Mutali (Suing as a Personal Representative of the Late Mulati Wabuge) v Luchivya & another (Environment and Land Appeal E048 of 2021) [2025] KEELC 4375 (KLR)
The bottom line
#The High Court in Kakamega reinstated an appeal wrongly dismissed when neither party attended a mention, confirming courts can undo premature dismissals in the interest of justice.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there is good and sufficient cause to set aside the ex parte orders made on 5th October 2022 dismissing the appeal
Key legal issues
#Whether there was good and sufficient cause to set aside the ex parte dismissal of 5th October 2022
Yes. The appellant was unaware of the mention date, the dismissal was premature under Order 42 Rule 35 (no directions under Rule 13 had been given and less than one year had elapsed since filing), and the respondents suffered no prejudice not compensable in costs.
The court found that the mention date was fixed in the absence of both parties and the Deputy Registrar was to serve; the notice's postal address ownership was unclear. The appellant, who appeared in person and thumb-printed documents, was not shown to have been aware of the date. Both sides were absent on 5th October 2022. Although the appellant delayed in moving the court, the respondents did not demonstrate irreparable prejudice, so justice could still be done by reinstatement despite the delay.
Whether the dismissal complied with Order 42 Rule 35 of the Civil Procedure Rules
No. The dismissal was premature: no directions had been given under Order 42 Rule 13 and less than one year had elapsed since filing of the appeal.
The appeal was filed on 1st November 2021 and dismissed on 5th October 2022, less than a year after filing. No directions under Order 42 Rule 13 had been issued. The matter was listed for mention, not for dismissal, so the appeal was neither coming up for dismissal nor due for dismissal on that date.
Legal principles established
#- The discretionary power to set aside an ex parte order must be exercised judiciously considering the reasons for non-attendance
- An appeal may only be dismissed for want of prosecution in two circumstances: non-listing within three months after directions under Order 42 Rule 13, or non-listing within one year of service of the memorandum of appeal
Court orders
#- 1.The orders of 5th October 2022 dismissing the appeal are set aside and the appeal is reinstated for hearing and determination
- 2.The appellant to bear the costs of the application
- 3.The appellant to file and serve the record of appeal and submissions within sixty (60) days of the ruling
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 51 Rule 15 of the Civil Procedure Rules (power to set aside ex parte orders); Order 42 Rule 35 (dismissal of appeal for want of prosecution)
Relief refused
#Costs of the application by the appellant against the respondents
The appellant occasioned the delay leading to dismissal
Costs
The appellant shall bear the costs of the application
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The orders of 5th October 2022 are hereby set aside and this appeal is reinstated for hearing and determination.
I find and hold that justice can still be served by reinstatement of the appeal despite the delay.
This discretion (to set aside ex parte proceedings or decision) 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 a person who has deliberately sought, whether by evasion or otherwise to obstruct or delay the cause of justice.
it is clear that the appeal was neither coming up for dismissal nor was it due for dismissal as of 5th October 2022 when the matter came up for mention.
Issues in the judgment
#The judgment is captioned as an application by 'the appellant' before the court, indicating the matter is an appeal from a subordinate court, but no appeal number, lower court or decision appealed from is disclosed anywhere in the ruling.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mutali (Suing as a Personal Representative of the Late Mulati Wabuge) v Luchivya & another (Environment and Land Appeal E048 of 2021) [2025] KEELC 4375 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4375/eng@2025-05-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.