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ELCDismissedELC Appeal No. E033 of 2025

Moses Olando Andati v John Munyendo Muheba

Environment and Land Court of Kenya
23 September 2026
2,667 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court dismissed a landowner's appeal, confirming that courts will not rescue parties who ignore repeated chances to present their evidence.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Kakamega against a ruling of Hon. T. A. Obutu (CM) in Mumias MCELC Case No. E039 of 2022, dismissing the defendant's Notice of Motion dated 25th July 2024. The underlying suit, filed by plaint dated 12th July 2022, sought permanent injunction, eviction and general damages for trespass over parcels E/Wanga/3926, E/Wanga/1157 and E/Wanga/3408, which the plaintiff said he had bought from the late Burono Wandati. The 1st defendant, claiming to be a son of the registered owner, counterclaimed for a declaration that the plaintiff's title was extinguished by adverse possession. After the plaintiff closed his case on 21st May 2024, the defence case was closed for non-compliance, prompting the defendant's application to review those orders, reopen the defence case, file witness statements and documents, and expunge PW2's evidence. The trial court dismissed the application, holding the defendant had been accorded sufficient opportunity but chose to sleep on his rights. On appeal, Nyukuri J framed a single issue: whether the trial court properly exercised its discretion. Applying United India Insurance, Mbogo v Shah and Apungu Arthur Kibira, the court held that an appellate court will not interfere with discretion merely because it would have decided differently. The appellant had not challenged the trial court's reasons; four mentions and three hearings were ample opportunity. The appeal was dismissed with costs to the respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the trial court properly exercised its discretion in declining to grant the orders sought in the appellant's application dated 25th July 2024

Key legal issues

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01

Whether the trial court properly exercised its discretion in dismissing the appellant's application to review orders closing the defence case

Holding

The trial court considered all relevant factors; the appellate court found no basis to interfere

Reasoning

The trial court considered the proceedings, the appellant's conduct, four mentions for compliance and three hearing dates at which the defendant still failed to file evidence. The appellant did not challenge any of these reasons or argue they were irrelevant, so the discretion was properly exercised and the appeal failed.

p. 16
02

Whether the appellant was denied the right to be heard

Holding

No; the record showed the appellant was given ample opportunity to participate but chose not to comply

Reasoning

The proceedings showed four mentions requiring compliance and three hearings, which the court held were more than sufficient. The appellant did not deny being given these opportunities and did not contest his presence at the hearings without filing evidence, so the claim of denial of a fair hearing was refuted by the record.

p. 16

Legal principles established

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  • An appellate court will not interfere with a discretionary decision unless the lower court misdirected itself in law, misapprehended facts, took into account irrelevant matters, failed to consider relevant matters, or the decision is plainly wrong
  • A party accorded ample opportunity to comply with court directions but who fails to do so cannot later claim denial of the right to be heard

Court orders

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  1. 1.The appeal is dismissed with costs to the respondent
  2. 2.It is so ordered

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Chief Magistrate's Court at Mumias
Mumias MCELC Case No. E039 of 2022
Jurisdiction invoked
First appellate jurisdiction over the subordinate court's ruling (Environment and Land Court Act)

Relief refused

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Setting aside the trial court's ruling and reopening the defence case with leave to file statements and documents

Appellant did not challenge the factors the trial court considered; four mentions and three hearings were sufficient opportunity

p. 16

Expunging/striking out the evidence of PW2

Appeal dismissed in its entirety; no basis found to interfere with the trial court's discretion

p. 16

Costs of the appeal paid by the respondent

Costs were instead awarded to the respondent

p. 16

Costs

Appeal dismissed with costs to the respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It is trite that an appellate court will not interfere with exercise of discretion by the trial court merely because it could have arrived at a different conclusion, had it heard the matter.
p. 12Standard for interference with discretionary decisions
Four mentions requiring compliance and three hearings were more than sufficient opportunities for the appellant to comply.
p. 16Right to be heard versus indolence
Ultimately, I find no merit in this appeal, which I hereby dismiss with costs to the respondent.
p. 16Disposition
It is so ordered.
p. 16Final orders

Issues in the judgment

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minor

Judgment delivery date printed as 2026, inconsistent with 2025 appeal and submissions

minor

Application said to seek review of orders of 21st May 2025, but orders were made 21st May 2024

minor

Appellant seeks to set aside orders 'given on 24/4/2024' though the impugned ruling was delivered 24th April 2025

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, "Moses Olando Andati v John Munyendo Muheba", Case Analysis (2026). ELC Appeal No. E033 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6069/eng@2026-09-23

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