Atemba (Suing as a Trustee and Overseer Pastor of Embassy of Faith Worldwide Church) v Damani Drums Limited & another (Civil Application E498 of 2024) [2026] KECA 1015 (KLR)
The bottom line
#The Court of Appeal refused to halt a Kshs.10 million judgment against a pastor, ruling that skipping a court hearing he had agreed to gave him no arguable appeal.
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 demonstrated an arguable appeal
- 2.Whether, if the appeal succeeds, it would be rendered nugatory absent conservatory orders staying the judgment of 16th September 2024
Key legal issues
#Whether the applicant demonstrated an arguable appeal for purposes of Rule 5(2)(b)
The application fails at the threshold of arguability; no appealable grievance was shown against the judge's discretion to proceed in the applicant's absence after a consent-taken hearing date
The intended appeal targets the trial judge's discretion to proceed in the applicant's absence, yet the hearing date had been taken by consent and no reasons for non-attendance were offered before the Court. The trial court was never moved to set aside the judgment so it could assess whether proceeding was justified. Absent such reasons, no reasonably arguable appellate point was disclosed, so the first conjunctive Rule 5(2)(b) requirement failed.
Proper procedural route where a party's case is dismissed for non-attendance
The applicant should have sought setting aside of the judgment in the trial court before appealing
The Court observed that the trial judge's discretion to proceed in the applicant's absence was never challenged before the trial court itself, and no reasons for absence were given there or before the appellate court. The correct course was to seek setting aside so the judge could evaluate the reasons, and only then appeal if dissatisfied. This procedural default weighed against finding an arguable appeal.
Legal principles established
#- The two requirements for a Rule 5(2)(b) application - an arguable appeal and that the appeal will be rendered nugatory without the orders sought - are conjunctive and both must be proved
- A party whose case was dismissed for non-attendance on a date taken by consent ought first to apply to the trial court to set aside the judgment before resorting to appeal
Court orders
#- 1.Application dismissed with costs to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court
- ELC Case No. E245 of 2021
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (interlocutory conservatory orders pending appeal)
Relief refused
#Conservatory orders staying implementation of the judgment and orders dated 16th September 2024 pending the hearing and determination of the appeal
The applicant failed to demonstrate that he has an arguable appeal, the first conjunctive requirement under Rule 5(2)(b)
Costs
Application dismissed with costs to the respondents
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.
For an application under Rule 5(2)(b) of the Court of Appeal Rules to succeed, the applicant must demonstrate that they have an arguable appeal. Only after satisfying that requirement will they then need to demonstrate to the Court that if the orders sought are not granted, their appeal or intended appeal, were it too succeed, will be rendered moot, or useless.
The two requirements are conjunctive and both must be proved. Failure to prove one of them will be help.
We agree that the applicant ought to have applied for the setting aside of the judgment before the trial court so that they could give their reasons there, and if dissatisfied with the ruling, move to this Court on appeal.
In our view, the applicant has failed to demonstrate that he has an arguable appeal. Accordingly, we find his application devoid of merit and dismiss it with costs to the respondents.
Issues in the judgment
#Typographical/clarity error in the judgment text
Typographical error in the statement of the Rule 5(2)(b) test
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Atemba (Suing as a Trustee and Overseer Pastor of Embassy of Faith Worldwide Church) v Damani Drums Limited & another (Civil Application E498 of 2024) [2026] KECA 1015 (KLR)", Case Analysis (2026). Civil Application (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1015/eng@2026-05-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.