Guardian Bank Limited v Book Point Limited & another [2018] KECA 331 (KLR)
The bottom line
#Kenya's Court of Appeal struck out a strike-out application filed one day late and paused a Kshs. 178 million execution pending appeal.
What this practically means
#Executive summary
#Key legal issues
#Timeliness of an application to strike out a notice of appeal under the proviso to Rule 84
The thirty days ran from service on 10th March 2017; excluding that date under Rule 3(a) and extending to the next working day under Rule 3(b), the window lapsed on 10th April 2017. The application filed on 11th April 2017 was out of time and incompetent, even though late by only one day.
The court computed the period strictly: the date of service is excluded under Rule 3(a); because the thirtieth day fell on a Sunday, Rule 3(b) extended the period to Monday 10th April 2017. Filing on 11th April was non-compliance. The court noted that such late applications are incompetent and struck out, and although sympathetic to a one-day delay, held the rule must be enforced, adding without prejudging that the appeal raised weighty issues.
Whether the intended appeal was arguable under Rule 5(2)(b)
The issues raised by Guardian, including whether the amended decree on which execution is sought is indeed a decree of the court and whether sums never pleaded or proved were incorporated into the decree, were not frivolous and therefore arguable.
Applying the settled twin principles in Ishmael Kagunyi Thande, the court found the intended appeal raised genuine questions, notably whether the amended decree underpinning the notice to show cause was properly a decree of the court, and whether the Judge erred in sanctioning embellishment of the decree and in undertaking his own calculations of the outstanding amount.
Whether the appeal would be rendered nugatory absent a stay
The court granted a stay of further proceedings in the High Court pending determination of Civil Appeal No. 90 of 2017, considering the amount involved, the circumstances in which the decree was generated, and that the substantive appeal was already filed.
Invoking the object of Rule 5(2)(b) as the preservation of the subject matter of the appeal to ensure its just and effective determination, and following Reliance Bank v Norlake on considering the amount involved, the court was satisfied that execution over disputed, allegedly embellished sums would render the appeal nugatory.
Legal principles established
#- An application to strike out a notice of appeal under Rule 84 of the Court of Appeal Rules must be brought within thirty days from the date of service of the notice of appeal; an application filed outside that period is incompetent and must be struck out.
- An applicant under Rule 5(2)(b) must demonstrate both that the appeal or intended appeal is arguable and that, unless the relief is granted, the success of the appeal will be rendered nugatory.
- An arguable appeal is one that is deserving of the Court's consideration; it need not necessarily succeed.
Court orders
#- 1.Bookpoint's application (Civil Application No. NAI. 72 of 2017) to strike out the notice of appeal struck out as incompetent with no orders as to costs
- 2.Orders in terms of prayer 3 of the notice of motion dated 30th March 2017 granted: a stay of further proceedings in Nairobi HCCC No. 1807 of 2002, Book Point Limited vs Guilders International Bank Ltd & Guardian Bank Limited, pending the hearing and determination of Civil Appeal No. 90 of 2017
- 3.Costs of Guardian's application to abide the outcome of the appeal
- On appeal from
- High Court of Kenya at Nairobi
- Nairobi H.C.C.C. No. 1807 of 2002
- Jurisdiction invoked
- Rule 5(2)(b) and Rule 84 of the Court of Appeal Rules (appellate jurisdiction under Article 164 of the Constitution)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Guardian Bank Limited v Book Point Limited & another [2018] KECA 331 (KLR)", Case Analysis (2018). Civil Application No. NAI. 69 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/331/eng@2018-09-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.