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Court of AppealDismissedCivil Appeal No. 126 of 2017· [2020] KECA 941 (KLR)

Peter Keen Kiboi v Terence Naibei Lubusi

Court of Appeal
31 January 2020
ASAsike-MakhandiaKIKiageOTOtieno-Odek
1,570 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that courts will not revive a dismissed appeal when the litigant delays unreasonably and shows no valid ground for review.

What this practically means

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Executive summary

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This interlocutory appeal arose from a ruling of the High Court at Bungoma (S. Mukunya, J.) dismissing the appellant's application to vary, review and set aside an order of 26th March 2014 by which Omollo, J. had dismissed the appellant's appeal (HCCA No. 132 of 2010) for want of prosecution. The appellant had been granted leave in October 2011 to file an amended record within 15 days but never complied, nor set the appeal down for hearing. When the respondent's dismissal application came up in March 2014, neither the appellant nor his counsel appeared. The appellant waited until July 2014 to seek reinstatement, arguing he had no notice of the hearing date and that the sins of counsel should not be visited on him. The High Court refused, holding the delay inordinate, the dismissal definitive, and itself functus officio. The Court of Appeal framed a single issue: whether the trial court was justified in dismissing the review application. Reaffirming Mbogo v Shah and National Bank of Kenya v Ndungu Njau, it held that interference with discretionary decisions is permitted only where the decision is clearly wrong. None of the statutory grounds for review - new evidence, error apparent on the face of the record, or other sufficient reason - was urged, and the application was made after inordinate unexplained delay, contrary to John Agina v Abdulswamad Sharif Alwi. The appeal was dismissed with costs to the respondent.

Key legal issues

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01

Whether the High Court properly exercised its discretion in refusing to review, vary or set aside the order dismissing the appeal for want of prosecution

Holding

The High Court properly exercised its discretion; none of the grounds for review were urged, the delay was inordinate and unexplained, and the appellant never responded to the question of delay.

Reasoning

The Court reiterated the circumscribed circumstances for interfering with discretionary decisions (Mbogo v Shah; National Bank of Kenya v Ndungu Njau). The grounds for review - new evidence, error apparent on the face of the record, sufficient reason, and promptness - were neither pleaded nor proved. The delay of over two years was unexplained, and the High Court's relevant considerations disclosed no misdirection, wrong decision, or undue reliance on technicalities.

p. 2

Legal principles established

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  • An appellate court may only interfere with the exercise of discretion by a lower court where it is satisfied the decision is clearly wrong - that the court misdirected itself, acted on wrong matters, or failed to consider relevant matters and arrived at a wrong conclusion.
  • Review may only be granted to correct an apparent error or omission on the face of the record that is self-evident and requires no elaborate argument; a different possible view or an erroneous conclusion of law is not a ground for review.
  • An application for review must be made without unreasonable delay; unexplained inordinate delay is not a sufficient reason for review.
  • Judgments and orders of court are not reviewed merely because a losing litigant is unhappy with the outcome.

Court orders

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  1. 1.The appeal is dismissed with costs to the respondent
On appeal from
High Court of Kenya at Bungoma
HCCA No. 132 of 2010
Jurisdiction invoked
First appellate jurisdiction over an interlocutory appeal from the High Court (appeal against exercise of judicial discretion in a review ruling)

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, "Peter Keen Kiboi v Terence Naibei Lubusi", Case Analysis (2020). Civil Appeal No. 126 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/941/eng@2020-01-31

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