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Court of AppealDismissedCivil Application (Nairobi)· [2026] KECA 1015 (KLR)

Pastor Jack Calistus Atemba (suing As A Trustee and Overseer Pastor of Embassy of Faith Worldwide Church) v Damani Drums Limited & 1 other

Court of Appeal
29 May 2026
1,023 words in judgment
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The bottom line

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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

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Executive summary

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The applicant, Pastor Jack Calistus Atemba, sued Damani Drums Limited and Hean Textile Industries Limited in ELC Case No. E245 of 2021 seeking eviction and injunctions over plots within LR Embakasi 9042/147 and 9042/148. Judgment was entered after formal proof, but was vacated by consent on 14th November 2023, and the respondents were allowed to defend and counterclaim. On 16th September 2024, after neither the applicant nor his counsel attended a hearing date taken by consent, the applicant's case was dismissed and judgment entered on the counterclaim, including declarations over the properties and Kshs.5,000,000 each in damages for trespass. The applicant filed a notice of appeal and moved the Court of Appeal under Rule 5(2)(b) for conservatory orders staying implementation of that judgment pending appeal. The Court, in a single judgment of the bench of Karanja, M'inoti and Nyamweya JJA, held that the intended appeal targeted the judge's discretion to proceed in the applicant's absence, but the hearing date had been taken by consent, no reasons for non-attendance were offered, and the trial court had not been moved to set aside the judgment. Restating the conjunctive Rule 5(2)(b) test, it found the appeal not arguable and dismissed the application with costs to the respondents.

Key legal issues

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01

Whether the applicant demonstrated an arguable appeal for purposes of Rule 5(2)(b)

Holding

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

Reasoning

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.

p. 3
02

Proper procedural route where a party's case is dismissed for non-attendance

Holding

The applicant should have sought setting aside of the judgment in the trial court before appealing

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.Application dismissed with costs to the respondents
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)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Pastor Jack Calistus Atemba (suing As A Trustee and Overseer Pastor of Embassy of Faith Worldwide Church) v Damani Drums Limited & 1 other", 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.