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Court of AppealPartially AllowedCivil Application No. NAI 83 of 2001· [2001] KECA 210 (KLR)

Daima Bank Limited v Samuel Kamau Macharia [2001] KECA 210 (KLR)

Court of Appeal
15 June 2001
ROR. S. C. OmoloSBS. E. O. BosireEOE. O. O'Kubasu
669 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed a notice of appeal filed before the judgment being appealed is fatally defective and cannot be fixed by amendment.

What this practically means

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Executive summary

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This was an interlocutory application in the Court of Appeal at Nairobi by Daima Bank Limited seeking to strike out a notice of appeal filed by Samuel Kamau Macharia against a judgment of Onyango Otieno J in H.C.C.C No. 628 of 1998 delivered on 18th May 2000. The applicant argued that the notice of appeal was incurably defective because, although the judgment was delivered on 18th May 2000, the notice stated it was lodged in the High Court on 19th May 1999 - a full year before the judgment existed. Counsel for the respondent conceded the 1999 date but urged the court to look at a rubber stamp showing lodgment on 23rd May 2000. The court, per a single unanimous ruling of Omolo, Bosire and O'Kubasu JJ.A, considered Rule 74(6) of the Court of Appeal Rules, which requires a notice of appeal to be substantially in Form D of the First Schedule. It held that a notice purporting to have been lodged well in advance of the judgment appealed from is clearly defective; and because a notice of appeal is a primary document, it cannot be amended, so the defect is incurable. The court struck out the notice of appeal and made no order as to costs. The ruling binds the High Court and subordinate tribunals on the incurability of such defects in notices of appeal.

Key legal issues

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01

Whether a notice of appeal dated prior to the judgment appealed from is incurably defective

Holding

A notice of appeal lodged, on its face, before the judgment to be appealed from was delivered is defective and, being a primary document, cannot be amended; the defect is incurable and the notice must be struck out.

Reasoning

Rule 74(6) of the Court of Appeal Rules requires a notice of appeal to be substantially in Form D of the First Schedule. The notice here stated it was lodged on 19th May 1999, yet the judgment of Onyango-Otieno J was delivered on 18th May 2000. The court held this absurdity rendered the notice defective. Because the notice of appeal is a primary document, the defect could not be cured by amendment, leaving the court no alternative but to strike it out.

p. 2

Legal principles established

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  • A notice of appeal that purports to have been lodged before the judgment it appeals from was delivered is defective, and being a primary document it cannot be amended; the defect is incurable.

Court orders

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  1. 1.The notice of appeal filed on 19th May 2000 be and is hereby struck out
  2. 2.No order as to costs

Authorities

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Legislation

  • Court of Appeal RulesRule 74(6)
  • Court of Appeal RulesRule 74
  • Court of Appeal RulesRules 42, 43, 74, 80 and 81
  • Court of Appeal RulesFirst Schedule, Form D
On appeal from
High Court of Kenya, Nairobi
H.C.C.C No. 628 of 1998
Jurisdiction invoked
Rules 42, 43, 74, 80 and 81 of the Court of Appeal Rules (application to strike out a notice of appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Daima Bank Limited v Samuel Kamau Macharia [2001] KECA 210 (KLR)", Case Analysis (2001). Civil Application No. NAI 83 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/210/eng@2001-06-15

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