Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealAllowedCivil Application No. 67 of 2020

Registered Trustees Church of God in East Africa (K) v Fredrick Maegwe Matara & 8 others [2021] KECA 915 (KLR)

Court of Appeal of Kenya
5 March 2021
1,746 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

The Court of Appeal gave a church extra time to appeal an eleven-month-old land ruling, ruling the delay excusable and the appeal worth hearing.

What this practically means

#

Executive summary

#
This is a single-judge (in chambers) ruling of the Court of Appeal, Kisumu, by Nambuye, JA, on a notice of motion dated 25 June 2020 under sections 3(2), 3A and 3B of the Appellate Jurisdiction Act and Rule 4 of the Court of Appeal Rules, seeking extension of time to appeal out of time against the ruling of Kaniaru, J., delivered on 25 July 2019 in Busia ELC No. 198 of 2014, in which the ELC declined to restore the applicant's suit dismissed for want of prosecution. The applicant explained that the ruling was delivered in its absence; its advocates learned of it only on 26 August 2019 when served with a bill of costs; a governing committee resolution of 12 September 2019 was needed before instructing counsel; a mistaken application for leave to appeal in the ELC was struck out in March 2020 for want of jurisdiction; and the Covid-19 pandemic intervened. The respondents opposed, contending the eleven-month delay was inordinate and prejudicial. Applying the Salat principles, the court held the delay not so inordinate as to disentitle the applicant, the reasons plausible, reasonable and excusable, the intended appeal arguable, and any prejudice compensable by costs. The application was allowed: the applicant was given fourteen days to file and serve a notice of appeal and to thereafter proceed according to law, with costs of the application to the respondent.

Questions the Court framed

#

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

  1. 1.Whether the applicant has satisfied the Rule 4 threshold for extension of time to file an appeal out of time
  2. 2.Whether the length of the delay of eleven months was inordinate
  3. 3.Whether the reasons for the delay were reasonable and excusable
  4. 4.Whether the intended appeal is arguable
  5. 5.Whether the respondent would suffer prejudice if the extension were granted

Key legal issues

#
01

Length of and reason for delay in filing the appeal

Holding

An eleven-month delay was not so inordinate as to disentitle the applicant to exercise an appellate right, given that the ruling was delivered in the applicant's absence and time as of right had lapsed before the applicant learned of it.

Reasoning

The court applied the threshold from George Mwende Muthoni and Aviation Cargo Support, where longer or unexplained delays attracted refusal. Here the delay of eleven months was common ground, but the primary reason - that the impugned ruling was delivered in the applicant's absence and they learned of it only when served with a bill of costs - was uncontroverted and therefore plausible and reasonable. The mistaken resort to the ELC for leave to appeal, being counsel's error in seeking relief from a wrong forum, was also excusable.

p. 2
02

Arguability of the intended appeal

Holding

The intended appeal, challenging the ELC's discretionary refusal to restore a suit dismissed for want of prosecution, was arguable even if it might not ultimately succeed.

Reasoning

The intended appeal targets the ELC's exercise of discretion in declining to set aside dismissal of the suit for want of prosecution. The court held that whether the lower court exercised its mandate judiciously is a question that is arguable notwithstanding that it may not ultimately succeed, and that an arguable appeal is one warranting a response and interrogation by the Court, not one guaranteed to succeed.

p. 3
03

Prejudice to the respondent

Holding

The respondent's complaint of incurring costs defending numerous offshoot litigations could be compensated by an order for costs, so no disabling prejudice was established.

Reasoning

The respondent argued prejudice from funding defences of numerous applications initiated by the applicant using public-collected funds, and urged that litigation pending since 2012 should be brought to an end. The court found the costs complaint compensable by a costs order, leaving no substantial prejudice, and was satisfied the applicant met the Rule 4 threshold.

p. 3

Legal principles established

#
  • Extension of time is not a right of a party but an equitable remedy available to a deserving party at the discretion of the court, to be assessed on a case-by-case basis against the Salat factors
  • An arguable appeal need not be one that will succeed; it suffices that it warrants a response and interrogation by the Court

Court orders

#
  1. 1.Applicant has fourteen (14) days of the date of the ruling to file and serve a notice of appeal
  2. 2.Applicant to thereafter proceed according to the law
  3. 3.The respondent will have costs of the application

The bench

#

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

majority

Wrote the judgment

On appeal from
Environment and Land Court
Busia ELC No. 198 of 2014
Jurisdiction invoked
Sections 3(2), 3A and 3B of the Appellate Jurisdiction Act, Cap 9, and Rule 4 of the Court of Appeal Rules

Quotable passages

#

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

Applicant has fourteen (14) days of the date of this ruling to file and serve a notice of appeal.
p. 3Final orders - extension of time granted
The respondent will have costs of the application.
p. 3Costs of the application
I am satisfied a period of eleven (11) months delay is not so inordinate as to disentitle a party an opportunity to exercise an appellate right.
p. 2Inordinate delay
In law an arguable appeal is not one that must succeed but one that warrants a response from the opposite party and interrogation by the Court.
p. 3Arguability of intended appeal

Issues in the judgment

#
minor

The ruling is dated and delivered at Nairobi though the coram places the Court at Kisumu

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Registered Trustees Church of God in East Africa (K) v Fredrick Maegwe Matara & 8 others [2021] KECA 915 (KLR)", Case Analysis (2021). Civil Application No. 67 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/915/eng@2021-03-05

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