NAFTALI RUTHI KINYUA & ANOTHER V KENYA COMMERCIAL BANK LIMITED & ANOTHER [2009] KECA 148 (KLR)
The bottom line
#The Court of Appeal gave two borrowers seven days to file an appeal, but only if they first deposited over Kshs. 615,000 as security.
What this practically means
#Executive summary
#Key legal issues
#Whether extension of time should be granted under rule 4
Extension granted for seven days for filing and serving the notice of appeal, but made conditional on the applicants depositing the taxed costs of Kshs. 615,832.20 with the 1st respondent
The court weighed the applicants' explanation for the delay (learning of the ruling on 30th July 2009 and time needed to prepare the motion) against the litigation history of multiple suits against the bank and the justified fear the applicants might not pay costs. The deposit condition balances the applicants' right of appeal with protection of the respondents, refundable if the appeal succeeds.
Whether the delay of about twenty days after learning of the ruling was inordinate
The court did not make a definitive finding of inordinate delay; it accepted the delay may have been justified and treated it as a factor to be weighed rather than disqualifying
The court noted it may well be that the applicants only learned of the ruling on 30th July 2009 and that the twenty days taken to file the motion may have been necessary for the advocate to contact them and prepare. That explanation was weighed against the applicants' conduct in filing numerous cases, with the outcome being a conditional rather than outright refusal.
Whether the bill taxed at Kshs. 615,832.20 had been reduced by consent to Kshs. 28,225
The court expressed doubt about the applicants' contention and declined to rule conclusively on it
There were two distinct bills of costs: one filed on 5th December 2003 and taxed at Kshs. 615,832.20, and a second filed on 10th August 2007 and by consent taxed at Kshs. 28,225. The applicants contended the larger sum was agreed down to the smaller, but the consent order of 7th November 2007 did not support that, though the court left the point open.
Legal principles established
#- Under rule 4 of the Court of Appeal Rules the court's discretion to extend time is unfettered and is exercised to meet the justice of the case, taking into account the history of the litigation and the order against which appeal is proposed
Court orders
#- 1.Time within which to file and serve the notice of appeal enlarged; the notice to be filed and served within seven days of the date of the order
- 2.As a condition of the extension, the applicants to deposit Kshs. 615,832.20 with the 1st respondent in an interest-earning account in the joint names of the parties' respective advocates within thirty (30) days
- 3.If the applicants succeed in the intended appeal, the deposit and accruing interest to be refunded to them
- 4.If the applicants fail to comply with the deposit condition, the motion dated 20th August 2009 to stand dismissed with costs to the respondents
- 5.Costs of the motion to be in the intended appeal
- On appeal from
- High Court of Kenya
- HCCC No 394 of 2006 (ruling by Khaminwa, J)
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "NAFTALI RUTHI KINYUA & ANOTHER V KENYA COMMERCIAL BANK LIMITED & ANOTHER [2009] KECA 148 (KLR)", Case Analysis (2009). Notice of Motion dated and lodged 20th August, 2009 (Civil Application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/148/eng@2009-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.