Eliud Mukhisa Nalianya & 1 other v Joseph Wanjala Fulafu & 1 other
The bottom line
#The Court of Appeal refused to reinstate a land suit dismissed for non-attendance, ruling that no one is exempt from following court rules and dates.
What this practically means
#Executive summary
#Key legal issues
#Interference with judicial discretion on appeal
The Court of Appeal declined to disturb the judge's refusal to reinstate the suit, finding no misdirection, misapprehension of facts, or injudicious exercise of discretion.
Citing Mbogo v Shah and Supreme Court decisions in Apungu Kibira v IEBC, Deynes Muriithi and Francis Wambugu v Babu Owino, the court held that discretion may only be interfered with where the judge misdirected himself, arrived at a wrong decision, or was clearly wrong in the exercise of his discretion, resulting in misjustice. None was shown here.
Limits of the power of review as distinct from appellate power
Review power may be exercised only on discovery of new and important matter, or an error apparent on the face of the record, not because the decision was erroneous on merits.
Adopting the Indian Supreme Court decision in Aribam Tuleshwar Sharma v Ariban Pishak Sharma, the court held that review power is not to be confused with appellate power. The appellants discovered no new fact justifying review; their complaint was in substance an appeal against the merits of the dismissal, which was impermissible.
Death of a link plaintiff as good cause for non-attendance
The asserted 'link person' narrative was an afterthought not borne out by the record; with three plaintiffs on record, the death of one did not excuse the others' non-attendance.
The record of 9th November 2015 showed counsel simply stated he was told the third plaintiff was dead, with no death certificate, burial permit, or assertion that the deceased was the link between counsel and clients. The hearing date was fixed by consent and nothing showed the remaining plaintiffs lacked knowledge of it or made any effort to follow up their five-year-old case.
Land disputes and compliance with procedural rules
Land disputes do not enjoy special exemption from procedural compliance; a party must prosecute its case on the scheduled date.
Rejecting the argument that failing to reinstate a land suit violated the ends of justice under Order 12 rule 6(2), the court held there is no rule or principle absolving land disputes from following the rules, directions and orders of the court, especially where the hearing date was taken by consent and the case was already five years old.
Legal principles established
#- An appellate court will rarely interfere with the exercise of discretion by a lower court unless the discretion was exercised whimsically or there is a plain and clear misapplication of the law resulting in misjustice.
- The nature of a dispute (e.g. a land matter) does not excuse a party from timeously following the rules, directions and orders of the court.
- It is the primary duty of a party to take steps to progress their own case, since they are the ones who drag a defendant to court.
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal to the 2nd respondent
- On appeal from
- High Court of Kenya at Bungoma
- Bungoma High Court Case No. 69 of 2010
- Jurisdiction invoked
- First appeal against an exercise of discretion of the High Court, under the Court of Appeal's appellate jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Eliud Mukhisa Nalianya & 1 other v Joseph Wanjala Fulafu & 1 other", Case Analysis (2019). Civil Appeal No. 108 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/113/eng@2019-11-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.