Sister Mary Dominic Savio Akoth (on behalf of Franciscan Sisters of Saint Joseph (Asumbi) now Suing through next friend Sister Mary Goretty Achieng) v Tom K'opere trading as T.O. K'opere & Co. Advocates & another
The bottom line
#Kenya's Court of Appeal gave a religious congregation a second chance to appeal a land case, ruling its 40-day delay was honestly explained and harmless.
What this practically means
#Executive summary
#Key legal issues
#Authority of the applicant to bring the application
The objection that FSJ as a body corporate should have applied was rejected because the ELC proceedings were brought against Sister Akoth for and on behalf of FSJ, not against FSJ as a body corporate.
The court examined the ELC pleadings and found the applicant was sued as a defendant in her capacity as trustee of FSJ, the substantive party. Since the problem originated in how FSJ was sued, it would be unjust to prevent another trustee, Sister Achieng, from acting for FSJ when Sister Akoth was unwell. Proof of her trusteeship, appointed May 2, 2018, was furnished.
Date the applicant first learnt of the judgment
The court accepted the applicant's evidence that FSJ first learnt of the judgment on June 22, 2022, corroborated by SMS messages to its advocate, rather than June 24, 2022 as the respondents contended.
The supplementary affidavit fixed the date at June 22, 2022, supported by SMS messages of that date asking the advocate for help about an eviction order. Although the referenced mpesa transaction was not attached, the court found the deponent believable on the strength of the SMS evidence, rejecting the respondents' inference from the June 23 letter.
Whether the delay was inordinate and excusable
A delay of about 40 days from the notice-of-appeal deadline, with action taken 18 days after learning of the judgment, was not inordinate and was credibly explained by the former advocate's illness and the need to engage new advocates.
Applying the Fakir Mohamed factors, the court found a plausible explanation: the applicant's former advocate had been unwell since April 2022, corroborated by an SMS from the advocate, and the medical report from Equity Afia did not contradict that evidence. The respondents' lengthy replying affidavit revealed no prejudice from the enlargement.
Legal principles established
#- The power to enlarge time for lodging a notice of appeal in the Court of Appeal is anchored specifically in rule 4 of the Court of Appeal Rules 2010, and its exercise is guided by the Fakir Mohamed principles.
- Where a party is sued through a trustee, another trustee of the same body may properly step in and bring an application on the body's behalf when the named trustee is unable to act.
Court orders
#- 1.The notice of motion dated July 10, 2022 is allowed
- 2.The notice of appeal shall be filed and served within 14 days of the ruling
- 3.The record of appeal shall be filed and served within 60 days thereafter
- 4.Costs shall abide the outcome of the appeal
- On appeal from
- Environment and Land Court of Kenya at Kisumu
- KSM. ELC No. 64 of 2019
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules 2010 (invoked alongside sections 3A and 3B of the Appellate Jurisdiction Act and article 159(2) of the Constitution)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sister Mary Dominic Savio Akoth (on behalf of Franciscan Sisters of Saint Joseph (Asumbi) now Suing through next friend Sister Mary Goretty Achieng) v Tom K'opere trading as T.O. K'opere & Co. Advocates & another", Case Analysis (2022). Civil Application E093 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1413/eng@2022-12-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.