REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT MALINDI ELCLA NO. E027OF 2025 FATUMA PLAINTIFF CHARO MOSES NDUNGU DEFENDANT KITUTU……………..…………………...…………….. BENSON VERSUS WARIA …..……..………..……..…..…. RULING 1. On 11th of October 2025, the appeal herein was dismissed for want of prosecution. On 12th November 2025 the appellant filed an application dated 11th November 2025 for orders seeking the reinstatement of the appeal and extension of the stay of execution order that had been granted before the appeal was dismissed. The application is supported by the affidavit of E.J. Metto, the advocate having conduct of the matter on behalf of the appellant. The grounds upon which the others are sought are that counsel for the appellant was unable to attend the court on 11 th November 2025 because she had mis-diarised the matter. Counsel also gave the ground that the parties herein have been engaged in out of court negotiations aimed at settling the dispute, which negotiations are at an advanced stage, and the appellant was acting in good faith; that unless the appeal and stay orders are reinstated, the respondent is likely to proceed with eviction and demolition of the appellant’s structures on the suit land, thereby rendering the appeal nugatory. 2. The application is opposed vide the replying affidavit of the respondent, dated 7th January 2026. The deponent states that since the appeal was lodged, the appellant has not taken any active step to prosecute the same hence the dismissal on 11th November 2025; that no good reason has been advanced as to why they appeal MLDELCLAE027/224-RLG/DF-22.07.24/LH-11.10.25/DR-09.03.26F. Page 1 of 2
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should be reinstated, and that this is evident in the fact that the affidavit is support of the motion for reinstatement is sworn by counsel for the appellant and not by the appellant herself; that in any event, no extract of counsel’s diary has been attached to the application to demonstrate the alleged mis-diarization; also, that in any event magistrates’ courts are now considered to have no jurisdiction to handle matters pertaining to adverse possession, and therefore the appeal would still be inarguable for want of jurisdiction. 3. Both parties filed submissions for the disposal of the application. This being an application for a reinstatement, the least that the court would have expected is proof of the mis-diarization of this matter by counsel and that is lacking. She only required to attach to her supporting affidavit the extracts for the relevant dates regarding which the confusion occurred. As the record stands it's not possible to know what happened. There being no such proof, the application must fail and I hereby dismiss it with costs. Dated, signed and delivered at Malindi on this 9 th Day of March 2026. MWANGI NJOROGE, JUDGE, ELC, MALINDI. MLDELCLAE027/224-RLG/DF-22.07.24/LH-11.10.25/DR-09.03.26F. Page 2 of 2
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