Apaga v Noor (Environment and Land Appeal 20 of 2024) [2025] KEELC 5801 (KLR)
The bottom line
#Kenya's High Court dismissed an appeal against an ex-parte judgment, holding that receiving a hearing notice 'under protest' or WhatsApping a magistrate is no substitute for attending court.
What this practically means
#Executive summary
#Key legal issues
#Sufficient cause for setting aside ex-parte proceedings and judgment
The appellant failed to demonstrate sufficient cause; her counsel's engagement before the Court of Appeal, receipt of notice under protest and a WhatsApp message to the magistrate did not constitute plausible or credible explanation
The court held that both litigant and counsel had a duty to attend or procure a representative to apply for adjournment. Notification of the opponent did not shift the burden; opposing counsel owed no duty to the appellant; messaging the magistrate via WhatsApp was unorthodox and not known to law. The conduct evidenced lack of bona fides and an intent to delay and obstruct the suit.
Whether the trial magistrate injudiciously exercised discretion
No improper or injudicious exercise of discretion was established; the magistrate properly appraised the explanations and correctly found them inexcusable
The first appellate court's jurisdiction to disturb discretionary decisions is circumscribed: interference lies only where the lower court misdirected itself, considered irrelevant matters, ignored relevant ones, or reached an outrightly unreasonable decision. Applying Mbogo v Shah and Patel v EA Cargo Handling, the magistrate's ruling showed proper appraisal of the reasons and application of correct principles.
Scope of a first appeal
A first appellate court may review, re-evaluate and re-analyse the evidence and arrive at independent conclusions, but with caution and deference to the trial court's findings
Relying on Section 78 of the Civil Procedure Act and Selle v Associated Motor Boat Co, the court reiterated that a first appeal is by way of retrial, though the appellate court, having neither seen nor heard the witnesses, must defer to trial findings unless they are perverse or informed by extraneous factors.
Legal principles established
#- A party seeking an adjournment must attend court and apply on plausible evidence; receipt of a hearing notice under protest does not excuse non-attendance
- An appellate court will not interfere with a lower court's exercise of discretion unless the decision is clearly wrong, based on wrong principles, or ignores relevant matters
- Justice shall not be delayed is a constitutional imperative binding on advocates and litigants
Court orders
#- 1.The Appeal be and is hereby dismissed
- 2.The Ruling of the learned trial magistrate rendered on 23rd September 2024 be and is hereby affirmed
- 3.Costs of the Appeal be and are hereby awarded to the Respondent
- 4.The Costs shall be agreed upon and in default same to be taxed in the usual manner
- On appeal from
- Subordinate Court (Magistrates' Court)
- Suit relating to Plot Isiolo Township/Block II/244 (number not stated)
- Jurisdiction invoked
- First appellate jurisdiction under Section 78 of the Civil Procedure Act, Chapter 21, Laws of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Apaga v Noor (Environment and Land Appeal 20 of 2024) [2025] KEELC 5801 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5801/eng@2025-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.