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Court of AppealAllowedCivil Application No. NAI 7 of 1997· [1997] KECA 418 (KLR)

Kenya Commercial Bank v Mwanzau Mbaluka Lazarus Kitili Vetu

Court of Appeal
7 November 1997
ASA. B. Shah
3,150 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed a single judge can revive a struck-out appeal, letting KCB refile its appeal despite a wrong decree date.

What this practically means

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Executive summary

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This is a single-judge (in chambers) ruling of the Court of Appeal by Shah JA on an application by Kenya Commercial Bank for extension of time to file a notice of appeal and record of appeal out of time, following the striking out of Civil Appeal No. 130 of 1994 because the decree appealed against bore a date later than the judgment. The respondent raised two objections: that the error in the decree should have been deponed to by the Deputy Registrar, and that the Court of Appeal lacked original jurisdiction, the application belonging first in the High Court. Shah JA dealt first with jurisdiction, surveying four decades of authority from the Court of Appeal for Eastern Africa onwards - Harnam Singh Bhogal, Ngoni Matengo, Belinda Murai and the full-court reference confirming Law JA's decision - all establishing that a single judge of the Court may entertain and allow extension applications and readmit struck-out appeals. Holding himself bound by stare decisis, he declined to follow the contrary view expressed by the Chief Justice in the Afro Meat Company application, and distinguished G.S. Suri v Royal Credit Ltd. He held that section 7 of the Appellate Jurisdiction Act gives the High Court a discretion but does not oust this Court's jurisdiction, and that rule 82(a) does not deem a notice of appeal withdrawn where an appeal has been struck out. On the merits he found the decree's wrong date a probable typographical error requiring no affidavit from the Deputy Registrar, found no undue delay, allowed the application, and ordered refiling of the notice within seven days and the record within 21 days thereafter, with costs in the intended appeal.

Key legal issues

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01

Jurisdiction of a single judge to hear extension-of-time applications

Holding

The single judge has jurisdiction; the application need not first be filed in the High Court.

Reasoning

Forty years of decisions of the Court of Appeal and its predecessors, from Ngoni Matengo through Belinda Murai and the full-court reference, clothed the court with jurisdiction under rule 9 (now rule 4). Bound by stare decisis, the judge declined to follow the contrary view in the Afro Meat Company application. Section 7 of the Act confers a discretion on the High Court but does not oust this Court's jurisdiction.

p. 3
02

Effect of striking out an appeal on the notice of appeal

Holding

Striking out a record of appeal does not withdraw the original notice of appeal; refiling a fresh notice is superfluous, done only ex abundanti cautela.

Reasoning

Rule 82(a) deems a notice withdrawn only where a party fails to institute an appeal within the appointed time; it does not apply to appeals struck out. The appellant who promptly applies for extension of time has not manifested an intention to abandon the appeal, so the original notice remains effective.

p. 4
03

Merits and delay

Holding

The appeal was struck out only because the decree bore an incorrect date, probably a typographical error; no affidavit from the Deputy Registrar was needed, and there was no undue delay.

Reasoning

The decree dated 8th July 1994 followed a judgment of 17th June 1994; the discrepancy was likely typographical and the applicant's counsel's uncontradicted explanation sufficed. The application filed 16th January 1997, following the strike-out of 4th December 1996, was not delayed.

p. 5

Legal principles established

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  • A single judge of the Court of Appeal has jurisdiction to entertain and allow an application for extension of time to file a notice of appeal and record of appeal, or to readmit a struck-out appeal.
  • An appeal struck out for being incompetent may be refiled; striking out does not amount to dismissal or withdrawal of the notice of appeal.

Court orders

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  1. 1.The notice of appeal be refiled within the next seven days
  2. 2.The record of appeal be refiled within 21 days thereafter
  3. 3.Costs of the application to be costs in the intended appeal

Authorities

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Legislation

  • Appellate Jurisdiction Actsection 7
  • Appellate Jurisdiction Actsection 10
  • Civil Procedure Actgeneral
  • Court of Appeal Rulesrule 4
  • Court of Appeal Rulesrule 41
  • Court of Appeal Rulesrule 54
  • Court of Appeal Rulesrule 74 (2)
  • Court of Appeal Rulesrule 76 (2)
  • Court of Appeal Rulesrule 82 (a)
  • Court of Appeal Rulesrule 5 (2) (b)
  • Civil Procedure RulesOrder 41 rule 4(1)
  • E.A.C.A. Rulesrule 9 (1)

Cases cited (9)

  • Gabriel Kigi & 6 Others v Kimotho Mwaura & Another
    Civil Application No. NAI 197 of 1997 (Unreported)

    Single judge ruling of 5th November 1997 on where extension applications are filed

  • Robinson & Others v Muthami
    Civil Application No. NAI 187 of 1997 (Unreported)

    Bosire Ag.JA: an appellant whose appeal was struck out may move for extension of time to lodge a competent appeal

  • Ngoni Matengo Co-operative Marketing Union Ltd v Osman
    [1959] E.A. 577

    Court may permit lodging an appeal on showing of sufficient reason for extension of time

  • Elizabeth Kamene Ndolo v George Matata Ndolo
    Civil Application No. NAI 104 of 1995 (Unreported)

    Right to move for extension after strike-out

  • Harnam Singh Bhogal v Jadwa Karsan
    [1953] 20 E.A.C.A.

    Power under rule 9(1) to extend time for entering an appeal; declined extension for insufficiency of grounds

  • Belinda Murai (Widow of Ignatius Mura) & Others v Amos Wainaina
    Civil Application No. NAI 9 of 1978 (Unreported)

    Jurisdiction to reinstate a struck-out appeal; extension of time granted

  • Afro Meat Company application

    Chief Justice's contrary view that extension applications must first be filed in the High Court

  • G.S. Suri & Anor v Royal Credit Ltd
    Civil Application No. NAI 281 of 1995 (Unreported)

    Held Jean Pierre Deleu per incuriam on stay under rule 5(2)(b); did not oust this Court's jurisdiction to extend time

  • Jean Pierre Deleu v Adrian Muteshi
    Civil Application No. NAI 169 of 1995 (Unreported)

    Held per incuriam in Suri as regards stay of execution

On appeal from
High Court of Kenya at Machakos
H.C.C.C. No. 105 of 1994
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules read with section 7 of the Appellate Jurisdiction Act (Cap 9)

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, "Kenya Commercial Bank v Mwanzau Mbaluka Lazarus Kitili Vetu", Case Analysis (1997). Civil Application No. NAI 7 of 1997. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/418/eng@1997-11-07

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