Sheikh Osman Mohamed v Kenya Commercial Bank Limited [2011] KECA 189 (KLR)
The bottom line
#Kenya's Court of Appeal refused to strike out KCB's appeal, holding that minor procedural defects cannot defeat a validly lodged notice of appeal.
What this practically means
#Executive summary
#Key legal issues
#Defectiveness of notice of appeal for want of Deputy Registrar endorsement
The notice of appeal is valid; there is no legal requirement that it be endorsed by the Deputy Registrar before service, provided it was lodged in court.
The applicant argued the notice was defective because the endorsed copy was not served within the stipulated period. The court examined the notice on record and found it was received by the court on 12th May 2009. It held that lodging the notice in court is what matters, rejecting the technical objection in light of the overriding objective under sections 3A and 3B of the Appellate Jurisdiction Act and Article 159(2)(d) of the Constitution.
Whether the respondent took essential steps timeously after filing the notice of appeal
Prima facie the respondent took essential steps: it bespeaking proceedings by letter dated 12th May 2009 copied to the applicant's advocates, which the Deputy Registrar acknowledged; benefit of the doubt was given to the respondent.
The court found the respondent's letter bespeaking proceedings was copied to the applicant's advocates, and the Deputy Registrar acknowledged it. Although service of the typed proceedings was delayed, the applicant did not file a further affidavit to deny receipt of the copy of the bespeaking letter. Since an appeal had already been filed, the benefit of the doubt went to the respondent, so no essential step was shown to have been omitted.
Application of the overriding objective to procedural objections
The objection raised was technical; courts must strive to give effect to the overriding objective without undue regard to technicalities of procedure.
The court invoked sections 3A and 3B of the Appellate Jurisdiction Act and Article 159(2)(d) of the 2010 Constitution, holding that it is the court's duty to have loyalty to the spirit of the Constitution and the policy of the law. The endorsement complaint was characterised as a technical issue incapable of justifying the drastic remedy of striking out a notice of appeal where an appeal had already been filed.
Legal principles established
#- A notice of appeal is not required to be endorsed by the Deputy Registrar before service on persons affected; what matters is that it was lodged in court.
- Courts must apply the overriding objective and administer justice without undue regard to procedural technicalities.
Court orders
#- 1.The application dated 4th June 2010 is dismissed with costs
- On appeal from
- High Court
- H.C.C.S. No. 191 of 2004
- Jurisdiction invoked
- Rule 80 of the Court of Appeal Rules; Sections 3A and 3B of the Appellate Jurisdiction Act, Cap 9
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sheikh Osman Mohamed v Kenya Commercial Bank Limited [2011] KECA 189 (KLR)", Case Analysis (2011). Civil Application No. NAI.133 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/189/eng@2011-07-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.