Cfc Stanbic Bank Limited v Consumers Federation of Kenya (cofek) (Being sued through its officials namely: Stephen Muhoro, Ephraim, Githinji Kamake and Henry Meshack Ochieng & 4 others
The bottom line
#Kenya's Court of Appeal struck out COFEK's notice of appeal after four years of inaction, confirming that appeals not filed within 60 days simply die.
What this practically means
#Executive summary
#Key legal issues
#Consequence of failure to institute an appeal within 60 days of lodging a notice of appeal
The notice of appeal is deemed withdrawn by operation of Rule 83; the deeming sets in the moment the appointed time lapses, and the court may formalise it suo motu or on application, with the defaulting party paying costs.
Rule 83 prescribes the legal consequence of non-institution in mandatory, peremptory terms. The rule is a practical measure intended to rid the registry of speculative notices of appeal filed in knee-jerk reaction or as holding devices. Absent lodgement of the appeal within time, exclusion of time certified for typing proceedings, or a Rule 4 extension, the notice dies in the eyes of the law, and the court's power to so order should be used vigilantly.
Whether long delay in instituting an appeal justifies striking out the notice of appeal under Rule 84
Yes. A delay of over four years in lodging the record of appeal, with no satisfactory explanation, makes a respondent's application to strike out unanswerable; there must be closure and an end to litigation.
The court found it common ground that the essential step of lodging the record of appeal had not been taken. The respondent's advocate conceded the record had not been filed and offered only an unconvincing explanation that blamed the applicant's interlocutory applications. A period of over four years would leave the applicant in a state of paralysis or limbo, and justice delayed is justice denied; the Court will not be dragged at the snail's pace of litigants who lodge notices but do nothing further.
Timeliness of the striking-out application under the proviso to Rule 84
Kiage JA (with Murgor JA agreeing) was satisfied the application was within time because the record of appeal had not yet been filed or served; Gatembu JA doubted this, viewing the proviso as mandatory, but deferred to the majority.
The proviso to Rule 84 bars striking-out applications brought more than thirty days after service of the notice of appeal or record of appeal. Since the record of appeal had not been filed and served, the majority held the application, brought before the institution of the appeal, was properly before the court. Gatembu JA would have found the application out of time, citing Joyce Bochere Nyamweya and Gichuki King'ara on the mandatory nature of the thirty-day limit, but the motion was disposed of along the majority's lines.
Legal principles established
#- Under Rule 83 of the Court of Appeal Rules, a party who lodges a notice of appeal but fails to institute the appeal within the appointed 60 days is deemed to have withdrawn the notice, and the court may so order on its own motion or on application, with the defaulting party liable for costs.
- A notice of appeal that is not instituted within 60 days (or such longer time as the proviso to Rule 82(1) or a Rule 4 extension allows) dies automatically, and the court has an inherent power, to be used vigilantly as a house-cleaning measure, to formally order it deemed withdrawn.
- Under the proviso to Rule 84, an application to strike out a notice of appeal or an appeal must be brought within thirty days of service of the notice of appeal or record of appeal; that time frame is mandatory and leaves the court no discretion.
Court orders
#- 1.The notice of appeal dated 8th December, 2014 (filed 9th December, 2014) is struck out
- 2.The applicant shall have the costs of the motion
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 315 of 2014
- Jurisdiction invoked
- Rules 83 and 84 of the Court of Appeal Rules (application to strike out a notice of appeal for failure to institute the appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cfc Stanbic Bank Limited v Consumers Federation of Kenya (cofek) (Being sued through its officials namely: Stephen Muhoro, Ephraim, Githinji Kamake and Henry Meshack Ochieng & 4 others", Case Analysis (2019). Civil Application No. 37 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/179/eng@2019-11-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.