African Orthodox Church of Kenya Registered Trustees & another v Orthodox Archbishoprtc of Kenya and Irinoupolis Limited- & another (Environment & Land Case 525 of 2015) [2024] KEELC 4919 (KLR)

The court reasoned that a notice of appeal, once filed, must be taken as valid by the court affected until invalidated under Rule 86 of the Court of Appeal Rules, 2022. The Applicants' invitation for this court to declare the notice valid was therefore misconceived, since jurisdiction is donated by law and a court cannot assume jurisdiction it does not possess. The court anchored this on the Supreme Court's jurisprudence in the Interim Independent Electoral Commission and Samuel Kamau Macharia cases on the primacy of jurisdiction.

The court found the ruling of 29th February 2024 was not appealable as of right under Section 75 of the Civil Procedure Act read with Order 43 of the Civil Procedure Rules, so leave was required but never sought. Further, the underlying judgment adopted a mediation agreement consented to by both parties, and its terms were never impugned. The court concluded the Applicants were pursuing the stay for ulterior purposes, merely 'playing ping pong games or lottery' with court process.

Relying on Kenya Shell Ltd v Benjamin Karuga Kibiru and James Wangalwa v Agnes Naliaka Cheseto, the court held that substantial loss must be pleaded and substantiated by evidence. The mediation agreement and resultant judgment vested the suit properties in the 1st Plaintiff, whom the deponent of the supporting affidavit represented as Arch Bishop, making the claimed loss illogical and suggesting something ulterior. Only omnibus allegations were offered, which do not discharge the burden under Sections 107, 108 and 109 of the Evidence Act.