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 AppealStruck OutCivil Appeal (Application) No. 134 of 2009· [2015] KECA 451 (KLR)

Kenya Commercial Bank Limited v Benjoh Amalgamated Limited & another [2015] KECA 451 (KLR)

Court of Appeal
31 July 2015
2,507 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal struck out KCB's opponent's appeal, confirming you can only appeal a court ruling that directly harms your own rights.

What this practically means

#

Executive summary

#
This Court of Appeal ruling at Nairobi (Kiage, M'inoti and J. Mohammed, JJ.A) determined two consolidated notices of motion by Kenya Commercial Bank Limited (24th July 2009) and Bidii Kenya Limited (27th July 2009) seeking to strike out Benjoh Amalgamated Limited's record of appeal, Civil Appeal No. 134 of 2009, which challenged a ruling of the High Court (Khaminwa, J) of 14th May 2009 in HCCC No. 494 of 2008. The court framed two issues: the appellant's locus standi, and the competence of the record for omission of primary documents. On the first, dispositive issue, the court held that the impugned ruling related solely to Muiri Coffee Estate Limited, which was not a party to the appeal, and that Benjoh was therefore not an aggrieved party whose rights had been directly and injuriously affected. Drawing on its own jurisprudence, including Kakuta Maimai Hamisi and the Supreme Court's decisions in Samuel Kamau Macharia and Mumo Matemu, the court held that the right of appeal must be expressly donated by the Constitution, statute or other law, that its absence is not a curable procedural technicality under Article 159(2)(d), and that locus standi goes to jurisdiction and must be resolved at the earliest opportunity. The public-interest broadening of locus standi was held inapplicable to a dispute over private rights. Lacking locus standi, the appellant could not invoke the court's jurisdiction, and the court accordingly did not reach the record-completeness issue. The two motions were allowed and the record of appeal was struck out with costs to the 1st and 2nd respondents.

Key legal issues

#
01

Whether the appellant had locus standi to appeal a ruling concerning only Muiri Coffee Estate Limited

Holding

The appellant was not an aggrieved party and therefore lacked locus standi; without a donated right of appeal the Court had no jurisdiction to hear the appeal

Reasoning

The impugned ruling of 14th May 2009 related solely to Muiri Coffee Estate Limited, which was not a party to the appeal. Applying the aggrieved-party test from foreign and domestic authority, the court held that only a party whose rights are directly and injuriously affected may appeal. The right of appeal must be expressly donated by the Constitution, statute or other law; lacking it, the appellant cannot invoke Article 159(2)(d) to cure the defect, and the court must down its tools.

p. 4
02

Whether the record of appeal was incompetent for omission of primary documents

Holding

Not determined, because the lack of locus standi dispositive issue meant the court did not reach the second issue

Reasoning

The court expressly stated it would not delve into the competence of the record if it found the appellant had no locus standi. Having found no locus standi and hence no jurisdiction, the record-completeness question under Rules 85(1)(f), 85(1)(d) and 85(3) was left undecided, and the appeal record was struck out on the jurisdictional ground alone.

p. 3

Legal principles established

#
  • A party aggrieved by a ruling must be one whose rights have been directly and injuriously affected; a party not affected by a ruling has no right of appeal, and absent a donated right of appeal the Court of Appeal lacks jurisdiction
  • The wide public-interest approach to locus standi does not apply to suits concerning private rights between private citizens
  • Where an appellant lacks the requisite right to appeal, the court must immediately abandon the matter for want of jurisdiction

Court orders

#
  1. 1.The two notices of motion dated 24th July, 2009 and 27th July, 2009 are allowed
  2. 2.The record of appeal in respect of CA No. 134 of 2009, filed on 29th June, 2009, is struck out with costs to the applicant/1st respondent and the 2nd respondent

Authorities

#

Legislation

  • Court of Appeal RulesRule 42
  • Court of Appeal RulesRule 80
  • Court of Appeal RulesRule 85
  • Court of Appeal RulesRule 85(1)(f)
  • Court of Appeal RulesRule 85(1)(d)
  • Court of Appeal RulesRule 85(2)(a)
  • Court of Appeal RulesRule 85(3)
  • Appellate Jurisdiction ActCap 9, section 3(1)
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (8)

  • Kakuta Maimai Hamisi v Peris Pesi Tobiko & 2 Others
    [2013] eKLR
  • Samuel Kamau Macharia & Anor v Kenya Commercial Bank Ltd & 2 Ors
    [2012] eKLR
  • Ahn v Openda
    (1982) KLR 87
  • Onjula Enterprises Ltd v Sumaria
    (1986) KLR 651
  • Culton v Culton
    398 S.E 2d 323
  • Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others
    [2014] eKLR
  • The Owners of Motor Vessel 'Lillian S' v Caltex Oil Kenya Limited
    (1989) KLR 1
  • Mary Wambui Munene v Peter Gichuki Kingara and Six Others
    Sup. Ct. Petition No. 7 of 2013; [2014] eKLR
On appeal from
High Court of Kenya at Nairobi
HCCC No. 494 of 2008
Jurisdiction invoked
Appellate Jurisdiction Act, Cap 9, section 3(1) - the Court of Appeal may hear appeals from the High Court only where an appeal lies under any law; the right to appeal must be expressly donated

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kenya Commercial Bank Limited v Benjoh Amalgamated Limited & another [2015] KECA 451 (KLR)", Case Analysis (2015). Civil Appeal (Application) No. 134 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/451/eng@2015-07-31

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