Ecobank Limited v Daphine Balida Ketter
The bottom line
#Kenya's Court of Appeal struck out a Notice of Appeal filed two years earlier without action, confirming appeals die if not lodged within 60 days.
What this practically means
#Executive summary
#Key legal issues
#Effect of failure to lodge a record of appeal within 60 days of a Notice of Appeal
The Notice of Appeal dies a natural death after 60 days unless the appeal is lodged within that period, time is extended via the proviso to Rule 82(1), or a Rule 4 extension of time is granted; here none applied, so the notice was liable to be struck out under Rule 84.
The court examined Rules 82, 83 and 84 and applied its earlier decision in Mae Properties Ltd v Joseph Kibe. The respondent never sought or obtained an extension of time, filed no replying affidavit contesting the factual depositions, and produced no certificate of delay. The 60-day period had long expired (over 720 days), and the respondent had taken no essential step towards lodging the appeal, entitling the applicant to relief under Rules 83 or 84.
Preconditions for invoking the proviso to Rule 82(1) excluding time taken to prepare proceedings
The appellant must demonstrate a written request for certified proceedings made within 30 days of the decision, served on the respondent, and must obtain a certificate of delay; the respondent satisfied none of these.
Sub-rule (2) of Rule 82 expressly conditions reliance on the proviso on a written application for the copy of proceedings, served on the respondent. The judgment notes the record contains no such demonstrated written and served request, and no certificate of delay issued by the registrar. The respondent's explanation - delayed court processes and the Covid-19 pandemic - was advanced only through submissions, without a replying affidavit, and therefore could not be substantiated.
Entitlement of a party affected by an abandoned notice of appeal to strike it out
Where no essential step has been taken within the prescribed time, the affected party may bring a motion under Rule 83 or Rule 84 to have the notice deemed withdrawn or struck out, even while interlocutory stay orders subsist.
The applicant showed the respondent had taken no steps to lodge the appeal for years while enjoying a stay of sale of the charged properties granted by the trial court, and that the underlying loan debt remained unpaid. The court held the applicant was entitled to invoke either Rule 83 or Rule 84, and noted the respondent's sluggish prosecution of the appeal was explained by the benefit of the stay orders.
Legal principles established
#- A Notice of Appeal lapses if the appeal is not lodged within 60 days, unless time is extended by the proviso to Rule 82(1) or a Rule 4 extension of time is granted; absent those, the notice is dead and may be struck out or deemed withdrawn under Rules 83 and 84
- To rely on the proviso to Rule 82(1), an appellant must show a written request for proceedings served on the respondent and must produce a certificate of delay; unsworn counsel submissions cannot establish these facts
Court orders
#- 1.The Notice of Appeal is struck out
- 2.Costs of the application are awarded to the applicant (Ecobank Limited)
- On appeal from
- Environment and Land Court of Kenya at Eldoret
- E.L.C Case No. 139 of 2014
- Jurisdiction invoked
- Rules 83 and 84 of the Court of Appeal Rules, read with sections 3A and 3B of the Appellate Jurisdiction Act (inherent power and overriding objective); the application is directed at the Notice of Appeal against the ELC Ruling, not at the appeal itself
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kaluma v NGO Coordination Board & 5 others[2024] KESC 22 (KLR)31 May 2024
Cite this brief
#Cite this brief
Caselaw, "Ecobank Limited v Daphine Balida Ketter", Case Analysis (2021). Civil Application No. 14 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/1046/eng@2021-01-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.