Registered Trustees of Church of God in East Africa (K) v Matara & 8 others
The bottom line
#Kenya's Court of Appeal reinstated a church's land case, ruling it was dismissed without proper service of the dismissal application.
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 ELC properly exercised its discretion in dismissing the appellant's application for reinstatement of its suit
- 2.Whether the respondents' application dated 26th May 2017 seeking dismissal of the suit was properly served on the appellant's advocates on record
- 3.Whether there were justifiable grounds warranting interference with the trial court's exercise of discretion
Key legal issues
#Whether the ELC properly exercised its discretion in dismissing the application for reinstatement
The ELC erred by failing to consider two material factors on record: the irregular and unclear service of the dismissal application, and the fact that the firm served (Mbichiri & Co. Advocates) was not on record for the appellant.
The Court perused the ELC record and found active proceedings from 2012 to 2013 and subsequent steps to fix the suit for hearing, with adjournments some granted at the respondents' request. The affidavit of service showed inconsistencies in the date and party served, and it was uncontroverted that Mbichiri & Co. Advocates were served though not on record. The trial judge ignored these factors and wrongly branded the appellant's averments as speculative despite their being based on the affidavit of service itself.
Whether the appellant was denied a fair hearing when its suit was dismissed
The findings on defective service established that the appellant was not aware of the dismissal application, disposing of the argument that it failed to respond to it.
The appellant's averments regarding lack of service were grounded in the process server's own affidavit of service, which the ELC failed to consider. Having demonstrated it was not served, the appellant could not be faulted for not filing a response or attaching one to its reinstatement application. The dismissal without proper service offended the audi alteram partem principle invoked under Articles 47 and 50 of the Constitution.
Whether the respondents' default-judgment authorities were applicable
The authorities on setting aside default judgments, including the requirement to show a defence on merit, were inapplicable because the suit was dismissed for want of prosecution, not pursuant to a default judgment.
The Court distinguished the respondents' submissions on setting aside default orders, holding that reinstatement of a suit dismissed for want of prosecution engages different legal considerations, namely the Ivita v Kyumbu test of whether the delay is prolonged and inexcusable and whether justice can nonetheless be done. The defence-on-merit requirement belongs to default judgment applications and had no purchase here.
Legal principles established
#- An appellate court may interfere with a trial court's discretionary decision where the judge misdirected himself in law, misapprehended the facts, took into account irrelevant considerations, failed to take account of relevant considerations, or where the decision is plainly wrong.
- A trial court has power under Order 12 Rule 7 of the Civil Procedure Rules to reinstate a suit that has been dismissed, and under Order 17 Rule 2 to dismiss a suit where no step has been taken for one year.
- Where a party demonstrates it was not served with an application for dismissal, the failure to file a response to that application cannot be held against it.
- The legal considerations applicable to setting aside a judgment entered in default do not apply to reinstatement of a suit dismissed for want of prosecution.
Court orders
#- 1.Appeal allowed
- 2.Ruling delivered on 25th July 2019 by the ELC at Busia (A. K. Kaniaru J) in Bungoma ELC Case No. 198 of 2014 set aside
- 3.Appellant's application dated 20th July 2018 allowed
- 4.Appellant's suit in Bungoma ELC Case No. 198 of 2014 reinstated for hearing
- 5.The reinstated suit to be heard on a priority basis
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Busia
- Busia ELC No. 198 of 2014 (also referred to as Bungoma ELC Case No. 198 of 2014)
- Jurisdiction invoked
- First appellate jurisdiction over the Environment and Land Court (ruling in an application to set aside dismissal and reinstate a suit)
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.
We therefore find that there are justifiable grounds that warrant our interference with the learned trial Judge's exercise of discretion and we accordingly allow this appeal and set aside the ruling delivered on 25th July 2019 by the ELC at Busia (A. K. Kaniaru J) in Bungoma ELC Case No. 198 of 2014 , and allow the appellant's application dated 20th July 2018 that was filed therein.
The result is that the appellant's suit in Bungoma ELC Case No. 198 of 2014 is reinstated for hearing. We further order that the said suit be heard on priority basis.
It is also our view that the service that was effected of the respondents' application dated 26th May 2017 was not clear and irregular in terms of the date of service and the party served.
The Court of Appeal will not interfere with a discretionary decision of the judge appealed from simply on the ground that its members, if sitting at first instance, would or might have given different weight to that given by the judge to the various factors in the case.
It is notable that the setting aside of the trial Court's orders and reinstatement orders sought by the appellant in this appeal arose from dismissal of a suit for want of prosecution, not from judgment entered in default in which different legal considerations apply
Issues in the judgment
#Inconsistent case number for the decision appealed from
Affidavit of service chronology impossible - service on 1.1.17 of an application dated 26.5.17
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Registered Trustees of Church of God in East Africa (K) v Matara & 8 others", Case Analysis (2026). Civil Appeal E025 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2024/eng@2026-07-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.