Kiru Tea Factory Company Ltd v Isaiah Munyi Gilbert & 1 other
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
#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
- 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)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kiru Tea Factory Company Ltd v Isaiah Munyi Gilbert & 1 other", 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.