Revival and Restoration International Church v Geofrey Thiong’o & 2 others [2021] KEELC 3991 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#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
The affidavit violated the mandatory requirements and was disregarded
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.
Whether the applicant satisfied the criteria for extension of time to appeal
It did not; without the supporting affidavit there was no admissible evidence satisfying the criteria
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.
Whether the criteria for stay of execution pending appeal were satisfied
They were not; the question was answered in the negative for the same evidentiary reason
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.
Legal principles established
#- 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
#- 1.The notice of motion dated 26/10/2020 is dismissed for lack of merit
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.