Khamisi & 4 others v Khamisi & another (Civil Appeal E012 of 2022) [2025] KECA 1703 (KLR)
The bottom line
#The Court of Appeal confirmed that ignoring court deadlines and hearings can cost you your case permanently, even if you had reasons.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned Judge erred in law and in fact in failing to exercise his discretion judiciously under Article 159(2)(d) of the Constitution in declining to set aside the judgment delivered on 29th April 2020
- 2.Whether the appellants gave a satisfactory explanation as to their failure to defend the suit
Key legal issues
#Whether the ELC judge properly exercised his discretion in refusing to set aside the regular judgment entered against the appellants
The appeal was dismissed; the judge's discretion was properly exercised because the appellants failed to give a satisfactory explanation for their failure to defend the suit.
The court traced the chronology: the appellants' counsel appeared repeatedly, obtained adjournments and an extension to comply with Order 11, then failed to attend the hearing. Counsel's indisposition did not excuse them because a properly instructed counsel always attended court, and the parties abroad could have recorded statements remotely. The appellants' indolence was intended to delay justice, so the discretion could not be exercised in their favour.
Whether the mistake or indisposition of counsel should be visited upon the litigants
No. Where counsel was all along properly instructed and other counsel held his brief and appeared, there is no oversight such that the mistake-of-counsel principle would avail the litigants.
The court noted that even in the former counsel's absence, there was properly instructed counsel who always attended court, and there was no denial that he instructed the advocates who appeared for the appellants. Hence there was no iota of oversight, and this was not a fit case to argue that a mistake of counsel should not be visited upon an innocent litigant.
Whether the appellants' absence from the country excused their failure to file witness statements and participate in the hearing
No. Modern communication technology and courier services made compliance possible; moreover, the 1st, 2nd and 3rd appellants were in the country and could have filed their own statements.
The court observed that in today's world of advanced technology, persons living abroad can communicate and transact business remotely, including recording witness statements by video call or delivering signed statements by international courier. Further, there was no suggestion the 1st, 2nd and 3rd appellants were abroad, so they could have filed statements and represented the 4th and 5th appellants as the 2nd appellant had done in filing the application.
Legal principles established
#- An appellate court will not interfere with a discretionary decision unless the judge misdirected himself in law, misapprehended the facts, took into account irrelevant considerations, failed to take account of relevant considerations, or the decision is plainly wrong.
- The discretion to set aside a judgment is to be exercised to avoid injustice or hardship from accident, inadvertence or excusable mistake, not to assist a party who has deliberately obstructed or delayed the cause of justice.
- On an appeal from a decision based on the exercise of discretionary powers, the appellant must show the decision was based on a whim, was prejudicial or was capricious.
- Even where a judgment is regular, the court retains a wide discretion to set it aside on just conditions, the main concern being to do justice to both parties.
Court orders
#- 1.The ruling of the learned Olola, J. in Malindi ELC No. 33 of 2018 delivered on 16th July 2021 is upheld
- 2.The appeal is dismissed with costs to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Malindi
- Malindi ELC No. 33 of 2018
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal Rules, 2022 (rule 31(1)(a))
Relief refused
#Setting aside of the trial court's judgment of 29th April 2020 and an opportunity to defend the suit on merit
The appellants' explanations for non-participation (counsel's illness, parties abroad) were implausible; they were previously indulged and their conduct was aimed at delaying justice
Costs
The appeal is dismissed with costs to the respondents.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the end, we find that the appeal lacks merit. We hereby uphold the ruling of the learned Olola, J. in Malindi ELC No. 33 of 2018 delivered on 16th July 2021. Ultimately, the appeal is hereby dismissed with costs to the respondents.
The Court of Appeal is only entitled to interfere if one or more of the following matters are established: first, that the judge misdirected himself in law; secondly, that he misapprehended the facts;
A litigant who ignores court processes and orders cannot later cry wolf whereas he/she knew the consequences of not complying with the orders.
Our view then is that this is not a fit and proper case in which counsel may argue that mistake of counsel should not be visited upon an innocent litigant.
The appellants wilfully defaulted in compliance with court orders and failed to show good cause why the regular judgement of 29th April 2020 should be set aside.
Issues in the judgment
#The judgment records inconsistent hearing dates: paragraph 11 refers to 'pre-trial directions were issued on 16th July 2021' which duplicates the date of the impugned ruling, while the court later records directions of 16th July 2018.
The judgment records the appellants' counsel as being in India 'the whole year in 2010', which is inconsistent with the chronology of 2018-2020 events.
The judgment computes time between 18th December 2019 and 5th March 2019, whereas the hearing adjourned on that date was on 18th December 2018.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Khamisi & 4 others v Khamisi & another (Civil Appeal E012 of 2022) [2025] KECA 1703 (KLR)", Case Analysis (2025). Court of Appeal Appeal from Malindi ELC No. 33 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1703/eng@2025-10-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.