Registered Trustees Church of God in East Africa (K) v Fredrick Maegwe Matara & 8 others [2021] KECA 915 (KLR)
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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant has satisfied the Rule 4 threshold for extension of time to file an appeal out of time
- 2.Whether the length of the delay of eleven months was inordinate
- 3.Whether the reasons for the delay were reasonable and excusable
- 4.Whether the intended appeal is arguable
- 5.Whether the respondent would suffer prejudice if the extension were granted
Key legal issues
#Length of and reason for delay in filing the appeal
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.
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.
Arguability of the intended appeal
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.
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.
Prejudice to the respondent
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.
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.
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.Applicant has fourteen (14) days of the date of the ruling to file and serve a notice of appeal
- 2.Applicant to thereafter proceed according to the law
- 3.The respondent will have costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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.
The respondent will have costs 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.
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.
Issues in the judgment
#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.