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Court of AppealPartially AllowedCivil Application E175 of 2021 & E008 of 2022 (Consolidated)· [2022] KECA 701 (KLR)

Kamau & another v National Bank of Kenya Ltd & another

Court of Appeal
22 July 2022
MNMumbi Ngugi
1,855 words in judgment
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The bottom line

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Kenya's Court of Appeal excused a bank's 66-day late appeal notice because the court file was unavailable, so the appeal proceeds.

What this practically means

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Executive summary

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This is a single ruling by Mumbi Ngugi JA of the Court of Appeal at Kisumu on two consolidated applications arising from a judgment of the High Court at Eldoret (Githinji J) delivered on 27th September 2021, in which Allan George Njogu Kamau succeeded against National Bank of Kenya in a banking dispute concerning a declaration that he owed no money, a refund of Kshs 609,659, and release of his title documents. NBK filed a notice of appeal but, because the trial judge had been transferred and the court file was unavailable, it served the notice 66 days late. Kamau in turn sought extension of time to file an application to strike out the notice of appeal as defective, also blaming the unavailability of the file. The court applied the Leo Sila Mutiso factors for extension of time under Rule 4: length of delay, reason for delay, chances of success, and prejudice. It found the delay conceded but wholly attributable to factors outside NBK's control, and allowed NBK's application, deeming the notice of appeal duly filed and served. Kamau's application necessarily failed. Observing that his application was novel and not clearly contemplated by Rule 4, the court suggested an application to deem the notice withdrawn might have been more appropriate. As the delay was attributable to neither party, there was no order as to costs. The decision binds subordinate courts on the exercise of Rule 4 discretion where delay stems from non-availability of the court file.

Key legal issues

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01

Extension of time for service of notice of appeal

Holding

NBK's 66-day delay in serving the notice of appeal was excused because it was caused by the non-availability of the High Court file, outside its control; the notice was deemed duly filed and served.

Reasoning

Applying the Leo Sila Mutiso factors, the court found the delay conceded but explained by the trial judge's transfer and the file not being returned to Eldoret. No prejudice to the respondent was shown; indeed the respondent himself sought time on the same basis. The justice of the matter favoured allowing NBK's application.

p. 3
02

Whether Rule 4 contemplates extension of time to file an application to strike out a notice of appeal

Holding

The court observed that Mr. Kamau's application was novel and not clearly contemplated by Rule 4; deeming the notice of appeal withdrawn might have been more appropriate, but this did not defeat NBK's application.

Reasoning

The court noted the application was novel and not contemplated by Rule 4, suggesting an application to deem the notice withdrawn would have been more appropriate. However, since NBK had properly invoked Rule 4 for its own notice, the court proceeded on that basis and allowed NBK's application, rendering Kamau's application moot.

p. 3

Legal principles established

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  • In exercising discretion under Rule 4, the court considers the length of delay, reason for delay, chances of appeal succeeding, and prejudice to the respondent
  • Delay attributable to factors outside a party's control, such as non-availability of the court file, justifies extension of time under Rule 4

Court orders

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  1. 1.The application by NBK dated 18th January 2022 for extension of time is allowed
  2. 2.The notice of appeal dated 4th October 2021, lodged on 8th October 2021 and served on 7th January 2022, is deemed as duly filed and served
  3. 3.The application by Mr. Kamau dated 17th December 2021 fails
  4. 4.No order as to costs

Authorities

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Legislation

  • Civil Procedure Code, 2010section 1A
  • Civil Procedure Code, 2010section 1B
  • Civil Procedure Code, 2010section 3A
  • Court of Appeal Rules 2010Rule 4
  • Court of Appeal Rules 2010Rule 42(1)
  • Court of Appeal Rules 2010Rule 43(1)
  • Court of Appeal Rules 2010Rule 75(3)
  • Court of Appeal Rules 2010Rule 75(6)
  • Court of Appeal Rules 2010Rule 77
  • Court of Appeal Rules 2010Rule 84

Cases cited (1)

  • Leo Sila Mutiso v Rose Hellen Wangari Mwangi
    Civil Application No. NAI 255 of 1997

    Factors for exercising discretion under Rule 4: length of delay, reason, chances of success, prejudice to respondent

On appeal from
High Court of Kenya at Eldoret
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules 2010 (extension of time); sections 1A, 1B and 3A of the Civil Procedure Code, 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, "Kamau & another v National Bank of Kenya Ltd & another", Case Analysis (2022). Civil Application E175 of 2021 & E008 of 2022 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/701/eng@2022-07-22

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