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Court of AppealOtherCivil Appli. Nai 162 of 2007 (UR 106/2007)· [2007] KECA 17 (KLR)

The Kenya Anti-corruption Commission v First Mercantile Securities Corporation

Court of Appeal
12 October 2007
1,078 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that duplicate notices of appeal don't invalidate a case, and a notice cannot be withdrawn by merely writing a letter.

What this practically means

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Executive summary

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The Court of Appeal at Nairobi (Tunoi, Githinji and Deverell, JJ A) ruled on a preliminary objection taken against the Kenya Anti-Corruption Commission's application for a stay of a High Court order pending the lodging, hearing and determination of an intended appeal. On 28th June, 2007 Nyamu J granted the respondent leave to commence judicial review proceedings against the Commission, with the leave to operate as a stay of the implementation of a Mutual Legal Assistance request to the Swiss Confederation, barring the Commission from receiving, acting upon or publishing reports from the requested State concerning the applicant, its directors, shareholders, consultants or agents. The Commission lodged two notices of appeal against that single decision: one filed on 11th July, 2007 by its in-house advocate, Mr. Kimani, and a second lodged through Messrs Mohamed Muigai Advocates the next day. Mr. Kimani then wrote to the Deputy Registrar purporting to withdraw the first notice. Counsel for the respondent objected that only one notice of appeal may lawfully be filed on a single decision and that a notice cannot be withdrawn by letter, so the entire motion was vitiated and had to be struck out. The court held that the rules contain no provision for withdrawing a notice of appeal, which remains on record until struck out or dealt with under rule 82, and that a letter to the Court is ineffective. Rule 5(2)(b) is satisfied where a notice of appeal - even more than one - has been lodged; duplication, though a procedural blunder, prejudices no one, and the only cure for multiple notices is a striking-out application. The preliminary objection was dismissed, with costs in the application.

Key legal issues

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01

Whether two notices of appeal may lawfully be filed in respect of a single decision of the superior court

Holding

Yes. The rules prohibit neither duplication nor treat it as fatal; rule 5(2)(b) requires only that a notice of appeal has been lodged, and where two have been lodged it cannot be said that none has been lodged. Duplication is a procedural blunder but causes the opposite party no prejudice, and an application under rule 5(2)(b) remains validly lodged so long as at least one notice subsists.

Reasoning

The two notices, filed on consecutive days by different advocates acting for the same applicant, attacked the same order of Nyamu J. The court read rule 5(2)(b) literally: the rule requires only that a notice of appeal has been lodged and does not stipulate one and not more than one. Duplication of notices on the same decision and issues, though a procedural blunder, does not prejudice the opposite party; the multiplicity may be cured only by a striking-out application, not by treating the appeal or the motion predicated on it as a nullity.

p. 2
02

Whether a notice of appeal can be withdrawn by a letter addressed to the Court

Holding

No. There is no provision in the rules permitting a party to withdraw a notice of appeal it has filed. Once on record, a notice of appeal remains until struck out or dealt with under rule 82 for failure to institute the appeal in time; a letter addressed to the Court is ineffective and the purported withdrawal is a nullity.

Reasoning

The court examined the Court of Appeal Rules and found no rule authorising a party to withdraw a notice of appeal it had filed. Once lodged, a notice of appeal stays on the record until it is struck out or dealt with under rule 82 where the appellant fails to institute the appeal within the prescribed time. The letter written by Mr. Kimani to the Deputy Registrar therefore had no legal effect: the notice of 11th July, 2007 subsisted alongside the later notice lodged through Messrs Mohamed Muigai Advocates, leaving two subsisting notices of appeal on one intended appeal.

p. 2
03

Whether the existence of two subsisting notices of appeal vitiates the Notice of Motion for stay so that it must be struck out

Holding

No. The proper remedy for a multiplicity of notices of appeal on the same decision is a successful application to strike out one or more of them. So long as at least one notice of appeal is on record, an application under rule 5(2)(b) has been validly lodged and can be considered.

Reasoning

Counsel for the respondent argued that because two notices subsisted and the attempt to withdraw one by letter was a nullity, the entire motion was vitiated and had to be struck out. The court rejected that argument: the rules' silence on withdrawal means the cure for a multiplicity of notices lies in a striking-out application, and the presence of an extra notice neither invalidates the appeal nor prejudices the respondent. The preliminary objection was therefore dismissed and the stay application remained properly before the court for consideration on its merits.

p. 2

Legal principles established

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  • A notice of appeal, once filed, cannot be withdrawn by letter: the Court of Appeal Rules contain no provision for its withdrawal, and it remains on the record until struck out or dealt with under rule 82 where the appeal is not instituted in time.
  • Filing more than one notice of appeal on the same decision does not invalidate the appeal or defeat a rule 5(2)(b) application predicated on it.
  • The only lawful cure for a multiplicity of notices of appeal on one decision is a successful application to strike out one or more of them; until that is done, at least one subsisting notice anchors a valid rule 5(2)(b) application which the court can consider.

Court orders

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  1. 1.Preliminary objection to the Notice of Motion for stay dismissed.
  2. 2.Costs shall be in the application.
On appeal from
High Court of Kenya at Nairobi
H.C. Misc. C. Appl. No. 695 of 2007
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (the Rules of this Court) - application for stay of the superior court's order pending the lodging, hearing and determination of an intended appeal

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, "The Kenya Anti-corruption Commission v First Mercantile Securities Corporation", Case Analysis (2007). Civil Appli. Nai 162 of 2007 (UR 106/2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/17/eng@2007-10-12

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