Kenya Commercial Bank Limited v Kenya Planters Co-operative Union [2012] KECA 21 (KLR)
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
#Key legal issues
#Whether the intended appeal raises arguable issues warranting leave to appeal
The court was satisfied that the draft memorandum of appeal raises pertinent issues and arguable grounds that are not frivolous, justifying grant of leave.
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.
Whether the respondent would suffer prejudice if leave were granted
No prejudice would be suffered by the respondent, who would have an opportunity to be heard at the hearing of the intended appeal.
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.
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.The notice of motion is allowed and the applicant is granted leave to appeal as prayed
- 2.The intended appeal to be filed within 14 days from the date of the ruling
- 3.The costs of the motion to be in the main appeal
- 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.