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ELCDismissedNot stated in judgment (Notice of Motion dated 18th May, 2024)· [2025] KEELC 6566 (KLR)

Masila v Maitha (Environment and Land Appeal E003 of 2021) [2025] KEELC 6566 (KLR)

High Court of Kenya
2 October 2025
EOE. O. Obaga
1,064 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to reinstate an appeal the owner had ignored for years, showing blame alone won't revive dismissed cases.

What this practically means

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Executive summary

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The Plaintiff/Applicant moved the court by Notice of Motion dated 18th May 2024 under Sections 1A, 1B and 3A of the Civil Procedure Act, seeking to set aside an order dismissing his appeal and to reinstate it, with costs in the cause. He averred that his advocates did not hear the matter being called out online on 13th March 2023, and that the file could not be traced until March 2024, upon which he discovered the dismissal; he maintained that directions had not been taken and the lower court file had not been availed. The Respondent opposed, contending the appeal, filed on 24th February 2021, lay dormant for over three years, was rightfully dismissed for want of prosecution, and had no prospects of success. The sole issue was whether the dismissal order should be set aside and the appeal reinstated. The court applied CMC Holdings Ltd v James Mumo Nzioki and Shah v Mbogo on the exercise of discretion to set aside dismissals, and Order 42 Rule 35(2) of the Civil Procedure Rules. It found that although the Applicant blamed his advocate and alleged a missing file, he annexed no evidence of efforts to trace it, offered no explanation for the roughly four-year delay, and had never set the appeal down for directions. His conduct depicted a litigant not desirous of pursuing the matter. The application was dismissed with costs to the Respondent on 2nd October 2025.

Key legal issues

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Whether the dismissal of the appeal should be set aside and the appeal reinstated

Holding

Application dismissed; no excusable mistake or plausible explanation for the delay was demonstrated

Reasoning

The appeal, filed in February 2021, was never set down for directions or hearing and was dismissed on 18th September 2023 after a Notice to Show Cause. The Applicant blamed his advocate for not hearing the virtual call-out and claimed the file went missing, but annexed no evidence of efforts to trace it, such as correspondence with the Deputy Registrar. The conduct depicted a litigant not intent on prosecuting the matter, and reinstatement would not serve the overriding objective.

p. 3

Legal principles established

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  • Discretion to set aside dismissal/ex parte orders exists to avoid injustice from excusable mistake, not to reward deliberate delay

Court orders

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  1. 1.The application is dismissed
  2. 2.Costs to the Respondent
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Masila v Maitha (Environment and Land Appeal E003 of 2021) [2025] KEELC 6566 (KLR)", Case Analysis (2025). Not stated in judgment (Notice of Motion dated 18th May, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6566/eng@2025-10-02

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.