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Court of AppealDismissedCivil Application No. 54 of 2016

Holy Redeemed Apostolic Ministries International v New Spring of Life Ministries [2016] KECA 6 (KLR)

Court of Appeal of Kenya
16 December 2016
1,087 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal refused to restore a church's dismissed appeal because the restoration application was filed 84 days late under Rule 102(3).

What this practically means

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Executive summary

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The applicant, Holy Redeemed Apostolic Ministries International, moved the Court of Appeal at Kisumu by Notice of Motion dated 14th July 2016 seeking to set aside the court's order of 21st April 2016 dismissing its Civil Appeal No. 58 of 2015 (arising from Environment and Land Case No. 6 of 2015 at Busia) for non-attendance of the appellant and its counsel. The applicant attributed the non-attendance to an office clerk's failure to diarise the hearing date due to illness, urged that the appeal raised triable issues, offered thrown-away costs and an apology. The respondent opposed, contending the application was incompetent because it was filed out of time under rule 102(3) of the Court of Appeal Rules, and relied on Charles Alexander Kiai v Frasia Wangui Gicheru. The court held that since the applicant's counsel had been served with and acknowledged the hearing notice, the proviso to rule 102(3) did not apply and time ran from the date of dismissal, not from when counsel learnt of it. The application, filed 84 days after dismissal, was well outside the 30-day window, and the delay was inordinate and unexplained. The court held its hands were tied and struck out the application with costs to the respondent. The effect is that the dismissal of the appeal for want of prosecution stands and the appeal is not restored for hearing.

Questions the Court framed

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

  1. 1.Whether the application to set aside the order dismissing the appeal was filed within the 30-day period prescribed by rule 102(3) of the Court of Appeal Rules
  2. 2.Whether the proviso in rule 102(3) for a party who was not served with the hearing notice applied, such that time would run from when counsel learnt of the dismissal
  3. 3.Whether the inordinate and unexplained delay in filing the application could be excused in the interest of justice

Key legal issues

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01

Computation of time under rule 102(3) where the hearing notice was served

Holding

The argument that time began to run from when counsel learnt of the dismissal was rejected; because counsel was served with and acknowledged the hearing notice, the proviso to rule 102(3) was inapplicable and time ran from the date of dismissal.

Reasoning

The court found that counsel for the applicant was served with the hearing notice on 15th March and its receipt was acknowledged. Rule 102(3) only extends time for a party who should have been served but was not. Since service was effected, the extended trigger did not apply, and the 30 days ran from the date of dismissal on 21st April 2016 regardless of counsel's actual awareness of the outcome.

p. 2
02

Whether the application was filed out of time

Holding

Yes. The appeal was dismissed on 21st April 2016 and the application was filed on 14th July 2016, a period of 84 days, well outside the 30-day period specified by the rules.

Reasoning

The court computed the period between dismissal and filing as 84 days, which was plainly beyond the 30-day statutory window. The applicant offered no explanation for this delay, which the court characterized as inordinate given the short time frame prescribed. The clerk's illness and failure to diarise the hearing date explained the non-attendance, not the delay in filing the restoration application itself.

p. 2

Legal principles established

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  • An application for restoration of an appeal dismissed for non-attendance under rule 102(3) must be made within thirty days of the dismissal; where counsel was served with the hearing notice, the proviso extending time to a party's first hearing of the decision does not apply.
  • The 30-day limitation in rule 102(3) is mandatory, and an application filed outside it without explanation for the delay must be struck out.

Court orders

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  1. 1.The application dated 14th July 2016 to set aside the order of 21st April 2016 dismissing Kisumu Civil Appeal No. 58 of 2015 was struck out
  2. 2.Costs of the application awarded to the respondent

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya at Busia
Environment and Land Case No. 6 of 2015
Jurisdiction invoked
Rule 102(1) and (3) of the Court of Appeal Rules - application to set aside the Court of Appeal's order dismissing Civil Appeal No. 58 of 2015 for want of prosecution

Relief refused

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Setting aside and/or varying the order of 21st April 2016 dismissing the appeal for want of prosecution

The application was filed 84 days after the dismissal, far outside the 30-day period in rule 102(3), and no explanation was offered for the delay; the proviso for non-service was inapplicable because counsel was served with the hearing notice

p. 3

Costs

The application was struck out 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.

on account of the service and acknowledgment of receipt of the hearing notice, the provision to rule 102 (3) was inapplicable to the circumstances of this case.
p. 2Rule 102(3) proviso inapplicable where hearing notice was served
The period between dismissal and filing of the application is computed as 84 days. Clearly, this was well outside of the 30 days period specified by the rules.
p. 2Application filed out of the 30-day period under rule 102(3)
We were provided with no explanation as to the reason for the delay, which was inordinate bearing in mind the time frame specified by the rules.
p. 2Inordinate and unexplained delay
In the circumstances, we find that our hands are tied, and we must strike out the application with costs to the respondent. Orders accordingly.
p. 3Final orders - application struck out with costs

Issues in the judgment

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minor

The judgment is internally inconsistent on the date of service of the hearing notice, stating service on 15th March 2015 in one passage and receipt on 15th March 2016 in another.

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, "Holy Redeemed Apostolic Ministries International v New Spring of Life Ministries [2016] KECA 6 (KLR)", Case Analysis (2016). Civil Application No. 54 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/6/eng@2016-12-16

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