https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8419

Community Uplift Ministries v Chelagat (Sued as the Legal Representative of the Estate of Nathan Chesang Moson - Deceased) & 2 others (Civil Case 8 of 2013) [2026] KEHC 8419 (KLR) (22 May 2026) (Ruling) Neutral citation: [2026] KEHC 8419 (KLR) Republic of Kenya In the High Court at Eldoret Civil Case 8 of 2013 JRA Wananda, J May 22, 2026 Between Community Uplift Ministries Applicant and Josephine Chelagat (Sued as the Legal Representative of the Estate of Nathan Chesang Moson - Deceased) 1st Defendant Josephine Chelagat 2nd Defendant Servanthood & Light Development Foundation 3rd Defendant Ruling 1.There are two rival Applications herein. Being related, it was agreed that the two Applications be canvassed together and this one Ruling be rendered determining both. 2.The background and history of this case was summarized in my Ruling delivered in this matter on 6/10/2023 as follows:“1.The background of this matter is the Plaint filed on 7/04/2011 by which the Plaintiff instituted Kitale High Court Civil Case No. 34 of 2011. In the suit, the Plaintiff, which described itself as a Christian non-profit making organization registered in the United States of America, accused the Defendants of misappropriating and/or converting to their own use, funds and assets entrusted upon the Defendants by the Plaintiff for the purposes of providing community development services, particularly cooking and lighting systems, to needy people in rural Africa. The Plaintiff then sought various reliefs in the nature of recovery of and compensation for the funds and assets allegedly advanced to the Defendants.2.The suit was defended and was subsequently on 19/02/2013, due to what was described as the “controversial nature of the matter”, transferred to this Court and assigned the current case number." 3.The genesis of the prevailing situation is the Ruling delivered on 8/4/2020 by which this Court, then presided over by H.A. Omondi J (as she then was), stayed the writing and delivery of the Judgment in this case pending hearing and determination of the Defendants’ intended appeals. The order for stay was as a result of the Notice of Appeal dated 7/3/2019 filed by the Defendants against an ex temporary decision of the Judge delivered on 5/3/2019 and a second Notice of Appeal dated 12/3/2020, again, filed by the Defendants against the Ruling delivered by the same Judge on 25/9/2019. The basis of the Notices of Appeal was that the case came up for hearing on 5/3/2019 and 6/03/2019, during the hearing on 5/03/2019 the Plaintiff began presenting his case but midway, the Defendants objected to production of some documents arguing that, inter alia, they had not been served with the same and also, that the witness was not the maker thereof. The Judge, however, dismissed the objection and admitted the documents in evidence. Aggrieved by that decision, the Defendants orally sought and obtained leave to appeal but their prayer for stay of proceedings was denied, and the trial was directed to proceed on the next day, 6/03/2019, as scheduled The record indicates that the Defendants, together with their Advocate, then stormed out of Court in protest, upon which the Court proceeded with the hearing, and upon the Plaintiff concluding his testimony, closed the trial without the Plaintiff being cross-examined owing to the Defendants’ walk-out. Further aggrieved by these developments, the Defendants filed the Notice of Appeal dated 7/03/2019, and later also filed an Application seeking disqualification/recusal of the Judge and for setting aside of the proceedings of 5/03/2019 and 6/03/2019, upon which the Judge delivered her Ruling on 25/09/2019 declining to recuse herself. The Defendants on 8/10/2019 filed another Application seeking leave to appeal against the said decision and for stay of proceedings, including stay of writing of the Judgment pending hearing and determination of the intended Appeals. The Ruling was then delivered on 8/04/2020 refusing to set aside the proceedings but granting stay of the proceedings. 4.It is not in dispute that upon what the Plaintiff construed as failure by the Defendants for 5 years to file the intended Appeals, the Plaintiff filed the Application dated 29/11/2024 before the Court of Appeal seeking orders that the Defendants’ respective Notices of Appeal aforesaid be deemed as withdrawn due to the inordinate delay to file the Appeals. It is also not in dispute that the Court of Appeal, on 11/06/2025, agreed with the Plaintiff and allowed the Application. The Notices of Appeal were therefore deemed as withdrawn thus extinguishing the Defendants’ intention to Appeal and by extension, rendering the orders of stay of proceedings issued herein on 8/04/2020 as aforesaid, superfluous and/or redundant 5.The above is therefore the background to the two Applications the subject of this Ruling. 6.The 1st Application is the Plaintiff’s Notice of Motion dated 13/06/2025 filed through Messrs Lilian Koech Associates LLP Advocates. It seeks the following orders:i.That the Ruling delivered on 8th April 2020 by the Court herein staying proceedings including writing of Judgment and any other antecedent actions pending hearing and of appeal be set aside and vacated.ii.That the Court be pleased to give directions on the delivery of Judgment and any other antecedent actions.iii.That the costs of this application be in the cause. 7.The Application is supported by the Affidavit indicated to have been sworn by one John Coors in the State of Colorado in the United States of America (USA), who introduced himself as a director of the Plaintiff. In the Affidavit, after reciting the chronology of events recounted above, he deponed that in view of the said Ruling of the Court of Appeal marking the Notices of Appeal as withdrawn, the proceedings in this suit, specifically the writing of the Judgment should now go ahead as the stay of proceedings had denied the Plaintiff the right to access justice contrary to Article 48 of the Constitution, and that the subject matter of the suit continues being wasted by the Defendants. He also pointed out that the initial Defendant has since passed away and his substitution properly done, and that any continued delay in concluding this matter will further prejudice the Plaintiff. 8.This 1st Application is opposed by way of the Replying Affidavit sworn by the 1st Defendant, Josephine Chelagat on 6/10/2025, and filed through Messrs Nyairo & Co. Advocates. She however dwelt into what I would consider an attempt to re-litigate the now aborted intended Appeals. I say so because she has engaged at length in faulting H. Omondi J (as she then was) for declining the Defendant’s objection to production of the documents at the trial, the same grievances that the Defendants had intended to raise in the now aborted Appeals, and also seemingly faulting the Court of Appeal for allowing the Plaintiff’s Application that successfully sought that the Notices of Appeal be marked as withdrawn. She however prayed that the defence case be re-opened so as to afford the Defendants an opportunity to be heard by cross-examining the Plaintiff’s witnesses and presenting the defence case. She deponed that the Application could not have been brought sooner in view of the intervening proceedings before this Court and the Court of Appeal, the death of the initial 1st Defendant, and the order of stay of proceedings that was in force. She urged further that the right to be heard is protected under the Constitution hence the need to allow the parties a level playing field, and that the Defendants have a good defence. 9.Th 2nd Application is the Defendant’s Notice of Motion dated 20/06/2025 filed through Messrs Nyairo & Co. Advocates. The prayers now remaining in the Application are the following:“3.That the orders of 6/06/2019 and subsequent proceedings be and are hereby stayed.4.That the Plaintiff’s case be reopened and the Plaintiff’s witnesses be recalled for cross-examination.5.That the Defendants’/Applicants’ case be re-opened to allow the Defendant and their witnesses testify in this matter.6.That the costs of this application be in the cause.” 10.The Application is supported by way of the Supporting Affidavit sworn by the 1st Defendant, Josephine Chelagat. She again fell into the same folly of attempting to re-litigate the now aborted intended Appeals by faulting H. Omondi J for overruling the Defendant’s objections to production by the Plaintiff of some documents at the trial, and also faulting the Court of Appeal for marking the Notices of Appeal as withdrawn due to inordinate delay, and thus shutting out the Defendant’s path to appealing. The rest of the matters deponed are the same as sworn in the Defendants’ Replying Affidavit recounted above. 11.This 2nd Application is opposed by way of the Replying Affidavit sworn by the said, John Coors on 2/10/2025 and filed through Messrs Lilian Koech Associates LLP Advocates. He deponed that it would be prejudicial for the Plaintiff to re-open the trial considering the long lapse of time, that circumstances have changed significantly since the suit was stayed, including death of the 1st Defendant who was the central figure in the dispute thus even if the trial is re-opened, still the Plaintiffs will not have the opportunity to cross-examine him. He also deponed that there are no preservation orders in place to secure the assets and interests central to this suit which situation heightens the risk of further dissipation and conversion of the subject properties by the Defendants. He urged further that the Plaintiff’s witnesses being residents of USA, it shall be extremely expensive to avail them to Court afresh, and that the last time he was in Eldoret for the trial, he had to retain services of armed security personnel owing to threats he received purportedly from agents of the Defendants, which expense he will have to again incur. He also contended that he is now of advanced aged and the time lapse has also caused him memory lapses considering the long time that has passed since the transactions the subject of this case arose, and also that such long travel and the logistics thereof would unjustly prejudice him. He also pointed out that H. Omondi J (as she then was), against whom the Defendants’ bone of contention was predicated, was elevated to the Court of Appeal in June 2021 thus negating the essence of the Appeals but still the Defendant did not consider compromising the Appeals. He criticized the Defendants’ and their Counsel’s act of walking out of Court during the trial on grounds of an unjustified protest, and also pointed out that H. Omondi J (as she then was), in her Ruling dated 25/09/2019, chronicled the various delaying tactics employed by the Defendants. He asserted further that the Defendants accused the Judges handling the matter, first in Kitale and later, in Eldoret, of bias none of which accusations were proved, and also sought lengthy delays by filing interlocutory appeals before the Court of Appeal, none of which was successful 12.With leave of the Court, the Defendant filed the Supplementary Affidavit sworn by the 1st Defendant on 9/10/2025, which Affidavit basically simply denied the allegations made by the Plaintiffs in the Replying Affidavit. She basically deponed that elevation of H. Omondi J (as she then was) to the Court of Appeal did not render the Appeals useless since besides the issue of her recusal, there were other crucial issues that needed to be determined, such as admission of documents produced in evidence by a witness who was not the maker thereof. She also defended the Defendants’ action of filing complaints against the Judges who had handled the case, and also refuted the claim that the witnesses may suffer memory losses due to the long passage of time. She also refuted the allegation that it would be expensive for the Plaintiff to avail his witnesses afresh arguing that the advent of virtual proceedings negates that claim. Regarding the Plaintiff’s claims of fear for his safety, she submitted that the same is a diversionary tactic considering that it has never been raised before. 13.The parties then filed written Submissions. The Plaintiff’s Submissions is dated 23/10/2025, while the Defendants’ is dated 17/11/2025. Plaintiff’s Submissions 14.Counsel for the Plaintiff, after recounting the background of the case and reiterating the matters already deponed in the Plaintiff’s Affidavits, submitted that lifting of the orders of stay of proceedings means that the trial should proceed from where it was halted, which is for the Court to now procced to write a Judgment, and not to re-open the trial. She urged that in this case, it is the Defendants’ conduct and deliberate efforts at derailing the trial that has caused the delays in concluding the case. She, for instance, drew attention to the findings made to this effect by H. Omondi J (as she then was) in her Ruling dated 25/09/2019, the fact that it is now 15 years since this suit was filed, the fact that the Defendants sought to file two “unmerited” Appeals to the Court of Appeal, and also two “unmerited” complaints to the Judges and Magistrates Vetting Board, and also before the Judicial Service Commission against two separate presiding Judges, and by also causing a litany of adjournments. She reiterated that the Defendants’ failure to participate in the trial was because they, together with their Counsel, voluntarily walked out of Court during the trial on an “unfounded” protest. She also reiterated that despite H. Omondi J (as she then was), against whom the Defendant’s bone of contention was, having been elevated to the Court of Appeal in June 2021, the Defendant still did not consider compromising the Appeals, and even ignored this Court’s invitation made in its Ruling dated 6/10/2023, to the Defendants to reconsider their line of the Appeal as it would be an academic exercise. In conclusion, she submitted that re-opening of the case would not be in furtherance of the Court’s overriding objective, and also in violation of the provisions of Article 159(2)(b) of the Constitution. Counsel also cited a number authorities to buttress the various limbs of her submissions above. Defendants’ Submissions 15.Counsel for the Defendants, also after recounting the background of the case and reiterating the matters already deponed in the Defendants’ Affidavits, basically submitted that re-opening the case or commencing it de novo would be in tandem with the spirt of Section 3A, and Articles 27 and 159 of the Constitution, which require Courts to dispense justice without discrimination, and without undue regard to technicalities. The rest of the contents of the Submissions are basically again restatements of the contents of the Defendants’ Affidavits, and Counsel, too, also cited a number authorities to support her submissions. Determination 16.Noting that the Defendants’ intended Appeals have now been extinguished by the Court of Appeal thus rendering the order of stay of proceedings earlier issued in this matter superfluous, the sole issue that calls for determination in this matter is “whether this suit should now proceed for writing of the Judgment, or whether the trial, already closed in 2019 without the participation of the Defendants who had opted to walk out of Court in protest during the trial, should be re-opened to allow the Defendants to now participate.” 17.It is apparent that in this case, it is the Defendants’ actions that repeatedly derailed the trial and conclusion of this suit, which suit was filed way back in the year 2011, a whole 15 years ago. It is apparent from the record that the delay was caused by, among others, filing of complaints by the Defendants at the Judges and Magistrates Vetting Board, and also at the Judicial Service Commission against two Judges, one in Kitale and one in Eldoret, who previously, separately, handled this matter, and further, the Defendants’ refusal to participate in the trial and walking out of Court during the trial in protest against the Judge’s decision to overrule the Defendants’ objection to admission of some documents in evidence. 18.While each and every party to a case possesses the undeniable constitutional right to challenge by filing an Appeal, a decision made by a Judicial Officer during Court proceedings, and to also file a complaint against any Judicial Officer for disciplinary action for, inter alia, acts of misconduct or incompetence, it is also wise to always exercise that right in a respectful and purposeful manner without need for any unnecessary confrontation or antagonism. In my own many years of practice before transitioning to the bench, I did in many cases encounter sad cases of what I deemed to constitute outright bias or apparent acts of misconduct and incompetence by Judicial Officers. In many instances, I was, in my view, unjustly overruled by Judicial Officers in decisions that I considered tantamount to abuse of discretion. However, never on any one occasion did I ever walk out of a Court in protest. I would simply respectfully apply for leave to appeal, insist on my objections being recorded, and pray for stay of proceedings to enable me file an Appeal on behalf of my client. Once these were done, and confident that my continued participation in the proceedings despite the unjust treatment meted out on me and my client would not therefore be construed as acquiescence, where stay of proceedings would be denied, I would then continue participating in the proceedings but at the earliest opportunity, file my Appeal at the higher Court. On many occasions, the Appeal Courts did eventually vindicate me and overturn the challenged decisions, upon which the trials would smoothly resume without much ado. I am not saying that I was the epitome of exemplary litigation during my many days of practice but in this case, I wonder why the Defendants and/or their Counsel did not deem it fit to conduct themselves as suggested above. 19.Although it is admirable and even encouraged for all Advocate to always stand up to acts of abuse of discretion against their clients, remain firm, steadfast and bold and strenuously fight and agitate for their clients’ rights, and not succumb to bullying or high-handedness by domineering or opinionated Judicial Officers, it is and has never been, in my view, a wise idea to walk out of a Court in protest. Besides giving the impression of rudeness and arrogance, it also unnecessarily antagonises the Court environment, breeds sideshows, raises tensions and most negatively, ends up stalling Court proceedings and with it, wasting a lot of judicial time. In this case, the Defendants having already registered their protests which were duly recorded, and the Court having granted the Defendants leave to appeal, the Defendants ought to have respectfully continued to participate in the proceedings. By doing so, they would not have lost their right to appeal as they would not have been deemed to have acquiesced to the manner in which the trial had been conducted, and would still have therefore retained their right to pursue the Appeals simultaneously with the trial. 20.As a consequence of the walk-out by the Defendants, the Judge, perhaps not wishing to continue being the subject of further complaints, eventually, subsequently, gave in and granted the stay of proceedings as demanded by the Defendants, with the result that the case has stalled since 2020, a period of 6 years now. This would not have arisen had the Defendants simply continued participating in the trial and simultaneously pursued their Appeal. In my view, the Defendants’ act of staging a walk-out was ill-advised and has now returned to haunt them. 21.To make matters worse for the Defendants, their Notices of Appeal filed in 2019 to signify their intention to challenge the Judge’s decisions, have now been marked as withdrawn by the Court of Appeal on the ground of the Defendants’ failure to timeously file the intended Appeals. Although the Defendants have attempted to criticize the Court of Appeal for that decision, and even engaged in what appears to me to be purported re-litigating before this Court, of the proceedings before the Court of Appeal, that is an effort in futility, noting that the Court of Appeal being a higher Court, its decisions or declarations are binding on this Court and I cannot therefore overrule its findings. As it stands now, the position remains that the Court of Appeal has in essence found the Defendants guilty of inaction and inordinate delay in taking to file their intended Appeals, with the consequence that the Defendants’ intention to appeal has now been nipped in the bud, and the order of stay of proceedings granted in this matter in the year 2020 has now lapsed, ceasing to have any force. 22.With the above position set out, would it be really just to subject the Plaintiff to re-opening of the trial closed 6 years ago for no fault of his? I do not think so. The Defendants were clearly the authors of their own misfortune and cannot now be heard to be proclaiming their constitutional right to be heard or seeking the Court’s discretion to now participate in the trial. It is they who refused to be heard when granted the opportunity, and instead, chose to walk out of Court at their own volition. Further, they have now been technically found guilty by the Court of Appeal of failing to timeously file their Appeals noting the 6 years delay. I do not see why the Plaintiff who is the one who brought this case to Court and who, from the record, satisfies me as having always shown readiness to prosecute his case, should now be penalized or be made to suffer for the Defendants’ deliberate actions. 23.The Plaintiff has protested that it would be prejudicial for him to re-open the trial considering the long lapse of time that has now passed, that circumstances have changed significantly since the suit was stayed, particularly the death of the 1st Defendant who was the central figure in the dispute thus even if the trial is re-opened, still the Plaintiff will not have the opportunity to cross-examine him. He also contended that he is now of advanced aged and the time lapse has also caused him and his witnesses memory lapses considering the long time that has passed since the transactions the subject of this case. He also pointed out the successive alleged “delaying tactics” employed by the Defendants throughout the case as chronicled by H. Omondi J (as she then was), in her Ruling dated 25/09/2019. I find these protests merited and I uphold them. I agree that under the circumstances of this case, re-opening the case would not be in furtherance of the Court’s overriding objective, and would also be in stark violation of the letter and spirit of Article 159(2)(b) of the Constitution of Kenya that “justice shall not be delayed”. Final Orders 24.For the foregoing reasons, I make orders as follows:i.The Defendants’ Notice of Motion dated 20/06/2025 seeking, inter alia, orders for re-opening of the trial already closed in this suit and/or for the trial to commence de novo, is hereby dismissed with costs to the Plaintiff.ii.The Plaintiff’s Notice of Motion dated 13/06/2025 seeking, inter alia, orders that this Court do now proceed to write and deliver the Judgment in this suit, is hereby allowed with costs to the Plaintiff.iii.Consequently, the order of stay of proceedings issued in this case on 8/04/2020 is now hereby lifted and/or vacated.iv.Now that I have since proceeded on transfer, this file shall now be placed before the Judge who has replaced me as a Judge in this Court, for directions on writing and delivery of the Judgment. DELIVERED, DATED AND SIGNED AT ELDORET THIS 22ND DAY OF MAY 2026……………..……..WANANDA JOHN R. ANUROJUDGEDelivered in the presence of:Willy h/b for Mr. Ligami for the PlaintiffMs. Odwa for the DefendantsCourt Assistant: Rodgers Tshombe