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
#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
- 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)
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.