LAWI KIPLAGAT vs DELPHIS BANK LIMITED [2000] KECA 318 (KLR)
The bottom line
#Delphis Bank announced an appeal but never filed one, so Kenya's Court of Appeal struck out its notice, ending the intended appeal.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the notice of appeal dated and lodged in court on 29th May 2000 ought to be struck out where the intending appellant has not filed the appeal.
Key legal issues
#Whether a notice of appeal should be struck out where the intending appellant has lodged the notice but has not filed the appeal.
Yes. Where the notice of appeal has been lodged but no appeal has been filed even after the proceedings were made available for collection, the opposing party is entitled to ask that the notice of appeal be struck out, and the court will strike it out with costs to the applicant.
The court reconstructed the procedural history: the High Court ruling was delivered on 18th May 2000; the respondent bank filed its notice of appeal on 29th May 2000; it applied for the proceedings on 23rd June 2000; and the Deputy Registrar notified it on 8th August 2000 that the proceedings were ready for collection. Notwithstanding that the record was available, no appeal had been filed. The court treated that inaction as entitling the applicant to move against the notice of appeal. With the respondent's advocates served but absent from the hearing, the court allowed the motion, struck out the notice, and gave the applicant the costs of the motion.
Legal principles established
#- Where a notice of appeal has been lodged but no appeal has subsequently been filed, the opposing party is entitled to have the notice of appeal struck out.
Court orders
#- 1.The application is allowed.
- 2.The notice of appeal dated and lodged in court on 29th May 2000 is struck out.
- 3.The applicant is awarded the costs of the motion.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 1127 of 1995
- Jurisdiction invoked
- Not stated in the ruling. The court determined a civil application to strike out a notice of appeal in an intended appeal from the High Court of Kenya at Nairobi; no constitutional or statutory provision is cited in the ruling.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
No appeal has been filed and in the circumstances the applicant is entitled to ask that the notice of appeal be struck out.
We allow the application, and strike out the notice of appeal dated and lodged in court on 29th May, 2000. We award to the applicant the costs of this motion.
The Deputy Registrar of the superior court informed the respondent on 8th August, 2000, that the proceedings requested by the respondent were ready for collection as at that date.
Issues in the judgment
#Internal chronological contradiction: the ruling is stated to have been dated and delivered on 4th June 2000, yet its body recounts events that occurred after that date, so the printed delivery date cannot be correct as printed.
The narrative dates post-date the stated delivery date of 4th June 2000 (application for proceedings on 23rd June 2000 and notice of readiness on 8th August 2000), indicating a typographical error in either the delivery date or the narrative dates.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "LAWI KIPLAGAT vs DELPHIS BANK LIMITED [2000] KECA 318 (KLR)", Case Analysis (2000). Civil Application No. NAI 341 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/318/eng@2000-06-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.