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Court of AppealPartially AllowedCivil Appli Nos. 194, 195 & 196 of 2006· [2007] KECA 167 (KLR)

Rajnikant Karsandas Somaia v Oriental Commercial Bank of Ltd (formerly Delphis Bank Limited) & 5 others [2007] KECA 167 (KLR)

Court of Appeal of Kenya
30 November 2007
Philip Kiptoo TunoiP.K. TunoiPWP.N. WakiJOJ.W. Onyango Otieno
2,741 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 struck out three notices of appeal because a vague omnibus notice blocked later, more specific ones.

What this practically means

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Executive summary

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Three applications by Rajnikant Karsandas Somaia, consolidated by a differently constituted bench on 23rd March 2007, sought to have three Notices of Appeal filed by Oriental Commercial Bank (formerly Delphis Bank) deemed withdrawn or struck out. The notices arose from rulings of Tanui, J in the High Court at Kisumu on 4th May 2005 in H.C.C.C. No. 164 of 2003, when the court refused to deny audience to Mr Menezes, ordered the bank to begin its case, and summarily dismissed the bank's counter-claim. The bank filed an omnibus Notice of Appeal dated 5th May 2005 against the whole decision, followed by two specific notices dated 10th and 16th May 2005 challenging the Menezes audience ruling and the dismissal of the counter-claim respectively. The applicant contended the omnibus notice was defective under rule 74(3) of the Court of Appeal Rules and that no second notice could be filed while the first remained on record. The Court of Appeal held that rule 74(3) is mandatory and that the notice of 5th May 2005, appealing against the whole decision including an order in the bank's own favour, was incurably defective. Because that original notice remained extant and could not be separated from the two later notices, the latter were not properly on record. The court declined to consider whether the notices should be deemed withdrawn for lapse of time, since the appeals had in the meantime been filed and their validity was not before it. All three applications were allowed; all three notices of appeal were struck out, with the first respondent to pay the costs of each application.

Key legal issues

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01

Validity of an omnibus Notice of Appeal under rule 74(3)

Holding

A Notice of Appeal appealing against 'the whole of the said decision' where several orders were made, one of which was in the appellant's favour, is defective and invalid because it fails to specify the part complained of.

Reasoning

Rule 74(3) is couched in mandatory terms: a notice must state whether the appeal is against the whole or part of a decision and, where only part, must specify that part. The Notice of 5th May 2005 targeted the whole decision of 4th May 2005, including an order granting leave to appeal in the bank's own favour, and did not specify the decisions it truly challenged. Counsel for the bank conceded the defect, and the court agreed the notice was incurably defective, applying Richard Kanyago v David Mukii Mereka.

p. 4
02

Filing subsequent Notices of Appeal while an original Notice of Appeal remains on record

Holding

Once an original Notice of Appeal exists on record, later Notices of Appeal directed at parts of the same decision cannot properly be filed or stand on the record, even if intended to originate different appeals.

Reasoning

The defective omnibus Notice of 5th May 2005 covered the same two decisions addressed by the notices of 10th and 16th May 2005. Since it had not been struck out, it remained extant, and the two later notices were filed during its lifetime. Following South Nyanza Sugar Co. Ltd v Hesbon Onyuro, Trans National Bank of Kenya v Hassan Amdun and Fortune Finance Ltd v Geoffrey Ngugi Githaiga, the court held that no fresh notice may be filed while the original remains on record.

p. 4
03

Deeming notices of appeal withdrawn for failure to institute appeals

Holding

The court declined to rule on whether the notices should be deemed withdrawn for lapse of time because the appeals had already been filed, rendering that question moot; the validity of the filed appeals was likewise not before the court.

Reasoning

The applications sought withdrawal of the notices on the ground that over twelve months had elapsed without appeals being instituted. Since the appeals had in the interim been filed, the factual predicate for the prayer had disappeared. The court also declined to examine the validity of the filed appeals, noting its decision would simply help the parties chart their next course in those appeals.

p. 5

Legal principles established

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  • A Notice of Appeal that does not comply with rule 74(3) of the Court of Appeal Rules - failing to state whether the appeal is against the whole or part of the decision and to specify the part complained of - is not a valid Notice of Appeal and is incurably defective.
  • So long as an original Notice of Appeal remains on record, no further or fresh Notice of Appeal may properly be filed in respect of the same matter; subsequent notices are not properly on record.
  • An omnibus Notice of Appeal against the whole of a decision covering several orders cannot be separated from later specific notices directed at parts of that same decision.

Court orders

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  1. 1.The three applications (Civil Appli 194, 195 and 196 of 2006) are allowed
  2. 2.The Notices of Appeal dated 5th May 2005, 10th May 2005 and 16th May 2005 are each struck out
  3. 3.The first respondent shall pay the costs of each application
On appeal from
High Court of Kenya at Kisumu
H.C.C.C. No. 164 of 2003
Jurisdiction invoked
Inherent/appellate jurisdiction of the Court of Appeal over notices of appeal, under the Court of Appeal Rules (rule 74(3))

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, "Rajnikant Karsandas Somaia v Oriental Commercial Bank of Ltd (formerly Delphis Bank Limited) & 5 others [2007] KECA 167 (KLR)", Case Analysis (2007). Civil Appli Nos. 194, 195 & 196 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/167/eng@2007-11-30

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