Kiru Tea Factory Company Ltd v Gilbert & 5 others (Civil Appeal E017, E018 & E019 of 2021 (Consolidated)) [2026] KECA 654 (KLR)
The bottom line
#Kenya's Court of Appeal reinstated Kiru Tea Factory's land case, ruling courts must consider whether a missed court order was deliberate before killing a suit.
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 misapprehended the facts and failed to consider material relevant to the exercise of discretion in dismissing the appellant's application dated 25th June 2020 for reinstatement of the suit struck out for non-compliance with the orders of 18th December 2019
- 2.Whether the delay of approximately three months in filing the application for review/reinstatement was inordinate and unexplained, taking into account Covid-19 government restrictions
- 3.Whether, once the trial court accepted the appellant's explanation for the default, it was required to consider whether the failure to comply was intentional and contumacious (Re Jokai Tea Holdings)
- 4.Whether this Court, as a first appellate court, was entitled to interfere with the discretionary decision below
Key legal issues
#Interference with discretionary decisions on appeal
The learned Judge misapprehended the facts and failed to consider material relevant to the exercise of discretion, justifying interference.
The trial Judge accepted the appellant's explanation for the default yet refused reinstatement solely on the ground of a further three-month delay in filing the application. The Court found there was no evidentiary basis for rejecting the Covid-19 explanation, as the respondents filed no replying affidavits, and the Judge failed to consider whether the non-compliance was contumacious under the Re Jokai Tea Holdings principles.
Duty of a first appellate court on affidavit evidence
A first appellate court must reconsider and re-evaluate the affidavit evidence on record and draw its own conclusions, entitled to interfere where findings rest on no evidence, misapprehension of evidence or wrong principles.
The Court held that although the appeal arises from an application, its jurisdiction on a first appeal is the same as where oral evidence was taken, since affidavits contain the evidence on which the decision is based; the usual caution about not having seen or heard witnesses does not arise, but due deference is accorded to trial court findings of fact.
Consequences of non-compliance with peremptory 'unless' orders
Where the non-complying party demonstrates no intention to ignore or flout the order and the failure was due to extraneous circumstances, the failure is not contumacious and ought not disentitle the party to its rights.
Adopting Re Jokai Tea Holdings, the Court noted that while obedience to peremptory orders is the foundation of the court's authority and excuses should not be readily found, non-compliance occasioned by extraneous circumstances such as the advocate's failure to inform the client of directions is not contumacious and should not defeat the party's rights.
Legal principles established
#- The Court of Appeal will not interfere with a discretionary decision unless the judge misdirected himself in law, misapprehended the facts, took into account considerations he should not have, failed to take into account considerations he should have, or the decision is plainly wrong
- Where a court accepts a party's explanation for default in complying with an 'unless' order, it must go on to consider whether the non-compliance was intentional and contumacious before striking out the party's suit or refusing reinstatement
- A first appellate court may interfere with findings where the court below made a decision based on a premise not supported by the facts or where the opposite party filed no replying affidavit to challenge averments
- Minor procedural lapses, such as an error in the date of the ruling appealed against, are curable in the higher calling of doing justice without undue regard to procedural technicalities where no prejudice is shown
Court orders
#- 1.Appeal allowed
- 2.Ruling and orders made on 29th October 2020 dismissing the application dated 25th June 2020 set aside
- 3.Order substituted allowing the application dated 25th June 2020 (reinstatement of the suit)
- 4.Each party to bear its own costs of the appeals
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court, Embu
- Embu ELC Case No. 46 of 2014 (with related ELC Nos. 47 of 2014 and 48 of 2014)
- Jurisdiction invoked
- First appellate jurisdiction over appeals from the Environment and Land Court (Court of Appeal, Nyeri)
- Consolidated with
- Nyeri Civil Appeal No. E017 of 2021, Nyeri Civil Appeal No. E018 of 2021, Nyeri Civil Appeal No. E019 of 2021
Relief refused
#Costs of the appeal borne by the respondents
In light of the appellant's conduct prior to the giving of the directions of 18th December 2019, the Court ordered each party to bear its own costs
Costs
Each party to bear its own costs of the appeals
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.
We allow the appeal, set aside the ruling and orders made on 29th October, 2022, dismissing the application dated 25th June 2020 and substitute therefor an order allowing the said application.
we direct each party to bear its own costs of the appeals.
The next consideration, which he failed to take into account, was whether the failure was contumacious.
we find that the learned Judge misapprehended the facts and also failed to consider material relevant to the exercise of discretion and, as a result, arrived at a wrong decision, thus justifying our interference with the exercise of discretion.
There was no basis for this conclusion since the respondents did not file replying afidavits to challenge the averments by the appellant.
Issues in the judgment
#The judgment states the appeal was heard on 3rd November 2015, which is inconsistent with the delivery date of 25th March 2026 and the events described
The final orders refer to the ruling as made on 29th October 2022, while elsewhere the judgment and the memorandum of appeal indicate 29th October 2020 / 29th November 2020
The grounds of appeal refer to pre-trial directions given on 30th October 2014 and orders of 18th October 2014, whereas the narrative gives 30th October 2019 and 18th December 2019
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kiru Tea Factory Company Ltd v Gilbert & 5 others (Civil Appeal E017, E018 & E019 of 2021 (Consolidated)) [2026] KECA 654 (KLR)", Case Analysis (2026). Nyeri Civil Appeal Nos. E017 of 2021, E018 of 2021 and E019 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/654/eng@2026-03-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.