Charterhouse Bank Limited v Central Bank of Kenya & 2 others [2018] KECA 33 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed Charterhouse Bank's decade-old appeal because the statutory manager's extended term had already expired, making the case pointless.
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 appeal was rendered moot by the lapse of the extended twelve-month period of the statutory manager's appointment
- 2.Whether the High Court erred in extending the appointment of the statutory manager under section 34(3) of the Banking Act
- 3.Whether the Court should interfere with the learned Judge's exercise of discretion
Key legal issues
#Mootness of the appeal
The appeal was dismissed as moot because the twelve-month extension of the statutory manager's appointment had long expired, so no relief the court could grant would avail the appellant.
The court observed that the appeal had been pending for over a decade and that the prayers sought could not be of use since the extended period had lapsed. Even setting aside the extension order and substituting an order dismissing the underlying motion would serve no purpose. The appeal was academic, overtaken by events, time and utility, and ought to have been withdrawn years earlier.
Interference with judicial discretion
The appellant failed to discharge the onus of showing that the Judge's exercise of discretion in extending the statutory manager's appointment was perverse or wrong in principle, so the Court would not interfere.
The discretion to extend a statutory manager's appointment is donated to the High Court in express, unfettered terms by section 34(3) of the Banking Act. The application was made by the proper party, the Central Bank, the extension sought was within the statutory maximum of twelve months, and it was supported by grounds and affidavit evidence. On review of the ruling, no error of principle or perversity was discernible.
Legal principles established
#- An appellate court will not interfere with the exercise of a judge's discretion unless it is shown that the judge misdirected himself, took into account irrelevant matters, failed to consider relevant matters, or that the decision was wrong in principle and resulted in misjustice.
- An appeal whose subject matter has been overtaken by events and time, such that no useful relief can be granted, is moot and academic and ought not to be entertained.
- Prolixity and multiplication of peripheral complaints in a memorandum of appeal are not exemplars of effective advocacy.
Court orders
#- 1.The appeal is dismissed
- 2.The appellant to pay costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Misc. Civil Appln. No. 960 of 2007
- Jurisdiction invoked
- First appeal against an order of the High Court under the Banking Act (appeal from exercise of judicial discretion)
Relief refused
#Setting aside the order extending the statutory manager's appointment and substitution of an order dismissing the notice of motion
The appeal was overtaken by events, time and utility; the extended twelve-month period had long expired, rendering the appeal academic and moot
Costs
Appeal 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.
This is a classic case of an appeal that has been long overtaken by not only events, but also time and utility. It is merely academic and was long ago rendered moot.
Prolixity, a multiplication of words and a raising of complaints that are quite peripheral to the main, real issue at hand, are not exemplars of effective advocacy, less still strategic litigation.
A Court of Appeal should not interfere with the exercise of the discretion of a judge unless it is satisfied that he misdirected himself in some matter and as a result arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge was clearly wrong in the exercise of his discretion and that as a result there has been misjustice.
The upshot of our consideration of this appeal is that it is devoid of merit and we accordingly dismiss it with costs.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Charterhouse Bank Limited v Central Bank of Kenya & 2 others [2018] KECA 33 (KLR)", Case Analysis (2018). Civil Appeal No. 173 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/33/eng@2018-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.