NATIONAL BANK OF KENYA LTD v KATANGI DEVELOPERS LTD & another [2009] KECA 225 (KLR)
The bottom line
#Kenya's Court of Appeal refused to excuse a bank's five-year delay in serving appeal documents, confirming that service rules are mandatory and strangers to a case cannot be dragged into appeals.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court should extend time for service of the notice of appeal and record of appeal on the respondents
- 2.Whether the respondents, who were not parties to the proceedings in the superior court, are persons directly affected by the appeal for purposes of rule 76(1) and can properly be enjoined in the appeal
Key legal issues
#Whether extension of time should be granted for service of the notice of appeal and record of appeal
Extension refused. The discretion under rule 4 is unfettered but must be exercised judicially; the applicant's inactivity from 2002 to 2008 was inordinate, unexplained, and would prejudice the respondents. The applicant is guilty of laches.
Although counsel's omission may have been an innocent mistake, the Court will not shut the door of justice on that ground alone; the decisive factors were the length and unexplained nature of the delay, the applicant's laches, and the prejudice to the respondents. The applicant had known of the respondents since April 2002 yet took no steps to bring them on record or to encumber the title until the motion of July 2008.
Whether persons not parties to the superior court proceedings can be served with, or joined through, the notice of appeal
No. Rule 76(1) and its proviso are mandatory; the respondents were not parties to the superior court proceedings, were not named in the pleadings or the decision appealed from, and accordingly lack locus standi to be brought into the appeal. There is also no order against them capable of being appealed against.
The object of rule 76(1) is that persons directly affected by an appeal should have an opportunity to be heard. But the respondents took no part in the superior court proceedings and could have been impleaded there only by amendment or separate proceedings. Dragging them into the appeal would be the height of injustice, as they would be unable to answer allegations, such as fraud, foreign to the pleadings between the original parties.
Legal principles established
#- The requirements of rule 76(1) of the Court of Appeal Rules and its proviso, requiring service of the notice of appeal on all persons directly affected by the appeal, are mandatory.
- A person who was not a party to the suit in the superior court cannot be brought in as a party to the appeal; no appeal lies against a person who was not properly before the superior court.
Court orders
#- 1.The notice of motion dated 2nd July 2008 seeking extension of time for service of the notice of appeal and record of appeal is dismissed
- 2.The applicant to pay the costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya
- Civil Suit re plaint dated 20th April 1999
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (discretion to extend time)
Relief refused
#Extension of time for service upon the respondents of the notice of appeal and record of appeal
The delay of about five years was inordinate, unexplained and prejudicial to the respondents; the respondents were not parties to the superior court proceedings and cannot be brought into the appeal under rule 76(1) as they lack locus standi.
Costs
Application dismissed with costs to the respondents.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The object of the rule and of the proviso is that the rights of a party likely to be directly affected by the result of an appeal should not be affected without the party being provided with an opportunity of being heard.
The requirements of rule 76(1) and its proviso are mandatory.
As no application was made to implead or make them parties in the superior court they cannot be brought into the appeal under the provisions of rule 76(1) of the Rules as they lack locus standi.
In the result and for the foregoing reasons, I refuse to exercise my discretion in favour of the applicant. Consequently, I dismiss the application with costs.
Issues in the judgment
#The judgment refers to the respondents' counsel as 'the appellants' when summarising their submissions, an apparent drafting slip.
The ruling of the Commissioner of Assize is given inconsistently as 17th May 1999-era events then 3rd June 2002; the judgment first describes the hearing result and later refers to 'the ruling of 3rd June 2002' without an earlier date for that ruling.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "NATIONAL BANK OF KENYA LTD v KATANGI DEVELOPERS LTD & another [2009] KECA 225 (KLR)", Case Analysis (2009). Civil Application No. NAI 206 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/225/eng@2009-07-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.