Diamond Trust Bank Kenya Limited v Anwar Mohamed Bayusuf Limited [2018] KECA 139 (KLR)
The bottom line
#The Court of Appeal struck out a Notice of Appeal because it was served late, confirming Kenya's strict 7-day service deadline must be met.
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 Notice of Appeal dated 25th May 2017 should be struck out on the ground that it was served out of the 7-day period stipulated in Rule 77(1) of the Court of Appeal Rules and without leave of the Court
Key legal issues
#Whether late service of a Notice of Appeal outside the 7 days allowed under Rule 77(1), without leave, renders the notice incompetent
The Notice of Appeal was served outside the 7 days allowed by the Rules and no leave was obtained; the notice is incompetent and was struck out.
The applicant deposed, through its debt recovery officer, that the Notice of Appeal was served on 7th June 2017, outside the 7-day period stipulated in Rule 77(1) of the Court of Appeal Rules, and without leave. The application was unopposed, the respondent having neither responded nor appeared despite service of the hearing notice, so the depositions stood uncontroverted and the court found no reason to decline to strike out the notice.
Legal principles established
#- A Notice of Appeal must be served within the 7-day period stipulated in Rule 77(1) of the Court of Appeal Rules, and service outside that period without leave of the Court renders the Notice of Appeal incompetent and liable to be struck out.
Court orders
#- 1.The Notice of Appeal dated 25th May 2017 in respect of Mombasa HCC No. 13 of 2013 is struck out as prayed
- 2.No orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Mombasa
- Mombasa High Court Case No. 13 of 2013
- Jurisdiction invoked
- Rule 77(1) and Rule 84 of the Court of Appeal Rules
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.
we are satisfied that the Notice of Appeal was served on the applicant late outside the 7 days allowed by the Rules. There was no leave of the Court obtained to sanction the late service.
We are persuaded that the same is incompetent, and it is hereby struck out as prayed with no orders as to costs.
Issues in the judgment
#The judgment inconsistently dates the Notice of Appeal: the body refers to a notice dated 25th May, 2017, but the operative passage refers to a 'Notice of Appeal dated 25th May, 2018'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Diamond Trust Bank Kenya Limited v Anwar Mohamed Bayusuf Limited [2018] KECA 139 (KLR)", Case Analysis (2018). Civil Application No. 39 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/139/eng@2018-11-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.