Kamanja v Equity Bank Limited & another
The bottom line
#Kenya's Court of Appeal allowed a late appeal notice but refused to stop an auction because no appeal had actually been filed yet.
What this practically means
#Executive summary
#Key legal issues
#Whether leave to file a notice of appeal out of time should be granted
Leave was granted; the applicant's explanation that he was not notified of the delivery date of the ruling was unopposed, and a delay of about two months was excused in the exercise of the court's discretion under Rule 4.
The court applied the principles in Leo Sila Mutiso v Rose Hellen Wanjohi Mwangi governing extension of time under Rule 4. The respondents, though served, filed nothing opposing the applicant's sworn claim that no notice of the ruling date was sent. The uncontradicted explanation, together with consideration of all relevant factors, justified excusing the delay and granting leave limited to prayer 1, with strict timelines imposed.
Whether interim injunctive relief could be granted under Rule 5(2)(b) where no notice of appeal has been filed
No; prayers for injunction under Rule 5(2)(b) were premature and incapable of being granted because no notice of appeal had been filed.
The court held that Rule 5(2)(b) relief presupposes a filed notice of appeal or record of appeal. Since the applicant was himself seeking leave to file the notice of appeal out of time, the injunction prayers were premature. The court also noted that a Rule 5(2)(b) application is not a single-judge application and cannot be bundled into an omnibus application with a Rule 4 prayer. Both injunction prayers were dismissed.
Legal principles established
#- An application under Rule 5(2)(b) of the Court of Appeal Rules can only be granted if a notice of appeal or record of appeal has already been filed in accordance with the rules.
- A Rule 5(2)(b) application is not a single-judge application and an applicant cannot combine it with a Rule 4 extension-of-time prayer in one omnibus application.
Court orders
#- 1.Prayers 2 and 3 of the notice of motion dismissed
- 2.Leave granted to file the notice of appeal out of time in terms of prayer 1 only
- 3.Applicant to file and serve the notice of appeal within 14 days
- 4.Applicant to file the record of appeal within 30 days of filing the notice of appeal
- On appeal from
- High Court of Kenya at Kajiado
- High Court Civil Suit No. E016 of 2021
- Jurisdiction invoked
- Section 34 of the Civil Procedure Act and Rules 4 and 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kamanja v Equity Bank Limited & another", Case Analysis (2022). Civil Appeal E258 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1014/eng@2022-09-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.