Pastor Jack Calistus Atemba (suing As A Trustee and Overseer Pastor of Embassy of Faith Worldwide Church) v Damani Drums Limited & 1 other
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
#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
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.