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ELCAllowedNotice of motion dated 23rd July, 2025· [2026] KEELC 449 (KLR)

Masai & another v Matunda CBO through Chairman & 2 others (Environment and Land Case E025 of 2024) [2026] KEELC 449 (KLR)

High Court of Kenya (Environment and Land Division)
29 January 2026
EOE. O. Obaga
717 words in judgment
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The bottom line

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The High Court of Kenya reinstated a land case after a lawyer missed a hearing date, ruling that a client should not lose their case because of their lawyer's mistake.

What this practically means

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Executive summary

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This ruling by Hon. E. O. Obaga J, delivered on 29th January, 2026, determines a notice of motion dated 23rd July, 2025 in which the Defendants/Applicants sought review and setting aside of directions given on 15th July, 2025 and reinstatement of their application dated 28th May, 2025. The Applicants explained that their advocate failed to attend court on 15th July, 2025 because the matter was not diarized, the advocate in personal conduct of the matter having attended an Auctioneers Board meeting. The Plaintiffs/Respondents opposed, contending that no sufficient reason was given for non-attendance and noting that the hearing date was taken in the presence of Mr. Mutia for the Applicants. The court framed a single issue: whether the Applicants demonstrated that they deserved the exercise of the court's discretion to set aside the orders of 15th July, 2025. Relying on Lucy Bosire v Kehancha Div Land Disputes Tribunal & 2 others (2013) KEHC 681 (KLR), the court applied the principles that advocates' mistakes should not be visited on clients where remediable by costs, and that the court should opt for the lower rather than the higher risk of injustice. The advocate exhibited a diary extract showing the matter was not diarized for 15th July, 2025. Finding the explanation reasonable, the court allowed the application, set aside the dismissal of the application dated 28th May, 2025 and the directions that the case proceed by formal proof, and ordered costs of the application to be in the cause.

Key legal issues

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Whether the applicants' explanation for counsel's non-attendance justified setting aside the orders of 15th July, 2025

Holding

Yes - the explanation that the matter was omitted from the advocate's diary was reasonable and the discretion to set aside was exercised in favour of the applicants

Reasoning

The court considered the advocate's explanation that non-attendance was not deliberate but resulted from a failure to diarize the matter, supported by an extract from the diary showing the case was not listed for 15th July, 2025. Applying the principle that advocate's mistakes should not be visited on clients where remediable by costs, and that the court should opt for the lower risk of injustice, the court found the explanation reasonable and set aside the dismissal of the application dated 28th May, 2025 and the formal proof directions.

p. 2

Legal principles established

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  • Mistakes of advocates should not be visited on clients where the justice of the case mandates and the situation can be remedied by costs
  • A court exercising its discretion should opt for the lower rather than the higher risk of injustice

Court orders

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  1. 1.Setting aside the dismissal of the application dated 28th May, 2025
  2. 2.Setting aside the directions that the case proceed by way of formal proof
  3. 3.Costs of the application to be costs in the cause
Jurisdiction invoked
Inherent discretion of the court to set aside ex parte directions/orders

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, "Masai & another v Matunda CBO through Chairman & 2 others (Environment and Land Case E025 of 2024) [2026] KEELC 449 (KLR)", Case Analysis (2026). Notice of motion dated 23rd July, 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/449/eng@2026-01-29

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