The Delphis Bank Limited v Recco Builders Limited & 1 other
The bottom line
#Kenya's Court of Appeal ruled a late appeal notice dies automatically under rule 82(a) without any court order, but granted the bank fresh leave to appeal.
What this practically means
#Executive summary
#Key legal issues
#Effect of rule 82(a) on an uninstituted notice of appeal
A notice of appeal that has not been instituted within the appointed time is deemed withdrawn by operation of law; no order of the court striking it out is necessary, so there is no subsisting notice of appeal on record.
The court reasoned that the words 'shall be deemed to have withdrawn' operate as if the appellant had personally withdrawn the notice; a withdrawn notice is of no effect and cannot be relied upon, so it need not be struck out by the court. The court aligned itself with Kamau Kibanja v Noordin Construction as described by Lakha JA in Major Joseph Mweteri Igweta, and with O'Kubasu JA's ruling in K and K Amman, while acknowledging the earlier conflicting full-Court decision of 4th June 1999.
Informal oral amendment of prayers under rule 42(3)
An application made in the course of a hearing may be made informally under rule 42(3), and the fact that the amendment was prompted by issues raised in the respondent's replying affidavit is no obstacle to a meritorious amendment; leave to amend was granted in the interests of justice.
The oral application fell within rule 42(3), which disapplies the motion requirement for applications made in the course of a hearing. The amendment was critical because an order extending time to lodge the record alone would be futile, as the notice of appeal was deemed withdrawn and no valid record of appeal could be filed without a valid notice of appeal.
Non-compliance with rule 81(2) in bespeaking proceedings
Failure to send a copy of the bespeaking letter to the respondent deprives the appellant of the automatic extension of time under rule 81(1), but the days taken by the Deputy Registrar may still be taken into account in the exercise of the court's discretion under rule 4.
Rule 81(2) conditions the automatic extension on a written application for copies being served on the respondent. The Bank's advocates did not copy the letter to the respondents, so no automatic extension arose; however, this was a mistake that did not bar discretionary relief, and the applicant had otherwise acted promptly throughout.
Exercise of discretion under rule 4: delay, merits and prejudice
The applicant had acted promptly and its only significant mistake was the rule 81(2) failure; the intended appeal challenging the grant of the injunction was not frivolous; and the respondents would suffer no prejudice since they remained protected by the superior court injunction. Extensions of time were therefore granted.
The court considered the length of the delay (nearly 11.5 months), the reasons for it, and the merits: the superior court stated the Giella v Cassman Brown principles but did not find a prima facie case with a probability of success, instead resolving the matter on the balance of convenience, which raised non-frivolous issues. The respondent would remain protected by the injunction until the appeal was heard.
Legal principles established
#- Under rule 82(a) of the Court of Appeal Rules, a notice of appeal is deemed withdrawn by operation of law upon failure to institute the appeal within the appointed time, without any need for a court order striking it out.
- A single Judge of the Court of Appeal is bound by a prior decision of the full Court and is not free to depart from it on the ground that it is wrong; where two conflicting decisions of the full Court exist, a single Judge may choose between them.
Court orders
#- 1.Leave granted to the applicant to amend the prayers in the motion to include a prayer for leave to lodge a fresh notice of appeal out of time
- 2.The Amended Notice of Motion with the amendments marked in accordance with rule 16(2) to be filed and served within 3 days of delivery of the ruling
- 3.The applicant to file and serve a fresh notice of appeal within seven days of the date of the ruling
- 4.The applicant to lodge and serve the record of appeal within twenty one days from the date the notice of appeal is lodged in Court
- 5.Costs of the application to be in the intended appeal
- 6.Upon failure to comply with orders (1) and (2) within the stated periods, orders 1, 2 and 3 to automatically stand vacated and the application to stand dismissed with costs, no further order of the court being necessary
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (power to extend time for doing any act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "The Delphis Bank Limited v Recco Builders Limited & 1 other", Case Analysis (2005). Civil Application (rule 4 extension of time application; number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2005/322/eng@2005-10-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.