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Court of AppealDismissedCivil Application No. NAI 361 of 1996· [1997] KECA 170 (KLR)

ISAAC NDISO MALINDA & 2 OTHERS vs KENYA COMMERCIAL BANK LTD [1997] KECA 170 (KLR)

Court of Appeal
20 January 1997
AAA. M. AkiwumiPhilip Kiptoo TunoiP. K. TunoiALA. A. Lakha
297 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to strike out KCB's appeal because the delay was caused by the High Court, not the bank.

What this practically means

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Executive summary

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This is a short ruling of the Court of Appeal at Nairobi (Akiwumi, Tunoi and Lakha, JJ.A.) delivered on 20 January 1997 in Civil Application No. NAI 361 of 1996. The applicants, Isaac Ndiso Malinda, Catherine N. Mutisya and David Mutua Wambua, sought to strike out the notice of appeal and draft memorandum of appeal filed by Kenya Commercial Bank Ltd, contending that no essential step required under the Court of Appeal Rules had been taken by the Respondent. The application arose from a ruling and order of the High Court of Kenya at Nairobi (Bosire, J) dated 25 November 1993 in H.C.C.C. No. 4599 of 1993. The court considered the Respondent's Replying Affidavit, which demonstrated that the Respondent had pursued the obtaining of the record of appeal from the superior court with vigour. While acknowledging that there had been some delay, the court held that the delay in preparation of the record of appeal by the superior court could not be attributed to the Respondent and was, in the peculiar circumstances, beyond its control. The application was accordingly dismissed, with costs ordered to abide the appeal, and the court expressed the expectation that the appeal would be filed with alacrity once the record of appeal became available. The ruling is a brief, unanimous decision of the full bench with no separate opinions and no authorities cited.

Key legal issues

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01

Whether an appeal should be struck out for failure to take an essential step under the Court of Appeal Rules

Holding

The application was dismissed because the delay was not the Respondent's fault; the superior court's delay in preparing the record could not be visited on the Respondent.

Reasoning

The court examined the Replying Affidavit, which showed the Respondent had actively pursued the record of appeal from the High Court. Although there had been some delay, the court found that in the peculiar circumstances of the application the delay was beyond the Respondent's control. Striking out is a drastic remedy not warranted where the default stems from the court's own processes, and the appeal was expected to be filed promptly once the record became available.

p. 2

Legal principles established

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  • A notice of appeal will not be struck out where the delay in taking essential steps, such as obtaining the record of appeal, is beyond the control of the party and attributable to the superior court

Court orders

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  1. 1.The application to strike out the notice of appeal and draft memorandum of appeal is dismissed
  2. 2.Costs to abide the appeal
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 4599 of 1993
Jurisdiction invoked
Court of Appeal Rules - application to strike out a notice of appeal for failure to take essential steps under the Court's Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "ISAAC NDISO MALINDA & 2 OTHERS vs KENYA COMMERCIAL BANK LTD [1997] KECA 170 (KLR)", Case Analysis (1997). Civil Application No. NAI 361 of 1996. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/170/eng@1997-01-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.