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Court of AppealDismissedNairobi Civil Application (as stated in the judgment; application dated 21st October, 2020)· [2021] KECA 230 (KLR)

Banking, Insurance and Finance Union (Kenya) v Barclays Bank of Kenya Limited (Civil Appeal E332 of 2020) [2021] KECA 230 (KLR)

Court of Appeal of Kenya
5 November 2021
Mohamed Abdulahi WarsameM. WarsameHOH. OmondiJLJ. Lesiit
996 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that applications to strike out an appeal must be filed within 30 days, or they fail—no matter how strong the complaint.

What this practically means

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Executive summary

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Barclays Bank of Kenya Limited applied under Rules 80 and 87 of the Court of Appeal Rules for the striking out of the Notice of Appeal filed by Banking, Insurance and Finance Union (Kenya) on 30th July, 2019, contending that over one and a half years had elapsed without the record of appeal being filed or served and that the successful litigant had been denied the fruits of its judgment since 2013. The union replied that it had obtained a stay of execution conditional on depositing the decretal sum of Kshs. 8,203,999, which it paid into court within the stipulated fifteen days, and that despite follow-up letters its advocates had never received the typed proceedings and judgment, without which the record of appeal could not be compiled under Rule 87(1). The Court, its own motion noting that Rule 84 governed striking-out applications even though not cited by the Respondent, held that the proviso to Rule 84 required such an application to be brought within thirty days of service of the Notice of Appeal or record of appeal. Service within the seven days required by Rule 77(1) was presumed since no objection was raised; the application filed in October 2020, over a year later, was therefore defective. The court applied its decision in Pravin Vora T/A Vora Construction v Synresins Ltd on the three grounds and the thirty-day limit under Rule 84. It further found the delay excusable, since the decretal sum had been deposited and the proceedings had not been supplied. The application dated 21st October, 2020 was dismissed with no orders as to costs.

Key legal issues

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01

Time limit for applications to strike out a Notice of Appeal under Rule 84

Holding

The application, brought over one year after service of the Notice of Appeal, breached the proviso to Rule 84 and was defective

Reasoning

Rule 77(1) requires service of a Notice of Appeal within seven days of lodgement; no objection was raised on service, so service within time was presumed. The proviso to Rule 84 bars striking-out applications brought after thirty days from service of the Notice of Appeal or record of appeal. Filing in October 2020, over a year after service, rendered the application defective, and the court dismissed it on that basis.

p. 2
02

Whether the Appellant's failure to file the record of appeal justified striking out

Holding

No - the delay was attributable to the non-supply of typed proceedings, not to the Appellant, who had deposited the decretal sum as directed

Reasoning

The Appellant had obtained a stay on condition of depositing Kshs. 8,203,999 within fifteen days, which it complied with, and had written to the Deputy Registrar and followed up for the typed proceedings and judgment. Under Rule 82(1), time for filing the record runs from delivery of typed proceedings, which had not been supplied. The successful litigant's claim to the fruits of judgment did not outweigh these circumstances.

p. 2
03

The scope of Rule 84 grounds for striking out

Holding

Adopting Pravin Vora, an applicant may strike out on three grounds: that no appeal lies, that an essential step has not been taken, or that an essential step has not been taken within the prescribed time - subject to the thirty-day proviso

Reasoning

The court endorsed the earlier interpretation that Rule 84 permits striking out only on the enumerated grounds and that the procedural safeguard of the thirty-day time limit is mandatory. An applicant who delays beyond that period cannot invoke Rule 84, however strong the underlying complaint about the appeal's prosecution.

p. 2

Legal principles established

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  • An application to strike out a Notice of Appeal or an appeal under Rule 84 must be brought within thirty days from the date of service of the Notice of Appeal or record of appeal; an application brought outside that window is defective
  • Delay in filing a record of appeal is excusable where the appellant has not been supplied with typed proceedings despite following up, and has complied with conditions such as depositing the decretal sum

Court orders

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  1. 1.The application dated 21st October, 2020 was dismissed with no orders as to costs

Authorities

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Legislation

  • Court of Appeal Rules, 2010Rule 84 (including proviso)
  • Court of Appeal Rules, 2010Rule 82(1)
  • Court of Appeal Rules, 2010Rule 77(1)
  • Court of Appeal Rules, 2010Rule 80
  • Court of Appeal Rules, 2010Rule 87(1)

Cases cited (1)

  • Pravin Vora T/A Vora Construction Vs Synresins Ltd
    Nairobi Civil Application No. 254 Of 2016 (2017) eKLR
Jurisdiction invoked
Rules 80, 84 and 87 of the Court of Appeal Rules, 2010 (application to strike out a Notice of Appeal)

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, "Banking, Insurance and Finance Union (Kenya) v Barclays Bank of Kenya Limited (Civil Appeal E332 of 2020) [2021] KECA 230 (KLR)", Case Analysis (2021). Nairobi Civil Application (as stated in the judgment; application dated 21st October, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/230/eng@2021-11-05

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.