Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealAllowedCivil Application No. NAI. 81 of 2010 (UR 62/2010)· [2012] KECA 21 (KLR)

Kenya Commercial Bank Limited v Kenya Planters Co-operative Union [2012] KECA 21 (KLR)

Court of Appeal
20 April 2012
563 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal let KCB pursue its appeal, ruling that a proposed appeal raising arguable issues deserves a day in court even after an earlier application failed.

What this practically means

#

Executive summary

#
This is a ruling of the Court of Appeal at Nairobi (Visram, Karanja and Maraga, JJ.A.) delivered on 20th April 2012 on a notice of motion dated 13th April 2010 seeking leave to appeal from the ruling and order of the High Court (Apondi, J.) dated 18th January 2010 in H.C.C.C. No. 779 of 2009. The application was premised on Sections 3A and 3B of the Appellate Jurisdiction Act and Rules 4, 39(2) and 47 of the Court of Appeal Rules, and followed the dismissal of a similar earlier application for leave. The applicant deponed, through a 26-paragraph affidavit of Jacob Unda, that it had a good appeal with overwhelming chances of success, and counsel submitted that there were two parallel suits before the High Court between the same parties - H.C.C.C. No. 779 of 2009 and Petition No. 700 of 2009 - amounting to an abuse of the process of the court, one of the issues intended for the appeal. No replying affidavit was filed and the respondent, though duly served, did not attend the hearing. The court, having perused the annexed draft Memorandum of Appeal, was satisfied that it raised pertinent issues which needed to be canvassed in the intended appeal, that the appeal was arguable and not frivolous, and that the respondent would suffer no prejudice since it would be heard at the hearing of the appeal. The court accordingly allowed the motion, granted leave to appeal as prayed, directed that the intended appeal be filed within 14 days, and ordered that the costs of the motion be in the main appeal.

Key legal issues

#
01

Whether the intended appeal raises arguable issues warranting leave to appeal

Holding

The court was satisfied that the draft memorandum of appeal raises pertinent issues and arguable grounds that are not frivolous, justifying grant of leave.

Reasoning

The court considered the notice of motion, the supporting affidavit deponing that the applicant had a good appeal with overwhelming chances of success, counsel's submissions and the annexed draft Memorandum of Appeal. It found the draft memorandum raised pertinent issues requiring canvass in the intended appeal, including the alleged abuse of court process arising from two parallel suits between the same parties. As the intended appeal was arguable and not frivolous, and the respondent would have a chance to be heard at the hearing, leave was granted.

p. 2
02

Whether the respondent would suffer prejudice if leave were granted

Holding

No prejudice would be suffered by the respondent, who would have an opportunity to be heard at the hearing of the intended appeal.

Reasoning

The court noted that although the respondent was duly served, no replying affidavit was filed and counsel for the respondent did not attend the hearing. It reasoned that allowing the application would not harm the respondent because the respondent would retain a full opportunity to be heard at the hearing of the intended appeal itself, so the leave stage caused no cognizable prejudice.

p. 2

Legal principles established

#
  • On an application for leave to appeal, the Court of Appeal will grant leave where the draft memorandum of appeal raises arguable issues that are not frivolous and where no prejudice will be suffered by the respondent.

Court orders

#
  1. 1.The notice of motion is allowed and the applicant is granted leave to appeal as prayed
  2. 2.The intended appeal to be filed within 14 days from the date of the ruling
  3. 3.The costs of the motion to be in the main appeal

Authorities

#

Legislation

  • Appellate Jurisdiction ActSection 3A
  • Appellate Jurisdiction ActSection 3B
  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 39(2)
  • Court of Appeal RulesRule 47
On appeal from
High Court of Kenya
H.C.C.C. No. 779 of 2009
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act; Rules 4, 39(2) and 47 of the Court of Appeal Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kenya Commercial Bank Limited v Kenya Planters Co-operative Union [2012] KECA 21 (KLR)", Case Analysis (2012). Civil Application No. NAI. 81 of 2010 (UR 62/2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2012/21/eng@2012-04-20

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