https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1015

Atemba (Suing as a Trustee and Overseer Pastor of Embassy of Faith Worldwide Church) v Damani Drums Limited & another (Civil Application E498 of 2024) [2026] KECA 1015 (KLR) (29 May 2026) (Ruling) Neutral citation: [2026] KECA 1015 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Application E498 of 2024 W Karanja, K M'Inoti & P Nyamweya, JJA May 29, 2026 Between Pastor Jack Calistus Atemba (Suing as a Trustee and Overseer Pastor of Embassy of Faith Worldwide Church) Applicant and Damani Drums Limited 1st Respondent Hean Textile Industries Limited 2nd Respondent (Being an appeal arising from the judgment of the Environment and Land Court at Nairobi (O. Mboya, J.) dated 16th July 2024 in ELC Case No. E245 of 2021 Environment & Land Case E245 of 2021 ) Ruling 1.Pastor Jack Calistus Atemba (the applicant) in his capacity as the trustee and overseer of Embassy of Faith Worldwide Church, sued Damani Drums Limited, and Hean Textile Industries Limited (1st and 2nd respondents, respectively) before the Environment and Land Court (ELC) in ELC Case No. E245 of 2021 through a plaint dated 6th July 2021, the applicant claimed, inter alia, reliefs as follows:-a.an order of eviction of the defendants from plot Nos. 26 and 58 situated within LR No. Embakasi 9042/147 and 9042/148; andb.an order of permanent injunction against the defendants from accessing, trespassing, encroaching, alienating and or interfering with Plot Nos. 26 and 58 in Parcels No. Embakasi 9042/147 and 9042/148. 2.The plaint and summons are said to have been served on the respondents but they neither entered appearance, nor did they file any defence. The suit, therefore, proceeded by way of formal proof and eventually, judgment was entered in favour of the applicant herein. When the judgment and decree were served on the respondents, they went back to court claiming that they had not been served with the plaint and/or summons and that they were totally unaware of the existence of such a case. The judgment in question was thus vacated by consent of both parties on 14th November 2023 and the respondents were granted leave to enter appearance and file defence, which they did. They also filed a counterclaim in which they claimed that the suit properties belonged to them and sought declarations to that effect, and also for eviction orders against the applicant. 3.A hearing date for the matter was taken by consent of both parties, but on the hearing date, neither the applicants nor their counsel appeared in court. Their case was dismissed and judgment on the counter-claim was entered in favour of the respondents. The declarations and orders they had obtained earlier were now granted to the respondent. To crown it all, the respondents were each awarded Kshs.5,000,000 as damages for trespass. It is important to note that this judgment was rendered on 16th September 2024. 4.Vide a notice of appeal dated 18th September 2024, the applicant’s counsel on record notified the court that he intended to file an appeal against the judgment dated 16th September 2024 and the ruling dated 16th July 2024. An issue arises as to whether that notice of appeal is defective, but we shall not deal with that point here. Suffice to say that, in the main, the applicant seeks in the application before the Court Conservatory orders staying implementation of the judgment and orders dated 16th September 2024 pending the hearing and determination of the appeal. 5.The application is premised on several grounds on its face and supported by the affidavit sworn by the applicant on 18th September 2024. The said grounds and depositions are not in respect of a challenge to the merits of the substantive appeal. Instead, the applicant is challenging the fact that the matter proceeded in their absence, and hence the prayer in their memorandum of appeal to the effect that that judgment should be set aside and the case be heard denovo before the ELC. 6.In their grounds of opposition to the application dated 24th January 2025, the respondents’ counsel opines that the application is fatally defective and that of the previous proceedings had been set aside along with the judgment, there was nothing left for the court to consider on 16th July 2024 when the applicants failed to attend court. (sentence is not clear). Counsel stated that the hearing date had been taken by consent; that the appeal is not arguable and further, that the applicant should have applied for the setting aside of the judgment and not move this Court by way of appeal. 7.We have considered the application, the grounds on its face, the grounds of opposition filed by the respondent and the rival submissions. 8.The intended appeal is against the exercise of the learned Judge’s discretion to proceed with the hearing of the case in the absence of the applicant on the date that had been taken by consent by both parties. There is no averment that the hearing date was not taken by consent of the parties. We also note that the trial court was not moved to set aside the impugned judgment, or given the reasons for failure to attend court given, so that the learned Judge could determine whether his decision to proceed in the applicant’s absence was justified. 9.Indeed, no reasons have been proffered even before this Court for the applicant’s and his counsel’s failure to attend court even after the date was taken by consent. How will this Court be moved on the substantive appeal to find that the learned trial Judge did not exercise his discretion judiciously? We agree that the applicant ought to have applied for the setting aside of the judgment before the trial court so that they could give their reasons there, and if dissatisfied with the ruling, move to this Court on appeal. 10.Having considered the material before us, we are not persuaded that the applicant has an arguable appeal. 11.For an application under Rule 5(2)(b) of the Court of Appeal Rules to succeed, the applicant must demonstrate that they have an arguable appeal. Only after satisfying that requirement will they then need to demonstrate to the Court that if the orders sought are not granted, their appeal or intended appeal, were it too succeed, will be rendered moot, or useless. The two requirements are conjunctive and both must be proved. Failure to prove one of them will be help. 12.In our view, the applicant has failed to demonstrate that he has an arguable appeal. Accordingly, we find his application devoid of merit and dismiss it with costs to the respondents. DATED AND DELIVERED AT NAIROBI, THIS 29TH DAY OF MAY 2026.W. KARANJA........................JUDGE OF APPEALK. M’INOTI........................JUDGE OF APPEALP. NYAMWEYA........................JUDGE OF APPEALI certify that this is a true copy of the original.Signed DEPUTY REGISTRAR.