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Court of AppealAllowedCivil Application (rule 4 motion) arising from Civil Appeal No. 60 of 2008· [2009] KECA 133 (KLR)

Mechanical Engineering Plant & 2 others v Standard Chartered Bank Kenya Ltd

Court of Appeal of Kenya
9 October 2009
614 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~2 min to read original · ~4 min brief

The bottom line

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The Court of Appeal allowed litigants whose appeal was struck out to restart it, ruling that a fresh appeal can be filed within a granted time extension.

What this practically means

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Executive summary

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This is a ruling by Bosire, JA of the Court of Appeal at Nairobi on a rule 4 application by Mechanical Engineering Plant Ltd., Ernest Mungai Kamau and Florence Njeri Kamau, against Standard Chartered Bank Kenya Ltd. Their appeal, Civil Appeal No. 60 of 2008, against a High Court decision of 12th March 2008 in High Court Civil Case No. 92 of 2007, had been struck out on 17th July 2009 because the record of appeal was filed by a person without a current Advocates Practising Certificate, whose acts were a nullity under section 9 of the Advocates Act. The applicants moved promptly, about seven days later, for extension of time to file and serve a fresh notice of appeal and record of appeal. The court reaffirmed that a party whose appeal has been struck out as incompetent may seek such an extension; the period before the striking-out counts only to show dilatoriness, since the striking-out is itself sufficient punishment for the underlying acts or omissions. Finding the application prompt and fit for the exercise of the court's unfettered discretion, the judge extended time by ten days for filing and serving a fresh notice of appeal and a further thirty days from service for filing and serving the record of appeal. The applicants were ordered to bear the costs of the motion, to be taxed if not agreed.

Key legal issues

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01

Competency of a record of appeal filed by an advocate without a current practising certificate

Holding

A person without a current Advocates Practising Certificate is not competent to act as an advocate under section 9 of the Advocates Act; anything he does in that capacity is a nullity, justifying striking out of the appeal.

Reasoning

The record of appeal in Civil Appeal No. 60 of 2008 was filed by a person describing himself as an advocate who lacked a current practising certificate on the filing date. Section 9 of the Advocates Act (Cap 16) rendered him incompetent to act. His acts as such were a nullity, so the appeal was struck out as incompetent on 17th July 2009.

p. 1
02

Exercise of discretion under rule 4 to extend time after striking out

Holding

Prompt application after a striking-out justifies exercise of the Court's unfettered discretion under rule 4; prior delay attributable to the struck-out appeal is not counted against the applicant once the appeal has been struck out.

Reasoning

The application was filed only about seven days after the appeal was struck out. The respondents' opposition relied on acts and omissions relating to the struck-out appeal, for which the applicants had already been punished by losing their counsel fees, preparation costs and court fees. Promptness made this a fit case for extension.

p. 2

Legal principles established

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  • A party whose appeal has been struck out as incompetent may apply for extension of time to file and serve a fresh notice of appeal and a fresh record of appeal.
  • The period before the striking out of an appeal is only relevant to extension-of-time applications where it shows a tendency to be dilatory; the striking out itself is sufficient punishment for the acts or omissions that led to it.

Court orders

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  1. 1.Extension of time by ten (10) days from the date of the ruling for the applicants to file and serve a fresh notice of appeal
  2. 2.Further extension of thirty (30) days from the date of service of the notice of appeal within which to file and serve a record of appeal
  3. 3.Costs of the motion dated 23rd but filed on 24th July 2009 to be borne by the applicants, to be taxed if not agreed
On appeal from
High Court of Kenya
High Court Civil Case No. 92 of 2007
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (inherent discretionary power to extend time)

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, "Mechanical Engineering Plant & 2 others v Standard Chartered Bank Kenya Ltd", Case Analysis (2009). Civil Application (rule 4 motion) arising from Civil Appeal No. 60 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/133/eng@2009-10-09

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