Nyagah & 2 others v Chibayi (Environment and Land Appeal E032 of 2024) [2026] KEELC 956 (KLR)
The bottom line
#The High Court in Kakamega upheld a magistrate's refusal to reinstate a Kshs. 1.1 million land lawsuit dismissed after the plaintiffs' lawyer missed a hearing date.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there is sufficient material placed before the court to justify interference with the exercise of discretion by the trial court in dismissing the appellants' application dated 6th June 2023
Key legal issues
#Interference with exercise of discretion of the trial court
The trial court acted judiciously; there was no basis for the appellate court to interfere with its dismissal of the review application
The court restated the strict criteria for interfering with discretionary decisions, drawing on Apungu Arthur Kibira and Mbogo v Shah. The hearing date was fixed by consent; the appellants' counsel was absent; no flight ticket was produced to substantiate the claimed layover; and the 11-month delay before filing the review application was inordinate and unexplained. The trial court therefore took relevant matters into account and its decision could not be faulted.
Competency of the appeal on the ground of being filed out of time
The objection was not sustained because it was never raised when the appeal was admitted on 26th May 2025
Although the respondent's counsel argued in submissions that the appeal was filed outside 30 days, the respondent neither objected to admission of the appeal nor raised the limitation issue at the directions stage on 25th May 2025. The appeal having been admitted on 26th May 2025, the court proceeded to hear and determine it on its merit.
Legal principles established
#- An appellate court will only interfere with the exercise of discretion by a trial court where the trial court acted whimsically, failed to act judiciously, made an error of law or principle, took into account irrelevant considerations, failed to take into account relevant considerations, or the decision is plainly wrong
Court orders
#- 1.The appeal is dismissed with costs to the respondent
- 2.It is so ordered
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Kakamega Chief Magistrates Court
- L&E Case No. 71 of 2020
- Jurisdiction invoked
- First appeal against decision of the Chief Magistrates Court under the Civil Procedure Act
Relief refused
#Setting aside the ruling of the learned Magistrate delivered on 24th April 2024
The trial court exercised its discretion judiciously; the delay of 11 months was inordinate and unexplained and the flight-delay explanation was implausible
Costs of the appeal
Costs were awarded against the appellants
Costs
Appeal dismissed with costs to the respondent
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.
This court will only interfere with the exercise of discretion by the trial court where it is shown that the trial court acted whimsically and failed to act judiciously and or made an error of law or principle; took into account irrelevant considerations; failed to take into account relevant considerations; or the decision is plainly wrong.
In the premises, I find no merit in this appeal, which I dismiss with costs to the respondent.
Discretion of the court is not to be exercised whimsically or arbitrarily and therefore, the trial court in this matter acted judiciously in rejecting the prayers sought in the appellants’ application dated 6th June 2023 as the delay was inordinate and the explanation for the delay was implausible.
Issues in the judgment
#Internal inconsistency on the date the suit was dismissed: paragraph 8 states the case was dismissed on 19/04/2023 while paragraphs 4 and 10 describe dismissal for non-attendance on 12/7/2022
Inconsistent reference to the orders sought for review: the memorandum of appeal refers to review of the orders of 12th July 2022, while the respondent's submissions refer to review of the orders of 12th July 2023
Date of delivery typed as 'FEBUARY' (sic) in the judgment's closing
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyagah & 2 others v Chibayi (Environment and Land Appeal E032 of 2024) [2026] KEELC 956 (KLR)", Case Analysis (2026). Kakamega Chief Magistrates Court L&E Case No. 71 of 2020 (appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/956/eng@2026-02-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.