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ELCAllowedRuling in respect of Notice of Motion dated 11th May, 2023 (arising from Nakuru CM. Land Dispute No. 1 of 2000)· [2024] KEELC 493 (KLR)

Full Gospel Church of Kenya v Kamau & 2 others (Miscellaneous Application E25 of 2023) [2024] KEELC 493 (KLR)

High Court of Kenya
5 February 2024
3,939 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a ruling of the High Court at Nakuru (L. A. Omollo, J) on the Applicant's Notice of Motion dated 11th May, 2023, brought under Sections 79G and 95 of the Civil Procedure Act and Order 51(1) of the Civil Procedure Rules, seeking leave and extension of time to appeal out of time against a ruling delivered on 23rd March, 2023 by Honourable B. Ochieng in Nakuru CM. Land Dispute No. 1 of 2000. The dispute's background was a Bahati Land Dispute Tribunal award adopted as a court order on 14th February, 2005, awarding the Applicant parcel Bahati/Kabatini Block 1/1405, and a subsequent unsuccessful enforcement application. The Applicant deposed that it learnt of the ruling only on 2nd May, 2023, partly because its advocate was away on a personal matter for two weeks. The Respondents opposed, contending notice of the ruling was posted on the public notice board, that the delay was unexplained and inordinate, and that the intended appeal was not arguable. The court framed two issues: whether to enlarge time, and costs. Relying on Leo Sila Mutiso and Daphne Parry, the court found the 18-day delay not prejudicial, held that notice of a judgment delivered on notice should be sent directly to litigants or advocates in addition to a notice-board posting, and held that a party should not be denied the right to ventilate its claim. The court allowed the application, granting leave to appeal out of time with the Memorandum of Appeal to be filed and served within 10 days, failing which the leave would stand vacated, and ordered costs of the application to be in the cause.

Key legal issues

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01

Whether the court should enlarge time to file an appeal out of time under Section 79G of the Civil Procedure Act

Holding

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.

Reasoning

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.

p. 8
02

Costs of the application

Holding

Costs were ordered to be in the cause rather than awarded to either party.

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 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. 2.The Memorandum of Appeal shall be filed and served within 10 days from the date hereof.
  3. 3.In default of (b) above, the orders for leave in (a) shall stand vacated.
  4. 4.The costs of this application shall be in cause.

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Civil Procedure ActSection 95
  • Civil Procedure ActSection 27
  • Civil Procedure RulesOrder 51(1)
  • Civil Procedure RulesOrder 50 Rule 6
  • Constitution of KenyaArticle 169
  • Magistrates' Courts Act

Cases cited (12)

  • Charles N. Ngugi Vs ASL Credit Limited
    [2022] eKLR
  • Thuita Mwangi Vs Kenya Airways Ltd
    [2003] eKLR
  • Stecol Corporation Limited Vs Susan Awuor Mudemb
    [2021] eKLR
  • MFI Document Solutions Ltd Vs Paretto Printing Works Limited
    [2021] eKLR
  • Daphne Parry Vs Murray Alexander Carson
    [1963] EA 546
  • First American Bank of Kenya Ltd Vs Gulab P. Shah & 2 others
    Nairobi (Milimani) HCCC No 2255 of 2000 (2002) 1 EA 65
  • Susan Ogutu Oloo & 2 others Vs Doris Odindo Omolo
    [2019] eKLR
  • Republic Vs Rosemary Wairimu Munene, Ex-parte Applicant Vs Ihururu Dairy Farmers Co-operative Society Ltd
  • Mbukoni Services Limited & another Vs Mutinda Reuben Nzili & 2 others
    [2021] eKLR
  • Leo Sila Mutiso Vs Rose Hellen Wangari Mwangi
    (Civil Application No Nai 255 of 1997) (unreported)
  • Samvir Trustee Limited Vs. Guardian Bank Limited
    Nairobi (Milimani) HCCC 795 of 1997
  • Hussein Janmohamed & Sons Vs Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
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

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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, "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.