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ELCDismissed· [2025] KEELC 6012 (KLR)

Mutiso v Nzuki & 2 others; Mukuu FCS (Interested Party) (Environment and Land Appeal E022 of 2023) [2025] KEELC 6012 (KLR)

Environment and Land Court (not expressly stated in the judgment; first appellate court sitting at Machakos)
16 September 2025
AKA. Y. Koross
2,041 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Machakos appeal court confirmed that missing a hearing date costs you money — and you cannot raise new arguments on appeal that were never raised in the lower court.

What this practically means

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Executive summary

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This is a first appeal against orders issued on 18/09/2023 by a trial magistrate, who had allowed the appellant's (plaintiff's) notice of motion dated 6/09/2023 seeking to set aside ex parte proceedings of 4/09/2023, but assessed throwaway costs at Kshs. 42,000/-. The appellant, whose case had been closed after her law firm failed to attend a hearing rescheduled suo moto from 5/09/2023 to 4/09/2023 despite notice, appealed on four grounds: unilateral change of the hearing date, improper service, manifestly excessive throwaway costs, and abuse of discretion. She sought allowance of the appeal, setting aside of the 18/09/2023 orders and the 4/09/2023 proceedings, and reinstatement of her suit. The appellate court, per Koross J, first dealt with preliminary issues: grounds (a) and (b) and a new ground raised only in submissions (challenging the dismissal of the appellant's case) had not been canvassed below and were disregarded, applying the settled rule against raising new points on appeal. On the sole surviving issue - whether the trial magistrate erred in assessing throwaway costs at Kshs. 42,000/- - the court applied Nguruman Limited and the Scherer principles, noting that an appellate court may not substitute its own discretion absent misdirection, failure to consider relevant matters, or clear abuse of discretion. The court found the appellant's non-attendance was her own responsibility and the assessed costs properly reflected wasted time and witness expenses. The appeal was dismissed, the 18/09/2023 orders upheld, and costs of the appeal awarded to the respondents.

Key legal issues

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01

Whether new grounds of appeal not raised in the lower court could be entertained

Holding

Grounds (a) and (b) were disregarded; the new ground introduced in submissions without amending the memorandum of appeal fell by the wayside

Reasoning

The court held it is settled law, per Kenya Hotels Limited v Oriental Commercial Bank (approving United Dominion Trust Ltd v Bycroft), that a party may not raise a new point on appeal not raised below unless with consent, given the public interest that a defeated party should not make the successful party litigate afresh. A new ground introduced in submissions without amending the memorandum of appeal was likewise improper.

p. 3
02

Whether the trial magistrate erred in assessing throwaway costs at Kshs. 42,000/-

Holding

The trial court did not err; the assessment properly accounted for wasted time, the number of witnesses already heard and their expenses, and the appellant's own non-attendance caused the proceedings

Reasoning

Applying the Scherer v Counting Instruments Ltd principles and Nguruman on appellate deference to discretion, the court found the hearing was rescheduled suo moto to 4/09/2023 with notice to all counsel; the appellant's firm admitted being served but failing to appear due to human error. The assessed costs reflected the wasted time and witness expenses. There was no misdirection, failure to consider relevant matters, or abuse of discretion.

p. 4

Legal principles established

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  • A party cannot raise on appeal a new point not raised or canvassed before the lower court, unless with consent
  • An appellate court has no jurisdiction to exercise an independent original discretion; it will not interfere with the exercise of discretion below merely because it would have decided differently
  • The exercise of judicial discretion carries a presumption of correctness, reversible only upon showing of a clear abuse of discretion
  • Costs follow the event

Court orders

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  1. 1.The appeal was dismissed as devoid of merit
  2. 2.The orders issued on 18/09/2023 assessing throwaway costs at Kshs. 42,000/- were upheld
  3. 3.Costs of the appeal awarded to the respondents

Authorities

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Cases cited (7)

  • Gitobu Imanyara & 2 Others vs Attorney General
    [2016] eKLR
  • Kenya Hotels Limited v Oriental Commercial Bank Limited
    [2018] KECA 692 (KLR)
  • United Dominion Trust Ltd v. Bycroft
    [1954] All ER 455
  • Nguruman Limited v Jan Bonde Nielsen & 2 others
    [2014] KECA 606 (KLR)
  • Sheila Wambui Muturi v Peter Macharia Muiru
    [2021] KEHC 7870 (KLR)
  • County Government of Tana River & another v Hussein Fumo Hiribae
    [2021] KEHC 5909 (KLR)
  • Scherer v Counting Instruments Ltd
    [1986] IWLR 615
On appeal from
Trial court (magistrates' court)
Jurisdiction invoked
First appellate jurisdiction over the trial court's orders of 18/09/2023 (appeal against assessment of throwaway costs)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mutiso v Nzuki & 2 others; Mukuu FCS (Interested Party) (Environment and Land Appeal E022 of 2023) [2025] KEELC 6012 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6012/eng@2025-09-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.