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ELCDismissedNot stated in the excerpt (notice of motion dated 26/10/2020)· [2021] KEELC 3991 (KLR)

Revival and Restoration International Church v Geofrey Thiong’o & 2 others [2021] KEELC 3991 (KLR)

High Court of Kenya
11 March 2021
1,310 words in judgment
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The bottom line

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The High Court threw out the church's attempt to appeal late because its lawyer's affidavit broke evidence rules, leaving the application without proof.

What this practically means

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Executive summary

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The applicant, Revival & Restoration International Church, moved the High Court by notice of motion dated 26/10/2020 seeking leave to appeal out of time against a judgment delivered on 28/8/2020 by L. L. Gicheha (Chief Magistrate) in Milimani CMCCC No 8959/2018, and a stay of execution of that judgment pending the intended appeal. The application was supported by an affidavit sworn by Mr Kiprop Chepsergon, the applicant's current advocate, who attributed the delay to the failure of the former advocates, M/s Mbiriri Ngugi & Co Advocates, to file an appeal within 30 days. The 1st and 2nd respondents opposed, contending that no instructions to appeal were evidenced, that the delay was inordinate and unexplained, that jurisdiction was never raised at trial, and that the trial court had properly found the applicant's lease to have been issued by imposters. The court framed three questions: the admissibility of the supporting affidavit, the criteria for extension of time, and the criteria for stay. Holding that the affidavit violated the mandatory requirements of Order 19 rule 3(1) of the Civil Procedure Rules because the deponent disclosed neither his authority nor the sources of his information nor the instructions alleged, the court disregarded it, applying the Court of Appeal decision in Gerphas Alphonse Odhiambo v Felix Adiego. Without that affidavit the application lacked admissible evidence; both substantive questions were answered in the negative and the notice of motion was dismissed for lack of merit on 11 March 2021.

Key legal issues

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01

Whether the supporting affidavit sworn by an advocate, who was not a party and was not on record at the material times, complied with Order 19 rule 3(1) of the Civil Procedure Rules

Holding

The affidavit violated the mandatory requirements and was disregarded

Reasoning

The deponent did not disclose the authority under which he swore the affidavit, the sources of his information, or the identity of persons who instructed the former advocates to appeal, and exhibited no such instructions. Since the exception for statements of information and belief requires disclosure of sources and grounds, the affidavit failed in all aspects and was struck out.

p. 2
02

Whether the applicant satisfied the criteria for extension of time to appeal

Holding

It did not; without the supporting affidavit there was no admissible evidence satisfying the criteria

Reasoning

Once the supporting affidavit was disregarded, nothing remained to demonstrate that the delay was explained, that the intended appeal was arguable, or that the other criteria for extension of time were met. The application was therefore unsupported and the question was answered in the negative.

p. 2
03

Whether the criteria for stay of execution pending appeal were satisfied

Holding

They were not; the question was answered in the negative for the same evidentiary reason

Reasoning

The same defective affidavit underpinned the stay prayer. With no admissible evidence, the applicant could not demonstrate substantial loss or other criteria for stay. The court noted respondents' argument that any loss was compensable and that jurisdiction and the lease's validity had been properly determined at trial, but the disposition rested on the evidentiary failure.

p. 2

Legal principles established

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  • An affidavit must be confined to facts the deponent can prove of his own knowledge; in interlocutory matters statements of information and belief are admissible only if the sources of information and grounds of belief are disclosed
  • A supporting affidavit that violates the mandatory disclosure requirements of Order 19 rule 3(1) should be disregarded, leaving the application unsupported by admissible evidence

Court orders

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  1. 1.The notice of motion dated 26/10/2020 is dismissed for lack of merit

Authorities

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Legislation

  • Civil Procedure RulesOrder 19 rule 3(1)

Cases cited (2)

  • Thuita Mwangi v Kenya Airways Ltd
    (2003) eKLR
  • Gerphas Alphonse Odhiambo v Felix Adiego
    [2006] eKLR
On appeal from
Chief Magistrate's Court, Nairobi (Milimani Commercial Courts)
CMCCC No 8959/2018
Jurisdiction invoked
Inherent jurisdiction of the High Court to extend time and grant stay pending appeal (application for leave to appeal out of time from a magistrates' court decision)

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, "Revival and Restoration International Church v Geofrey Thiong’o & 2 others [2021] KEELC 3991 (KLR)", Case Analysis (2021). Not stated in the excerpt (notice of motion dated 26/10/2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3991/eng@2021-03-11

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.