Mechanical Engineering Plant & 2 others v Standard Chartered Bank Kenya Ltd
The bottom line
#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
#Executive summary
#Key legal issues
#Competency of a record of appeal filed by an advocate without a current practising certificate
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.
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.
Exercise of discretion under rule 4 to extend time after striking out
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.
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.
Legal principles established
#- 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
#- 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.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.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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.