Orchid Pharmacy Limited v Southern Credit Banking Corporation Limited & 3 others [2018] KECA 163 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an entire appeal because the notice of appeal was served over four years late, without seeking an extension of time.
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 application to strike out the Notice of Appeal and Record of Appeal was filed within the 30-day period prescribed by Rule 84
- 2.Whether service of the Notice of Appeal and Record of Appeal outside the prescribed time, without an application for enlargement of time and without satisfactory explanation, justified striking out the appeal
- 3.Whether mistake of counsel and the overriding objective warranted excusing the procedural default
Key legal issues
#Timeliness of the application to strike out under Rule 84
The motion to strike out was filed within 30 days of service of the Notice and Record of Appeal, satisfying the proviso to Rule 84.
The Notice of Appeal was served on 14th March 2018 and the Record of Appeal on 9th March 2018. The motion was filed on 9th April 2018, within 30 days of the last service, so the threshold requirement of the proviso was met and the application was properly before the court.
Consequences of late service of the Notice and Record of Appeal
Service outside the seven-day rule without an enlargement-of-time application or satisfactory explanation means there is no valid Notice of Appeal and the appeal must be struck out.
The court held Rule 77(1) mandatory. The appellant offered only counsel's mistake, filed no affidavit from counsel explaining the delay, and never applied to enlarge time for service. Following Ratman v CumaraSamy and the Kantaria line, discretion cannot be exercised without material on which to do so; the default therefore defeated the appeal.
Whether mistake of counsel and the overriding objective excuse the default
Mistake of counsel is not automatically excused; courts will excuse it only where it affords just, expeditious disposal and counsel explains the delay, which was not done here.
Citing Tana & Athi Rivers Development Authority, the court acknowledged clients should not suffer for counsel's mistakes but stressed counsel's corresponding duty to the court and the other side. No affidavit from counsel was filed. The overriding objective requires a proper foundation, absent here, so substantive justice could not override the mandatory rules.
Legal principles established
#- Rule 77(1) of the Court of Appeal Rules is mandatory; service of the Notice of Appeal within seven days is not optional, and absent an enlargement of time there is no valid Notice of Appeal to confer jurisdiction on the Court.
- Without a valid Notice of Appeal served within the prescribed time, the Court of Appeal lacks jurisdiction to entertain the appeal.
- The overriding objective is not a panacea; a party invoking it must lay a proper and explicable foundation before the Court can exercise the discretion in its favour.
- Where an appeal is struck out, no appeal remains pending and the court will not delve into the merits of the grounds in the memorandum of appeal.
Court orders
#- 1.The Notice of Motion dated 5th April 2018 is allowed
- 2.The Notice of Appeal dated 24th September 2013 is struck out
- 3.The Record of Appeal filed on 22nd November 2013 is struck out
- 4.The appeal is struck out with costs to the 3rd respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court at Nairobi
- High Court Civil Case No. 389 of 2007
- Jurisdiction invoked
- There was no valid Notice of Appeal on record; the court found it lacked the requisite jurisdiction to entertain the appeal
Relief refused
#Hearing of the appeal on its merits despite late service of the Notice and Record of Appeal
No satisfactory explanation for the delay, no affidavit from counsel, and no application to enlarge time for service
Costs
This appeal be and is hereby struck out with costs to the 3rd respondent.
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.
Rule 77(1) of the Rules of this Court is couched in mandatory terms and compliance with the same is not optional.
There being no application to enlarge time within which to serve the Notice and Record of Appeal, it is clear that there is no valid Notice of Appeal on record to clothe us with the requisite jurisdiction to entertain the appeal herein.
The upshot is that we allow the Notice of Motion dated 5th April 2018. We hereby strike out the Notice of Appeal dated 24th September 2013 and also strike out the Record of Appeal filed on 22nd November 2013.
This appeal be and is hereby struck out with costs to the 3rd respondent.
Issues in the judgment
#The judgment states leave to appeal out of time was granted on 23rd September 2013 but the Notice of Appeal is dated 24th September 2013 and elsewhere the judgment says it was filed on 25th September 2013, an internal inconsistency in dates.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Orchid Pharmacy Limited v Southern Credit Banking Corporation Limited & 3 others [2018] KECA 163 (KLR)", Case Analysis (2018). Civil Appeal No. 322 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/163/eng@2018-11-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.