Registered Trustees of Church of God in East Africa (K) v Matara & 8 others (Civil Appeal E025 of 2026) [2026] KECA 2024 (KLR) (17 July 2026) (Judgment)

Page 1 of 12Judgment-KAK Civil Appeal No E025 of 2026 (Formerly KSM Civil Appeal No E107 REPUBLIC OF KENYA IN THE COURT OF APPEAL AT KAKAMEGA (CORAM: NYAMWEYA, R. NGETICH & RADIDO S.O. JJ.A) CIVIL APPEAL NO. E025 OF 2026 (FORMERLY KISUMU CIVIL APPEAL NO. E107 OF 2021) BETWEEN THE REGISTERED TRUSTEES OF CHURCH OF GOD IN EAST AFRICA (K) ........................................................................ APPELLANT AND FREDRICK MAEGWE MATARA....................... 1ST RESPONDENT EMMANUEL OTIANGALA...............................2ND RESPONDENT BOAZ OTANGA............................................ 3RD RESPONDENT NEWTON ANUNDA....................................... 4TH RESPONDENT DEBORA OMUKOKO..................................... 5TH RESPONDENT ROSE NABUTO............................................ 6TH RESPONDENT JARED OTENYI.............................................7TH RESPONDENT JOSEPHINE OYARO...................................... 8TH RESPONDENT JANE AMUKOA............................................ 9TH RESPONDENT (An appeal from the Ruling of the Environment and Land Court at Busia (A. K. Kaniaru J.) delivered on 25th July 2019 in Page 2 of 12Judgment-KAK Civil Appeal No E025 of 2026 (Formerly KSM Civil Appeal No E107 Busia ELC No. 198 of 2014) ***************************** JUDGMENT OF THE COURT 1. The Registered Trustees of Church of God in East Africa (K), the appellant herein, filed an application dated 20 th July 2018 in the Environment and Land Court (“the ELC”) at Busia in which it sought the setting aside of an Page 3 of 12Judgment-KAK Civil Appeal No E025 of 2026 (Formerly KSM Civil Appeal No E107 order made by the ELC on 25th July 2017 dismissing the suit it had filed therein, being Bungoma ELC Case No. 198 of 2014, and the reinstatement of the said suit for hearing. The appellants alleged that that the respondents' application dated 26th May 2017 that had sought the dismissal of the suit for want of prosecution and/ or non-compliance with court orders, and a declaration that the suit against the 2nd respondent had abated, had not been served upon the appellant's advocates on record, Messrs Osambwa Sandys & Co. Advocates, and was instead served upon Messrs Mbichiri & Co. Advocates, who were not on record for the appellant. The appellant also contended that the suit was dismissed without affording it an opportunity to be heard, contrary to Articles 47 and 50 of the Constitution of Kenya and section 4 of the Fair Administrative Action Act, No. 4 of 2015. 2. Upon hearing the parties, the ELC (A. K. Kaniaru J.) delivered a ruling on 25 th July 2019 in which the appellant's application dated 20th July 2018 was dismissed for lack of merit after the trial Judge reached the conclusion that the respondents' application dated 26 th May 2017 was served upon the appellant who did not respond to it, and the appellant had brought the misfortune upon itself by its inaction. The ruling by the ELC of 25th July 2019 is the subject of the instant appeal before this Court, in which the appellant has raised six grounds of appeal in its Memorandum of Appeal dated 23rd June 2021, namely: Page 4 of 12Judgment-KAK Civil Appeal No E025 of 2026 (Formerly KSM Civil Appeal No E107 1) The Learned Trial Judge erred in Law and in fact in dismissing the Notice of Motion dated 20th July 2018 despite uncontroverted facts that the main suit was dismissed in the absence of the Plaintiff (now Appellant). 2) The Learned Judge erred in law in going against the principle of Natural Justice that “no man should be condemned unheard”. 3) The Learned Trial Judge erred in law in not considering sections 1A, 1B, and 3A of the Civil Procedure Act, Articles 47 (1) and 50 (1) of the Constitution and Section 4 of the Fair Administrative Actions Act, No. 4 of 2015, and if the Learned Judge did, he misapprehended and/ or declined to give effect to the said Articles and sections to the detriment of the Appellant. 4) The Learned Judge erred in law in not finding that matters should be heard on merit and not on technicalities and that no prejudice would be suffered by the Respondents in setting aside the dismissal order. 5) The decision was arrived at on consideration, to the extent that this was done of wrong principles of law. 6) The decision was against the weight of evidence and contrary to well laid out and well settled principles of law on Natural Justice. 3. We heard the appeal on this Court’s virtual platform on 29 th April 2026. Learned counsel, Mr. George Mbiyu appeared for the appellant, while learned counsel Mr. Gabriel Fwaya appeared for the respondents, and both counsel highlighted their respective submissions dated 27 th September 2025 and 28th October 2025. In commencing the determination of this Appeal, we are mindful that the duty of this Court as a first appellate court, as set out in the decision of Selle and another vs Associated Motor Boat Co. Ltd & Others (1968) EA 123 is to reconsider the evidence, evaluate it, Page 5 of 12Judgment-KAK Civil Appeal No E025 of 2026 (Formerly KSM Civil Appeal No E107 and draw our conclusion of facts and law, and we will only depart from the findings by the trial court if they were not based on evidence on record; Page 6 of 12Judgment-KAK Civil Appeal No E025 of 2026 (Formerly KSM Civil Appeal No E107 where the said court is shown to have acted on the wrong principles of law as was held in Jabane vs Olenja (1986) KLR 661, or where its discretion was exercised injudiciously as was held in Mbogo & Another vs Shah (1968) EA. 93. 4. The main issue before us in this regard is whether the ELC properly exercised its discretion in dismissing the appellant’s application for reinstatement of its suit. The grounds that warrant our interference with the trial court’s exercise of discretion were set out in the case of United India Insurance Co. Ltd, Kenindia Insurance Co Ltd & Oriental Fire & General Insurance Co. Ltd vs East African Underwriters (Kenya) Ltd [1985] eKLR as follows: “The Court of Appeal will not interfere with a discretionary decision of the judge appealed from simply on the ground that its members, if sitting at first instance, would or might have given different weight to that given by the judge to the various factors in the case. The Court of Appeal is only entitled to interfere if one or more of the following matters are established: first, that the judge misdirected himself in law; secondly, that he misapprehended the facts; thirdly, that he took account of considerations of which he should not have taken account; fourthly, that he failed to take account of considerations of which he should have taken account, or fifthly, that his decision, albeit a discretionary one, is plainly wrong.” 5. The appellant’s counsel in this respect reiterated that the Page 7 of 12Judgment-KAK Civil Appeal No E025 of 2026 (Formerly KSM Civil Appeal No E107 application for dismissal was improperly served upon Mbichiri & Co. Advocates, who were not the counsel on record, rather than the firm of Osambwa Sandys Page 8 of 12Judgment-KAK Civil Appeal No E025 of 2026 (Formerly KSM Civil Appeal No E107 & Co. Advocates. Furthermore, the appellant’s counsel did not receive notice regarding the date of the suit's dismissal, and maintained that the delay in prosecution was excusable and that justice would be best served by reinstating the suit. While citing the decision by this Court in Kurji & 4 others v Kurji & 3 others (2024) KECA 882 (KLR) , the counsel argued that trial courts have wide, discretionary power to reinstate dismissed suits to avoid injustice, provided this discretion is exercised judicially, and urged this court to adopt a broad equity approach, asserting that mistakes by legal counsel should not permanently bar a party from accessing justice, and that any prejudice to the respondents could be remedied through costs. 6. The Respondents’ counsel on his part submitted on the principles governing the reinstatement of a suit dismissed for want of prosecution, and cited the decision in Dairycom Kenya Limited v Kenya Dairy Board & another [2012] KECA 851 (KLR). As regards whether the delay in prosecuting the suit was prolonged and inexcusable, and, if it was, whether justice could be done despite such delay, counsel submitted that the suit was instituted on 20th February 2012 and following the last court appearance on 30th March 2016, the appellant took no steps to prosecute the matter until July 2017, prompting the respondents to file an application seeking dismissal of the suit for want of prosecution. Further, that the appellant neither filed a Page 9 of 12Judgment-KAK Civil Appeal No E025 of 2026 (Formerly KSM Civil Appeal No E107 response to that application nor explained its inactivity during that period, and had failed to satisfactorily explain the delay of more than one year in seeking reinstatement of the suit, having Page 10 of 12Judgment-KAK Civil Appeal No E025 of 2026 (Formerly KSM Civil Appeal No E107 done so only after execution proceedings for costs had commenced. They argued that the delay was inordinate and inexcusable and had caused prejudice, particularly as the 2nd, 3rd and 7th Respondents had since passed away and other key witnesses could no longer be traced. 7. The law on dismissal for a suit for lack of prosecution is settled. This Court explained in Kurji & 4 others v Kurji & 3 others(supra) as follows: “…We note that Order 17 Rule 2 of the Civil Procedure Rules 2010 vests a trial court the discretion to dismiss a suit where no step has been taken in the matter for a period of one year. The rule provides as follows: “In any suit I which no application has been made or step taken by either party for one year, the court may give notice in writing to the parties to show cause why the suit should not be dismissed, and if cause is not shown to its satisfaction may dismiss the suit….” 21.While we are on the subject, a trial court has power under Order 12 Rule 7 to reinstate a suit that has been dismissed. The Rule provides that: “Where under this Order judgment has been entered or the suit has been dismissed, the court, on application, may set aside or vary the judgment or order upon such terms as may be just.” 8. Likewise on the reinstatement of a suit, it was held in Dairycom Kenya Limited v Kenya Dairy Board & another [2012] KECA 851 (KLR) as follows: “The law on reinstatement of suits has severally manifested in our jurisdiction. The factors to Page 11 of 12Judgment-KAK Civil Appeal No E025 of 2026 (Formerly KSM Civil Appeal No E107 take into consideration were discussed by the Court in Ivita vs. Kyumbu [1984] KLR 441 that held as follows: “The test is whether the delay is prolonged and inexcusable, and, if it is, can justice be done despite such delay? Justice is justice to both the Plaintiff and Defendant; so, both parties to the suit must be considered and the position of the judge too, because it is no easy task for the Page 12 of 12Judgment-KAK Civil Appeal No E025 of 2026 (Formerly KSM Civil Appeal No E107 documents, and, or witnesses may be missing and evidence is weak due to the disappearance of human memory resulting from lapse of time. The Defendant must however satisfy the court that it will be prejudiced by the delay or even that the plaintiff will be prejudiced. He must show that justice will not be done in the case due to the prolonged delay on the part of the plaintiff before the court will exercise its discretion in his favour and dismiss the action for want of prosecution. Thus, even if delay is prolonged if the court is satisfied with the plaintiff's excuse for the delay, the action will not be dismissed, but it will be ordered that it be set down for hearing at the earliest available time.” 9. We have in this regard perused the record of the ELC, and note that prior to the respondents' application dated 26th May 2017 seeking dismissal of the suit, various directions had been given between on 20th February 2012 and 21st May 2013, when parties recorded a consent withdrawing an application dated 18 th February 2012. On 24 th July 2013, the appellant sought leave to amend the plaint, which application was filed on 2nd September 2013 and heard on 9th October 2013 and a ruling thereon delivered on 27th November 2013. Thereafter, the matter was fixed for hearing on 11 th June 2014 and subsequently on 4 th November 2014. When the matter came before S. M. Kibunja J. on 4th November 2014, the respondents sought an adjournment to enable them file a further affidavit. By consent, the court granted the respondents leave to file and serve the further Page 13 of 12Judgment-KAK Civil Appeal No E025 of 2026 (Formerly KSM Civil Appeal No E107 affidavit, and granted the appellant corresponding leave to respond upon service, and fixed the hearing for 5 th February 2015. Page 14 of 12Judgment-KAK Civil Appeal No E025 of 2026 (Formerly KSM Civil Appeal No E107 10. On that date, the appellant sought an adjournment on the ground that its counsel was engaged in other matters in Kisumu County. The court granted the respondents the costs of the adjournment and fixed the hearing for 6 th May 2015, when, by consent, the hearing was rescheduled to 15 th July 2015. When the matter came up on 15th July 2015, the appellant was absent, prompting a further adjournment to 7th December 2015, with costs awarded to the respondents. On 7th December 2015, counsel for the appellant sought an adjournment on account of illness, and the hearing was rescheduled to 30th March 2016. On that day it was recorded by A. K. Kaniaru J. that counsel for the appellant was on maternity leave, whereupon the court directed that a hearing date be taken at the registry. 11. It is at this point that the Respondents filed their Notice of Motion dated 26 th May 2017 on 7 th June 2017, which was fixed for hearing on 25 th July 2017. On the hearing date, counsel for the respondents informed the court that the application had been duly served. As no response had been filed and there was no appearance for the Appellant, the court allowed the application with costs to the respondents. 12. As regards service of the respondents’ application to dismiss the appellant’s suit, there is an affidavit of service on record sworn on 24 th July 2017 by a process server by the name Joseph Orata Kweyu, and filed in the trial Court on 25 th July 2017,in which he deponed as follows: Page 15 of 12Judgment-KAK Civil Appeal No E025 of 2026 (Formerly KSM Civil Appeal No E107 “1. THAT I am a licensed process server of the High Court of Kenya hence competent to serve civil process. Page 16 of 12Judgment-KAK Civil Appeal No E025 of 2026 (Formerly KSM Civil Appeal No E107 2.THAT on 1.1.17 I received application (Notice of motion) dated 26.5.17 and supporting affidavit with hearing date 25.7.17 endorsed thereon to be served upon Osambwa Sandys & Co Advocates. 3. THAT on the same day I proceeded to the said offices in Vihiga and where I was advised to serve M/S Mbichiri & Co Advocates in Nairobi. 4. THAT I left a copy with Osambwa Sandys office and proceeded to Mbichiri’s office where I also served, who accepted service by retaining a copy and tamping on the face of my copy. 5. THAT I confirm to have served as aforesaid and return duly served copy.” 13. It is evident that there were proceedings undertaken in the ELC from February 2012 and November 2013 and thereafter steps were taken to set the suit the trial Court for hearing, and various adjournments granted by the ELC, some on application by the respondents. It is also our view that the service that was effected of the respondents’ application dated 26th May 2017 was not clear and irregular in terms of the date of service and the party served. It is notable in this respect that was not controverted by the respondents that Mbichire & Co Advocates were served with the application and that they were not on record as the appellant’s advocate. 14. The trial Court did not consider these two material and relevant factors on record when it proceeded to find as follows: “ 13. Looking at the records, it is plain to me that for over a period of one year, the Applicant Page 17 of 12Judgment-KAK Civil Appeal No E025 of 2026 (Formerly KSM Civil Appeal No E107 didn’t take any action to move this matter forward. Before the earlier application was filed on 7/6/2017 the matter had been last in court on 30/3/2016. It is clear to me that the application was served but the Applicant didn’t respond to it. It is clear to me too that on the date the earlier application was allowed, the Applicant herein had been served but failed to appear in court. Page 18 of 12Judgment-KAK Civil Appeal No E025 of 2026 (Formerly KSM Civil Appeal No E107 14. The Applicant would have us believe that there was no service. The service referred to is shown to have been effected on the Applicant’s former advocates who, upon duly being served, referred the process server to yet another firm of advocates. If you are telling a story to a court of law, tell it well. If you tell it the way you would relate it in a market place, you will fail. The Applicant says there was no service. Reason? Because of what the process server said in his affidavit of service, which, interalia, stated that service was at Vihiga instead of Majengo town where, according to the Applicant, the offices of the former advocates are situated. It was wrong too, said the Applicant, for the process server to serve another firm of advocates – Mbichiri & Co. Advocates – which had no instructions to receive service. Besides, the Applicant continued, the process server didn’t disclose who advised him to serve that other firm. 15. That’s a good story; indeed good. Except that when you are telling it to a court of law, the court would tell you not to tell it in a speculative or conjectural manner. The former firm of advocates is one the Applicant had dealt with before. It would have been necessary to bring confirmation from that firm showing it was not served. The court expected an affidavit or other written confirmation showing that there was no service. Instead of doing this however, the Applicant chose to hypothesize and presume. This is not enough in my view. Credibility in a court of law is always based on a higher standard. It may be useful to point out here that the affidavit of service by the process server is clear that the firm then on record was duly served and that it is that firm that referred the process server to Page 19 of 12Judgment-KAK Civil Appeal No E025 of 2026 (Formerly KSM Civil Appeal No E107 the other firm said not to have instructions”. 15. Needless to say, the averments made by the appellant in support of its application as regards lack of service were based on the affidavit of service that we have reproduced hereinabove, and the ELC additionally erred in not considering the said affidavit of service and reached a wrong conclusion in terming the appellant’s averments as speculative or Page 20 of 12Judgment-KAK Civil Appeal No E025 of 2026 (Formerly KSM Civil Appeal No E107 conjecture. These findings also puts to rest the arguments by the respondents’ counsel that the appellant did not file a response to the application for dismissal of the suit for want of prosecution, nor attach the said response in its application for setting aside the orders of dismissal, as this was not possible since the appellant demonstrated that it was not served and therefore not aware of the application for dismissal. 16. Lastly, before we pen off, we must distinguish the arguments put forward by the respondents’ counsel in his submissions on the correct approach in an application to set aside an order or judgment in default, and the judicial authorities cited in this regard, including on the requirement to show that there was a defense on merit. It is notable that the setting aside of the trial Court’s orders and reinstatement orders sought by the appellant in this appeal arose from dismissal of a suit for want of prosecution, not from judgment entered in default in which different legal considerations apply, and the test and arguments put forward by the respondents’ counsel in this regard are therefore inapplicable. 17. We therefore find that there are justifiable grounds that warrant our interference with the learned trial Judge’s exercise of discretion and we accordingly allow this appeal and set aside the ruling delivered on 25th July 2019 by the ELC at Busia (A. K. Kaniaru J.) in Bungoma ELC Case No. Page 21 of 12Judgment-KAK Civil Appeal No E025 of 2026 (Formerly KSM Civil Appeal No E107 198 of 2014 , and allow the appellant's application dated 20th July 2018 that was filed therein. The result is that the appellant’s suit in Bungoma ELC Page 22 of 12Judgment-KAK Civil Appeal No E025 of 2026 (Formerly KSM Civil Appeal No E107 Case No. 198 of 2014 is reinstated for hearing. We further order that the said suit be heard on priority basis. 18. Orders accordingly. Dated and delivered at Kakamega this 17th day of July, 2026. P. NYAMWEYA. ………………………….. JUDGE OF APPEAL R. NGETICH ……………………………… JUDGE OF APPEAL RADIDO S.OKIYO ……………………………….. JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY RREGISTRAR