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Court of AppealDismissedCivil Application 3 of 2019· [2022] KECA 634 (KLR)

C. B Gor & Advocates v Oriental Commercial Bank Limited

Court of Appeal
8 July 2022
SKSG KairuPNP NyamweyaJLJW Lessit
997 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to strike out a notice of appeal because the appellant had diligently followed every required procedural step.

What this practically means

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Executive summary

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The applicant, C.B Gor & Advocates, moved the Court of Appeal at Mombasa by Notice of Motion dated 16th January 2019 under Rules 42, 77, 83 and 84 (now Rules 44, 79, 85 and 86) of the Court of Appeal Rules, 2010, seeking an order that the respondent's notice of appeal dated 19th October 2018 be deemed withdrawn and/or struck out. The notice of appeal was filed following the High Court judgment of P.J.O Otieno, J delivered on 5th October 2018 in HCCC No. 886 of 2005. The applicant's counsel, Mr. A.B. Shah, deposed that the notice of appeal was served on him late, on 9th January 2019, and that no memorandum or record of appeal, nor the letter bespeaking proceedings, had been served on him as required by Rule 79. The 1st respondent's counsel, Mr. Khagram, countered that the notice of appeal and bespeaking letter were timeously filed and served on all parties by email, and that delays in obtaining proceedings in 2020 were caused by the closure of courts due to Covid-19. The court held that a notice of appeal may only be struck out where the intended appellant has taken no steps prescribed by the Rules since filing it, and found that the respondent had taken every essential step within the prescribed period and was diligent, bearing no blame for the delay. The application was dismissed in its entirety with no order as to costs.

Key legal issues

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01

Whether the notice of appeal should be struck out under Rule 86 for failure to take essential steps

Holding

The application was dismissed because the respondent took every essential step within the prescribed time and was not to blame for any delay, which was attributable to the Covid-19 closure of courts.

Reasoning

Rule 86 permits striking out a notice of appeal where an essential step has not been taken within the prescribed time, including service of the notice of appeal and the letter bespeaking proceedings. The respondent proved service of the notice of appeal and the bespeaking letter on all parties, and showed that delays in obtaining proceedings were caused by court closures during the Covid-19 pandemic, not by any fault of its own. The applicant therefore failed to demonstrate the inaction required for striking out.

p. 2

Legal principles established

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  • A notice of appeal may only be struck out where it is shown that the intended appellant has taken no steps in the matter as prescribed by the Rules since filing the notice.
  • An intended appellant must serve the notice of appeal on all parties likely to be affected by the appeal within 7 days of filing under Rule 86.

Court orders

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  1. 1.The application is dismissed in its entirety
  2. 2.No order as to costs
On appeal from
High Court of Kenya at Mombasa
HCCC No. 886 of 2005
Jurisdiction invoked
Rules 42, 77, 83 and 84 [now Rules 44, 79, 85 and 86] of the Court of Appeal Rules, 2010

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, "C. B Gor & Advocates v Oriental Commercial Bank Limited", Case Analysis (2022). Civil Application 3 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/634/eng@2022-07-08

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