the Applicant has demonstrated merit in the application to set aside the dismissal order and for reinstatement of the appeal herein. 18. It is not in dispute that the appeal herein was dismissed on 10th December, 2024 for want of prosecution. The Applicant argued that prior to dismissal of the appeal, he was not served with a hearing notice or a notice to show cause why the appeal should not be dismissed. 19. Having perused the record, the court is certain that the Applicant was served with a notice on 13/11/2024 by one Ali Simba Kalii, a duly licencsed process server who had been instructed by the Respondents’ advocates. A return of service was filed in court on 22/11/2024 indicating that the process server visited the Applicant for purposes of service at his business premises (hardware) in Wote Town but the Applicant declined to endorse his acceptance of service on the process server’s duplicate notice. 20. Being a discretionary power, the Court of Appeal observed as follows in **CMC Holdings Ltd v James Mumo Nzioki [2004] eKLR** with regard to the setting aside of *ex-parte* orders: - ***“Our view is that in law, the discretion that a court of law has, in deciding whether or not to set aside ex parte order such as before us was meant to ensure that a litigant does not suffer injustice or hardship as a result of among other things an excusable mistake or error. It would in our mind not be a proper use of such a discretion if the Court turns its back to a litigant who clearly demonstrates such an excusable mistake, inadvertence, accident or error. Such an exercise of discretion would in our mind be wrong in principle.”*** 1. In **Shah v Mbogo [1967] EA 116** at 123B Harris J, judiciously held as follows:- ***“This discretion is intended so to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist the person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice.”*** 1. In the instant application, the Applicant filed his Memorandum of Appeal on 18th October, 2022. The matter was mentioned in court severally before finally being listed for dismissal for want of prosecution. Having filed the appeal, the Applicant did not demonstrate any further action taken with the objective of expeditious disposal. No evidence was adduced to justify his willingness to prosecute the matter either by visiting the court registry or appointing Counsel. 2. Moreover, there was a ten-month delay between the dismissal order and the present application which the Applicant has not sufficiently explained. 3. Judicial decisions abound on the need for litigants to stay abreast with their suits in order to avert unnecessary delay or indolence on their part. In the case of **Habo Agencies Limited v Wilfred Odhiambo Musingo [2015] eKLR,** the Court of Appeal aptly held as follows: - ***“Courts have always emphasized that parties have a responsibility to show interest in and to follow up their cases even when they are represented by counsel.”*** 1. In the case of **Savings and Loans Limited vs Susan Wanjiru Muritu Nairobi HCCC 397/2002**, the court observed as follows: - ***“Whereas it would constitute a valid excuse for the defendant to claim that she had been let down by her former advocates failure to attend court on the date the application was fixed for hearing, it is trite that a case belongs to a litigant and not to her advocate. A litigant has a duty to pursue the prosecution of his or her case. The court cannot set aside dismissal of a suit on the sole ground of a mistake by counsel of the litigant on account of such advocate’s failure to attend court. It is the duty of the litigant to constantly check the progress of her case.”*** 1. The upshot of the foregoing is that the Applicant has failed to establish sufficient cause to set aside the dismissal order. The application is devoid of merit and is hereby dismissed with costs. It is so ordered. **................................................** **HON. E. O. OBAGA, FCIArb** **JUDGE** **RULING DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 14TH DAY OF JULY, 2026.** **IN THE PRESENCE OF:** Mr. Ndungi for Applicant. Mr. Kioko for Respondents. Court Assistants – Kilonzo & Musyoki