Peter Keen Kiboi v Terence Naibei Lubusi
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial court was justified in dismissing the appellant's application to vary, review and set aside the order of dismissal of the appellant's appeal
Key legal issues
#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
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.
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.
Legal principles established
#- 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
#- 1.The appeal is dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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)
Relief refused
#Setting aside the High Court ruling dismissing the application to review, vary and set aside the order dismissing the appeal for want of prosecution
The learned Judge properly exercised his discretion; no ground for review (new evidence, error apparent on the face of the record, or other sufficient reason) was demonstrated, and the application was made after inordinate unexplained delay
Costs
The appeal was 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.
The circumstances under which this Court can interfere with the exercise of discretion by a lower court are circumscribed.
The main grounds for review are; discovery of new and important matter of evidence; mistake or error apparent on the face of the record; and any other sufficient reason and most importantly, the application has to be made without unreasonable delay.
Justice cuts both ways. By dismissing the appellant's application, the High Court cannot be faulted as having denied the appellant a chance to argue his appeal. The respondent was equally entitled to justice.
For these reasons, we find no merit in the appeal. We accordingly dismiss it with costs to the respondent.
Issues in the judgment
#Conflicting dates for the ruling under appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.