John v Adawo (Environment and Land Appeal E027 of 2022) [2025] KEELC 7725 (KLR)

The court held that reinstatement is discretionary and must be exercised judiciously. The applicant's counsel's claimed technological failure was foreseeable and unproven - it was not shown he was online when the matter was called, and the WhatsApp screenshots were uncommissioned and thus inadmissible hearsay. Given the applicant's history of persistent non-compliance, including an unsigned Memorandum of Appeal, and the absence of a valid appeal to reinstate, the discretion could not be exercised in his favour.

The annexed screenshots were not signed or stamped by the Commissioner for Oaths who commissioned the supporting affidavit, contrary to Rule 9 of the Oaths and Statutory Declarations Rules. The court therefore went beyond them in the interest of justice, and the depositions about communication between the two counsel amounted to mere inadmissible hearsay.

The respondent argued that the appeal was filed out of time without leave and was fatally defective. The court held that what was before it was only the reinstatement application, so it restricted itself to that, though it noted that the unsigned Memorandum of Appeal was a nullity, meaning there was no valid appeal to return to even if reinstatement were granted.