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Court of AppealAllowedCivil Application No. 39 of 2017

Diamond Trust Bank Kenya Limited v Anwar Mohamed Bayusuf Limited [2018] KECA 139 (KLR)

Court of Appeal
15 November 2018
478 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~2 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Court of Appeal at Mombasa (Visram, Karanja and Koome, JJ.A) determined an application by Diamond Trust Bank Kenya Limited, brought under Rules 77(1) and 84 of the Court of Appeal Rules, seeking to strike out a Notice of Appeal dated 25th May 2017 lodged against an order of the High Court at Mombasa (Thande, J) issued on 16th May 2017 in Mombasa High Court Case No. 13 of 2013. The applicant contended that the notice was served on it on 7th June 2017, outside the 7-day period stipulated in Rule 77(1), and without leave of the Court, rendering the notice incompetent. The application was unopposed: the respondent filed no response, and although its advocates were duly informed of the hearing date, there was no appearance when the matter came up on 26th September 2018, so the application proceeded ex parte with the Court's leave. Finding the applicant's uncontroverted depositions persuasive, the Court held that the notice had been served outside the 7 days allowed by the Rules and that no leave had been obtained to sanction the late service, and it struck out the Notice of Appeal as incompetent. The application was allowed with no orders as to costs. The judgment is delivered as a single ruling of the full bench, dated and delivered at Mombasa on 15th November 2018.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 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

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01

Whether late service of a Notice of Appeal outside the 7 days allowed under Rule 77(1), without leave, renders the notice incompetent

Holding

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.

Reasoning

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.

p. 1

Legal principles established

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  • 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

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  1. 1.The Notice of Appeal dated 25th May 2017 in respect of Mombasa HCC No. 13 of 2013 is struck out as prayed
  2. 2.No orders as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority

Wrote the judgment

Martha Karambu Koome
M.K. KoomeJA
Currently serving
majority

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

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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.
p. 1late service of Notice of Appeal
We are persuaded that the same is incompetent, and it is hereby struck out as prayed with no orders as to costs.
p. 1final orders - striking out

Issues in the judgment

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minor

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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.