Full Gospel Church of Kenya v Kamau & 2 others (Miscellaneous Application E25 of 2023) [2024] KEELC 493 (KLR)
The bottom line
#Kenya's High Court let a church appeal late because the court never sent it direct notice of the ruling—only a notice-board posting.
What this practically means
#Executive summary
#Key legal issues
#Whether the court should enlarge time to file an appeal out of time under Section 79G of the Civil Procedure Act
The court found the applicant deserving of the discretionary extension: the delay was only 18 days past the statutory period, the applicant acted promptly upon learning of the ruling, no prejudice was shown, and a party should not be denied the right to appeal.
The court adopted the Leo Sila Mutiso principles: length of delay, reason for delay, chances of success and prejudice. Ruling was delivered 23rd March 2023; the applicant learnt of it on 2nd May 2023 and filed the application on 11th May 2023, an 18-day lapse which the court found not prejudicial. The court also held that posting notice on a public notice board alone is insufficient; notice ought to go directly to litigants or advocates, and merit-based submissions by respondents should not deny a party the right to appeal.
Costs of the application
Costs were ordered to be in the cause rather than awarded to either party.
The court noted the general rule in Section 27 of the Civil Procedure Act that costs follow the event, but in the disposition directed that the costs of the application be in the cause.
Legal principles established
#- Extension of time is discretionary and must be exercised judiciously, considering the length of and reason for delay, chances of the appeal succeeding and prejudice to the respondent.
- Notice of a judgment delivered 'on notice' should be sent to litigants or their advocates directly, in addition to a notice board posting.
- A party should not be denied the right to ventilate its claim and exhaust legal avenues.
Court orders
#- 1.Leave is hereby granted to the Applicant to file the Appeal out of time in respect of the ruling delivered on 23rd March, 2023 in Nakuru CM. Land Dispute No. 1 of 2000; Full Gospel Church Of Kenya Vs John Kirubi & 2 Others.
- 2.The Memorandum of Appeal shall be filed and served within 10 days from the date hereof.
- 3.In default of (b) above, the orders for leave in (a) shall stand vacated.
- 4.The costs of this application shall be in cause.
- On appeal from
- Chief Magistrate's Court, Nakuru
- Nakuru CM. Land Dispute No. 1 of 2000
- Jurisdiction invoked
- Sections 79G and 95 of the Civil Procedure Act and Order 51(1) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Full Gospel Church of Kenya v Kamau & 2 others (Miscellaneous Application E25 of 2023) [2024] KEELC 493 (KLR)", Case Analysis (2024). Ruling in respect of Notice of Motion dated 11th May, 2023 (arising from Nakuru CM. Land Dispute No. 1 of 2000). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/493/eng@2024-02-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.