Cooperative Bank Housing Society Limited v Wambega & 733 others
The bottom line
#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
#Executive summary
#Key legal issues
#Whether omission of the certified decree from the record of appeal warranted striking out
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.
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.
Whether the appeal could be challenged for duplicity of notices of appeal and want of instructions under Rule 84
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.
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.
Whether the striking-out application was filed within time
No - the application was filed outside the thirty-day period prescribed by Rule 84, rendering it incompetent.
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.
Legal principles established
#- 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
#- 1.Dismissal of the Notice of Motion dated 2nd February 2021
- 2.Costs of the application awarded to the appellants/respondents
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.