https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1598

Good News Church of Africa v Board of Trustees Full Gospel Churches of Kenya & 2 others (Civil Application E399 of 2021) [2026] KECA 1598 (KLR) (31 July 2026) (Ruling) Neutral citation: [2026] KECA 1598 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Application E399 of 2021 LA Achode, P Lilan & JO Okello, JJA July 31, 2026 Between Good News Church Of Africa Applicant and The Board of Trustees Full Gospel Churches Of Kenya 1st Respondent The Attorney General 2nd Respondent The Commissioner Of Lands 3rd Respondent (Being an application for stay of execution of the judgement of the High Court at Machakos (Angote J,) dated 29th January 2021 in ELC case No.74 of 2005 Consolidated with High Court Civil No.222 of 2008) Ruling 1.The applicant moved this Court vide a Notice of Motion dated 17th November, 2021, under sections 3A and 3B of the Appellate Jurisdiction Act, and rule 5(2)(b) of this Court’s Rules, seeking orders:a.That there be a stay of execution and/or enforcement of the judgment delivered on 29th January, 2021 in Machakos ELC Case No. 74 of 2005 as consolidated with Machakos High Court Civil Case No. 222 of 2008, pending the hearing and determination of Nairobi Civil Appeal No. E470 of 2021.b.That costs of the application be provided for. 2.The application is directed against The Board of Trustees Full Gospel Churches of Kenya, (1st respondent,) who was declared by the Environment and Land Court to be the lawful owner of Plot No. Machakos Town/Block 1/297, and entitled to registration and issuance of title documents. 3.The backdrop of the application is a dispute concerning the ownership of Plot No. Machakos Town/Block 1/297, formerly known as Zone 47, Machakos. The applicant asserts that it has occupied the property since 1974 and has constructed and operated a church thereon for several decades. That in 1994, a committee chaired by the District Commissioner Machakos, found the applicant to be the lawful allottee of the property, and recommended cancellation of the allotment allegedly issued to the 1st respondent. 4.Notwithstanding that recommendation, the 1st respondent instituted Machakos ELC Case No. 74 of 2005 seeking declaration of ownership. Following a hearing, the Environment and Land Court, Angote J, delivered judgment on 29th January, 2021 declaring that the 1st respondent had lawfully acquired ownership of the suit property and was entitled to registration as proprietor. 5.The applicant avers that it neither attended the hearing, nor participated in the proceedings leading to the judgment, because its advocate failed to notify it of the hearing date and subsequently ceased actively representing it. It states that it only became aware of the judgment on 31st January, 2021 when officials of the 1st respondent visited the church and threatened eviction. 6.The applicant thereafter, filed an application seeking stay of execution and setting aside of the judgment. That application was dismissed by a ruling delivered on 1st October, 2021 and the interim orders of stay vacated. Aggrieved by that decision, the applicant filed a Notice of Appeal and subsequently lodged, Nairobi Civil Appeal No. E470 of 2021, giving rise to the present application. 7.The application is supported by the grounds appearing on its face and the affidavit sworn by Archbishop Reverend Raphael N. Kituva and Mr. B.M. Mungata on 17th November, 2021. 8.The applicant contends that the intended appeal is arguable because it raises substantial questions regarding: whether it was the lawful allottee of the suit property; whether the trial court properly considered the findings of the 1994 District Commissioner’s Committee; whether the ex parte proceedings ought to stand where its absence resulted from the mistake of counsel; and, whether its long occupation and developments on the property were adequately considered. 9.The applicant further avers that unless stay is granted, it faces imminent eviction and demolition of church structures constructed over many years, thereby rendering the intended appeal nugatory. 10.Opposing the application, the 1st respondent filed a replying affidavit sworn by Bishop Dr. Amalex Ngenga on 18th January, 2022, contending that the application is misconceived, incompetent and an abuse of the court process. It deposes that the applicant is effectively seeking to challenge the judgment of 29th January, 2021 through an appeal ostensibly directed at the ruling of 1st October, 2021. 11.The respondent avers that the applicant failed to participate in the trial, despite being accorded numerous opportunities to file pleadings, witness statements and documentary evidence. That hearing notices were duly served upon the applicant’s advocate who attended court but elected not to participate, after his application for adjournment was declined. 12.The respondent denies that the applicant established ownership, occupation, or lawful allocation of the suit property and contends that the documents now relied upon were either not allotment letters, or were never produced before the trial court. It further maintains that the 1994 committee proceedings amounted to no more than recommendations without legal force. According to the respondent, the suit property was lawfully allocated to it in 1994, pursuant to the Government Lands Act. The requisite payments were made, and the judgment of the Environment and Land Court properly recognized those rights. 13.The application was canvassed by way of written submissions. In the submissions dated 11th January, 2022, and filed by the firm of B.M Mung’ata & Company advocates for the applicant, it is submitted that the applicant has satisfied both limbs of rule 5(2)(b) and urges that the intended appeal is arguable. Further, that eviction and demolition of the church structures would destroy the substratum of the appeal. 14.The respondent’s submissions filed by the firm of Nzei & Company Advocates were dated 18th January, 2022. The respondent submits that no arguable appeal exists because the applicant deliberately failed to participate in the proceedings before the trial court and is now attempting to introduce evidence that was never tendered before that court. It is argued that the applicant has not demonstrated any legally recognizable interest in the property capable of protection through an order of stay. 15.The matter came before Court for plenary hearing on 24th March, 2026. Mr. Mutava, learned counsel appeared for the applicant and opted to rely entirely on the filed submissions. Upon inquiry by the Court, counsel confirmed that the 1st respondent had already entered into the suit property and demolished their structures. Mr. Nzei, learned counsel was present for the 1st respondent. He too relied on his submissions and added that upon judgment being entered, the applicant vacated the property. Further, that the appeal is against a ruling and not the judgment that conferred title upon the 1st respondent. 16.We have considered the application, the affidavits on record, the rival submissions and the authorities cited. The principles governing the exercise of this Court’s jurisdiction under rule 5(2)(b) are well settled. (See- Trust Bank Limited & Another v Investech Bank Limited & 3 Others [2000] eKLR and Stanley Kang’ethe Kinyanjui v Tony Ketter & 5 Others [2013] eKLR. An applicant must satisfy two requirements. First, that the intended appeal is arguable; and second, that unless the orders sought are granted, the appeal, if successful, would be rendered nugatory. The two limbs are conjunctive and both must be satisfied. 17.On the first limb, the applicant attributes its failure to participate in the proceedings to the conduct of its former advocate. However, the material before us reveals that the applicant was accorded considerable opportunity to prosecute its case before the trial court. The record further shows that counsel on record was aware of the proceedings and appeared before the court during the hearing. He informed the court that the applicant had withdrawn instructions just before the hearing. The applicant cannot therefore, blame the advocate for what transpired. 18.The issues now sought to be advanced largely revolve around documents and matters that were either, not tendered before the trial court, or were not subjected to evidentiary scrutiny. The applicant is in effect, inviting this Court at an interlocutory stage, to revisit factual questions that were never properly canvassed before the superior court. That is an invitation we must decline. 19.While the threshold for an arguable appeal is admittedly low, an applicant must nevertheless, demonstrate the existence of a bona fide issue deserving consideration on appeal. In the circumstances of this case, and bearing in mind the applicant’s prolonged failure to actively prosecute its position before the trial court, we are not persuaded that the intended appeal raises a genuinely arguable point capable of warranting intervention under rule 5(2)(b). 20.More fundamentally however, the pending appeal upon which the applicant is basing the application for orders of stay, arises from a ruling that was dismissed. This Court has rendered itself times without number on this, stating that orders of stay cannot obtain in such a scenario. The landmark case of Western College of Arts and Applied Sciences vs E.P. Oranga and 3 Others, [1976], a foundational Kenyan civil procedure authority, established that appellate courts cannot grant a stay of execution, if the lower court’s decision was purely a dismissal as there would be no active decree to enforce. 21.On the nugatory aspect we turn to the case of Reliance Bank Ltd v Norlake Investments Ltd [2002] 1 EA 227, where the Court emphasized that the inquiry turns on whether what is sought to be stayed is reversible and, if not, whether damages or other relief would adequately compensate the successful party. 22.The applicant asserts that it has occupied the property for many years and has erected church structures thereon. However, ownership and entitlement to the property remain matters that were conclusively determined by the trial court in favour of the respondent. The applicant has not demonstrated, through material that was properly before the trial court, a legally recognizable proprietary interest that would justify preservation by way of stay. 23.We are also of the view that while eviction and loss of possession may undoubtedly occasion inconvenience, the applicant has not demonstrated that the Court would be unable to fashion appropriate relief should the appeal ultimately succeed. The mere assertion that the appeal will be rendered nugatory is insufficient. 24.We are mindful that the judgment sought to be stayed is the culmination of litigation that has been pending for many years. The respondent, having obtained judgment in its favour, is entitled to enjoy the fruits thereof, unless sufficient grounds are established to justify this Court’s intervention. 25.In the result, we are not satisfied that the applicant has met the twin requirements under rule 5(2)(b) to warrant granting of the orders sought. Accordingly, the Notice of Motion is hereby dismissed with costs to the respondent.It is so ordered. DATED AND DELIVERED AT NAIROBI THIS 31ST DAY OF JULY, 2026L. ACHODE…………………………JUDGE OF APPEAL PAUL LILAN…………………………JUDGE OF APPEAL DR. J.O. OKELLO…………………………JUDGE OF APPEAL I certify that this is a true copy of the original SignedDEPUTY REGISTRAR