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Court of AppealDismissedCivil Appeal (Application) E28 of 2020· [2022] KECA 951 (KLR)

Cooperative Bank Housing Society Limited v Wambega & 733 others

Court of Appeal
29 July 2022
1,926 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to strike out an appeal because the application to strike it out was filed late, past the mandatory 30-day deadline.

What this practically means

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Executive summary

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Cooperative Bank Housing Society Limited, the 3rd respondent in a pending appeal, moved under Sections 3A and 3B of the Appellate Jurisdiction Act and Rule 84 (now Rule 86) of the Court of Appeal Rules to strike out Civil Appeal No. E28 of 2020, an appeal by Henry Wambega and 733 others against the dismissal by Munyao, J of their Environment and Land Court petition on 22nd October 2020. The applicant advanced three grounds: the notice of appeal was never served; the record of appeal omitted a certified copy of the decree contrary to Rule 87(1) (now Rule 89); and the appeal was filed without proper instructions, two separate notices of appeal having been lodged by different firms for overlapping groups of appellants. The appellants responded that the omission of the decree was inadvertent, curable under Rule 88, and had been rectified by a supplementary record of appeal; the 9th respondent (Safepak Limited) countered that the supplementary record was a belated attempt to sanitize a fatally defective record. The Court of Appeal (Kairu, Nyamweya and Lesit, JJA) dismissed the application. It held that the decree had since been included in a supplementary record of appeal which the applicant had not challenged, and that the application before it did not seek to strike out the supplementary record, so the court lacked jurisdiction to consider it. It further held that Rule 84 does not support a challenge based on duplicity of notices of appeal or want of representation. Decisively, the application itself was filed outside the thirty-day period prescribed by Rule 84, which the court, following its own precedents, declared mandatory, rendering the application an afterthought and incompetent. The application was dismissed with costs to the appellants/respondents.

Key legal issues

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01

Whether omission of the certified decree from the record of appeal warranted striking out

Holding

No - the decree was subsequently included via a supplementary record of appeal, and the applicant raised no issue with its inclusion; the application was confined to the record of appeal, not the supplementary record.

Reasoning

The court noted the decree had been included in a supplementary record of appeal filed pursuant to Rule 88 as read with Rule 92(3). Rule 88 permits a supplementary record where documents are omitted, with leave of the Deputy Registrar after fifteen days. The applicant did not challenge the inclusion of the decree, and the application before the court did not seek to strike out the supplementary record, so no relief could issue on that ground.

p. 3
02

Whether the appeal could be challenged for duplicity of notices of appeal and want of instructions under Rule 84

Holding

No - Rule 84 only permits striking out where no appeal lies or an essential step was not taken or not taken within time; it does not cover duplicity of notices or representation.

Reasoning

The court construed Rule 84 (now Rule 86), which supports a challenge to a record of appeal or an appeal on the ground that no appeal lies or that some essential step in the proceedings has not been taken or has not been taken within the prescribed time. A challenge based on two notices of appeal and which firm had instructions falls outside the scope of that rule and could not be entertained under it.

p. 4
03

Whether the striking-out application was filed within time

Holding

No - the application was filed outside the thirty-day period prescribed by Rule 84, rendering it incompetent.

Reasoning

The record of appeal was filed on 17th December 2020 and the application was lodged on 2nd February 2021, beyond the thirty-day limit. Following Edward Njuguna Kangethe v Joel Kiema Mutinda and Gichuki King'ara & Company Advocates v Al Jalal Enterprises Limited, the court held the rule is mandatory and a late application is an afterthought and a non-starter.

p. 4

Legal principles established

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  • An application to strike out a record of appeal under Rule 84 must be filed within the stipulated thirty days; the rule is mandatory and a late application is an afterthought and a non-starter.
  • Parties are bound by their pleadings; a court cannot grant relief not sought in the application before it.
  • Rule 84 does not support a challenge to an appeal on the basis of duplicity of notices of appeal or want of representation.

Court orders

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  1. 1.Dismissal of the Notice of Motion dated 2nd February 2021
  2. 2.Costs of the application awarded to the appellants/respondents

Authorities

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Legislation

  • Appellate Jurisdiction ActSection 3A
  • Appellate Jurisdiction ActSection 3B
  • Court of Appeal RulesRule 84 (now Rule 86)
  • Court of Appeal RulesRule 87(1) (now Rule 89)
  • Court of Appeal RulesRule 88
  • Court of Appeal RulesRule 92(3)

Cases cited (3)

  • Edward Njuguna Kangethe v Joel Kiema Mutinda & another
    [2015] eKLR

    That a striking-out application may be brought where no appeal lies, an essential step was not taken, or was not taken within the prescribed time.

  • Lither Peter Muia & another v Zuena Ngando Kababu
    (2015) eKLR

    Cited within Edward Njuguna Kangethe on the grounds for striking out an appeal.

  • Gichuki King'ara & Company Advocates v Al Jalal Enterprises Limited & 2 Others
    Civil Application No. NAI 211 OF 2012 (UR 156/2012) (Unreported)

    That Rule 84 is mandatory; an application filed outside the thirty-day period is a non-starter and an afterthought.

On appeal from
Environment and Land Court at Mombasa
ELC Petition No. 2 of 2018
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act and Rule 84 (now Rule 86) of the Court of Appeal Rules

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, "Cooperative Bank Housing Society Limited v Wambega & 733 others", Case Analysis (2022). Civil Appeal (Application) E28 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/951/eng@2022-07-29

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