https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1609

Wang'ombe & 2 others (As officials of the African Independent Pentecostal Church of Kenya) v Mwangi, Namemia, Kariuki (Suing as officials of the Specialized Healing Miracles Centre) & 4 others (Civil Appeal E053 of 2024) [2026] KECA 1609 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KECA 1609 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal E053 of 2024 JM Ngugi, MB Kairaria & AI Hassan, JJA July 31, 2026 Between Fredrick Wang'ombe 1st Appellant Charles Cyrus Njuguna 2nd Appellant Paul Kamau Mwangi 3rd Appellant As officials of the African Independent Pentecostal Church of Kenya and Elijah Njiiri Mwangi, Absalum Namemia, Adewa Rhodah N Kariuki (Suing as officials of the Specialized Healing Miracles Centre) 1st Respondent City Council of Nairobi (Now the Nairobi City County) 2nd Respondent George Kinuthia 3rd Respondent David Kimani 4th Respondent Anselimo Ruiga 5th Respondent (An appeal from the Ruling of the High Court at Nairobi (O.A. Angote, J.) delivered on 9th November, 2023 in ELC Appeal No. E083 of 2022) Judgment 1.The appellants, Fredrick Wang’ombe, Charles Cyrus Njuguna and Paul Kamau Mwangi, ask this Court to reverse the decision of the High Court of Kenya at Nairobi (O.A. Angote, J.) declining to grant them extension of time and leave to file an appeal out of time. 2.As this is a first appeal, we are under a duty to re-appraise and re-assess the evidence on record and reach our own conclusion on the matters in controversy as was held in Selle -vs- Associated Motor Boat Co Ltd [1968] EA 123 and as is mandated by rule 31(1) (a) of this Court’s Rules 2022. As the facts and issues in contention are fairly straightforward, a recap of the pleadings before the trial court at the outset will inform our re-appraisal and analysis of the matters at issue. 3.This appeal has, as its genesis, the ruling by the High Court at Nairobi in ELC Appeal No. E083 of 2022 delivered by O.A. Angote, J. on 9th November, 2023 in which the learned judge dismissed the Notice of Motion dated 23rd September, 2022. In that motion, the appellants as the applicants, sought leave to file and serve their memorandum of appeal out of time against the judgment of Hon. Gesora in Nairobi CMCC No. 194 of 2011. 4.The appellants contended that in CMCC No.194 of 2011 the matter was heard by the subordinate court and the respective parties were to make their submissions before the Chief Magistrate before the close of the case. However, the matter did not proceed from that point and the appellants never heard from the Court. The appellants contend that it was only on or about 21st September, 2022, that the 3rd appellant received a call from the City Hall Lands Department about a Decree in the matter. The appellants maintained that until then, they were not aware about a judgment or a decree in the matter. 5.It was the appellants’ further contention that the failure to file the memorandum of appeal was not deliberate and the delay was occasioned by the fact that judgment was delivered without notice to the appellants. The appellants also invited the Court to note that the matter was last mentioned in Court in 2019 when the COVID-19 measures were put in place. In respect to the plea for stay of execution pending appeal, the appellants urged the court to grant stay failure to which the appeal would be rendered a mere academic exercise. 6.The 1st Respondents opposed the application and in their grounds of opposition, contended that, the application was res judicata and that the appellants are guilty of material nondisclosure and therefore undeserving of the orders sought. 7.Upon considering the application, O.A. Angote, J. dismissed it in the ruling dated 9th November, 2023. In so doing, the court observed that although the subordinate Court had a duty to notify the Appellants about the judgment, that did not mean that the Appellants and their advocates could fold their hands and do nothing. The Court also observed that there is no evidence on record showing that the appellants wrote to the lower court seeking to find out about the progress of their matter. Additionally, the Court was of the view that the claim that the Covid-19 lockdown measures were in place in 2019 is not true as the lockdown was first announced in March 2020. 8.It concluded that the delay was inordinate and the reasons thereof were not explained satisfactorily. 9.Dissatisfied with that decision, the appellants filed this appeal seeking to upset that decision on the grounds inter alia that: the learned judge; exercised his discretion wrongly in dismissing the appellants’ motion dated 23rd September, 2022 seeking to set aside an undated judgment of Hon. P. Gesora in CMCC No.194 of 2011,erred when he failed to consider that failing to extend time as prayed by the appellants would precipitate grave injustice to the appellants; erred in failing to appreciate the appellants’ objections that the purported judgment of the lower court did not amount to a lawful judgment; erred when he failed to appreciate and consider that at all material times the appellants were in possession of the suit property, and therefore the respondents before him could not suffer any injustice by allowing the application for extension of time to challenge the lower court’s judgment, was openly biased against the appellants from the get go, erred in failing to appreciate that the appellants intended appeal was sound, fully meritorious and that the court ought to have granted the application for leave to appeal in the ELC appellate court. 10.The appellants urged this Court to vacate and set aside the dismissal order given on 9th November, 2023 and substitute it with an order allowing the appellants application dated 23rd September, 2022. 11.The applicants filed submissions dated 30th August, 2024. According to the appellants, the non-dating of the judgment, failure to state the place of delivery of the impugned judgment and failure to deliver the judgment in open court by the subordinate court renders the purported judgment nullity ab initio and that it is in contravention of Order 21 Rule 3 (1) of the Civil Procedure Rules. That the impugned judgment sought to be set aside was not a judgment envisaged by law and was unquestionably unlawful. The appellants cited the case of William Kinyanyi Onyango -vs- Independent Electoral and Boundaries Commission & 2 others [2013] eKLR wherein the High Court stated as follows: -“10.Dating a judgment or ruling is a requirement of law. It is a matter of substance and not a technicality. It engenders certainty of the decree or order. Order 21 rule 3 (1) of the Civil Procedure Rules 2010 for example provides that “a judgment pronounced by the judge who made it shall be dated and signed by him in open court at the time of pronouncing it. The language there is mandatory. The date of judgment impacts on the rights of parties: the time to lodge an appeal starts to run for example.” 12.The appellants submit that the ELC court failed to uphold the stare decisis doctrine of the constitution. That had the learned judge adhered to the doctrine of stare decisis, and followed the binding decisions cited to him, he would not have erred and misdirected himself in the manner he did. 13.The appellants finally submitted that judicial notice is to be taken that the matter was last mentioned in late 2019 during the period when the covid-19 measures were in place and that no notice of the delivery of judgment was issued by the court. Ultimately, the appellants argue that the learned judge of the ELC court failed to exercise his judicial mandate to further the cause of justice and that the ELC Court failed to administer justice and fairness to the appellants. 14.The 1st respondents, through submissions filed on 30th January 2024, contend that the grant of extension of time is not a party’s right but a discretionary remedy. In support of this position, reliance is placed on the Supreme Court decision in Nicholas Kiptoo Arap Korir Salat -vs- Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR). 15.On the length of delay, the 1st respondents submit that the impugned judgment was delivered on 26th June, 2020 while the application at the ELC was filed on 23rd September, 2022 and that a delay of over 2 years is undoubtedly inordinate. 16.The 1st respondents submit that no evidence was placed before the High Court to explain the delay of 2 years. They submit that the first case of covid-19 was reported in Kenya on 12th March, 2020 and lockdown measures installed thereafter. Therefore, the assertion that the delay was due to covid-19 is untrue. On prejudice, the 1st respondents submit that execution of the Decree has already commenced and that they would have been prejudiced had the application been allowed. 17.The 2nd respondent on its part, filed submissions dated 14th March, 2025 wherein it submitted that it supports the memorandum of appeal and has filed a notice of cross-appeal dated 22nd March, 2024. The 2nd respondent submits that this is a matter that warrants the intervention of this court as held in Mrao Ltd -vs- first American Bank of Kenya Ltd & 2 others (Civil Appeal 39 of 2002) [2003] KECA 175 (KLR). It is its submission that the appellants’ application met the threshold for extension of time. That the appellants laid sufficient reason for extension of time by providing sufficient reasons for the delay which admittedly is long. 18.The 5th respondent filed submissions dated 13th February, 2025 also in support of the memorandum of appeal. He argues that he was never served with any notice nor his advocates for the delivery of the impugned judgment. He submits that a party without knowledge of occurrence of events cannot be accused of lethargy. He argues that it is in the interest of justice that the High Court’s Ruling be set aside. On prejudice, he argues that no prejudice will be occasioned to any party as they shall have their day in court to ventilate the issues. 19.We have considered the ruling of the trial court, the record of appeal and the submissions of the parties. The crux of the appellants’ case is that the ELC erred in declining to extend time to file their appeal out of time against the Judgment of the lower Court. In considering these issues, we must determine whether the appellants sufficiently explained the delay in filing their claim to merit extension of time. 20.The decision extending time being an exercise of discretion, the same must be exercised on sound judicial principles. The learned Judge having exercised his discretion, the principles upon which this Court can interfere with that decision were reiterated by Madan, JA (as he then was) in United India Insurance Co. Ltd -vs- East African Underwriters (Kenya) Ltd [1985] E.A where he held that:“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.” 21.In our view, an applicant for extension of time must place before the Court material on the basis of which the Court can exercise its discretion in his favour. In other words, it is upon the applicants to supply the Court with the peg with which it can pitch its tent. 22.In this case, the appellants advanced two reasons as the reasons for the delay in filing the application at the ELC, Firstly, that the impugned judgment was delivered without notice to them and secondly, that the matter was last mentioned in late 2019 when lockdown measures had been put in place. 23.Turning on to the first reason, we agree with the learned judge that it was incumbent upon the appellants and their advocates to follow up with the lower court to find out the progress of their matter. It is now trite that litigants have a duty to follow up on their cases even after they hand them over to their advocates. A litigant who fails to do so cannot be heard to seek the court’s indulgence on the ground that an advocate’s mistake should not be visited on the client. However, in certain cases, it may be unjust to visit the sins of the advocate on the client. 24.In Philip Keipto Chemwolo & Another -vs- Augustine Kubende [1986] KECA 87 (KLR) (Platt, Gachuhi & Apallo JJ.A), as per Apaloo JA, the Court held, I think a distinguished equity judge has said:“Blunders will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case determined on its merits. I think the broad equity approach to this matter is that unless there is fraud or intention to overreach, there is no error or default that cannot be put right by payment of costs. The court, as is often said, exists for the purpose of deciding the rights of the parties and not for the purpose of imposing discipline….” 25.We are inclined to agree with the court and the respondents that the covid-19 measures were only put up in March 2020 and not in 2019 as submitted by the appellants. However; we take note that the impugned judgment was delivered in June 2020 soon after the Covid-19 pandemic struck. It is common knowledge that the pandemic affected normal operations on all spheres of life, including court operations. It is plausible that this is the reason parties did not get notice of the delivery of the judgment. 26.In Nicholas Mutuku Mwasuna -vs- Patricia Mueni Kilonzo [2022] KEHC 1839 (KLR) cited by the appellants, the Court observed as follows :-“It therefore follows that parties are entitled to a notice of the date of delivery of judgement and where such notice is not given, that omission may well amount to a sufficient reason for the purposes of enlargement of time to appeal if the applicant moves the Court for regularisation of his position expeditiously.” 27.Similarly, the Court of Appeal held in Ngoso General Contractors Ltd. -vs- Jacob Gichunge Civil Appeal No. 248 of 2001 [2005] 1 KLR 737 that:“The failure by the Superior Court Judge in an application for extension of time to file an appeal, to consider, as a matter of law, whether the Appellant, who was admittedly absent when the Judgement was delivered, was served with notice of delivery of the Judgement was a misdirection. The law under Order 20 Rule 1 is explicit in terms and mandatory in tone that a Judgement which is not delivered ex tempore must be delivered on a subsequent date only upon notice being given to all parties or their advocates and where only the successful party in the Judgement had prior knowledge of the delivery of the Judgement and no apparent reason was advanced for the failure to serve or to attempt to serve the Appellant or his advocate, the Appellant’s right of appeal was grossly compromised…An order was made by the Magistrate granting a right of appeal within 28 days and directing the party in attendance to inform the other side does not cure the flagrant breach of the mandatory procedural rule which accords with fundamental rules of natural justice and the right to be heard which the constitution safeguards.” 28.Accordingly, we are persuaded that the appellants’ failure to receive the notice of delivery of judgment is a sufficient and reasonable explanation for the delay. This was not disputed. 29.In the premises, this appeal succeeds and is hereby allowed. 30.The Ruling and Order dated 9th November, 2023 is hereby vacated and set aside. The appellants Notice of Motion dated 23rd September, 2022 is hereby allowed as therein prayed. 31.It is so ordered. DATED AND DELIVERED AT NAIROBI THIS 31ST DAY OF JULY, 2026.JOEL NGUGI..............................JUDGE OF APPEALMURUNGI B. KAIRARIA................................JUDGE OF APPEALAHMED ISSACK................................JUDGE OF APPEALI certify that this is a True copy of the originalSignedDEPUTY REGISTRAR