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Court of AppealPartially AllowedCivil Application E011 of 2020· [2022] KECA 1239 (KLR)

NCBA Bank Kenya PLC v Jampen Enterprises Limited

Court of Appeal
4 November 2022
SKS. Gatembu KairuPNP. NyamweyaJLJ. Lesiit
1,511 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal struck out an appeal because the Notice of Appeal was served late, confirming appeal service deadlines are strictly enforced.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Mombasa (SG Kairu, P Nyamweya & JW Lessit, JJ.A) on NCBA Bank Kenya PLC's application under Rule 84 of the Court of Appeal Rules, 2010 to strike out Jampen Enterprises Limited's Notice of Appeal against a High Court ruling (P.J.O. Otieno J, 29th November 2019). The Notice of Appeal was lodged on 13th December 2019, within the fourteen days allowed by Rule 75, but was served on the applicant on 16th January 2020, well outside the seven-day service period in Rule 77(1). The respondent attributed the delay to its counsel's clerk's mistaken assumption about the Christmas break and pointed to a pending extension application, but that application was filed more than a year after service, which the court held put the explanation in doubt. Applying Daniel Nkirimpa Monirei v Sayialel Ole Koilel, the court reaffirmed that Rule 77(1) is mandatory because late service gives the party served a false belief that the matter is concluded and causes prejudice. The court also confirmed its own application was competent, having been filed within thirty days of service as required by the proviso to Rule 84. The Notice of Appeal was struck out with costs to the applicant. The decision binds the High Court and parties on the mandatory character of Rule 77(1) service timelines and the need to satisfactorily explain any delay.

Key legal issues

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01

Late service of Notice of Appeal under Rule 77(1)

Holding

Service on 16th January 2020, beyond the seven days prescribed by Rule 77(1), was out of time and the delay was not satisfactorily explained, warranting striking out under Rule 84

Reasoning

The notice of appeal was lodged within 14 days but served well outside the seven-day service window. The respondent attributed the delay to a clerk's mistaken assumption about the Christmas break, but its extension application was filed over a year after service, undermining the explanation. Precedent holds Rule 77(1) is couched in mandatory terms because late service ambushes the party served.

02

Competency of the striking-out application under Rule 84 proviso

Holding

The application dated 31st January 2020 and filed 7th February 2020 was within thirty days of service of the Notice of Appeal and therefore competently filed

Reasoning

The proviso to Rule 84 requires a striking-out application to be brought before expiry of thirty days from service of the notice of appeal. Service was effected on 16th January 2020; the application was filed on 7th February 2020, within the thirty-day window, so the court had jurisdiction to entertain it.

p. 3

Legal principles established

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  • Rule 77(1) of the Court of Appeal Rules is mandatory; failure to serve a Notice of Appeal within the prescribed time prejudices the party served and justifies striking out where the delay is unexplained
  • Timelines in the Court of Appeal Rules are indispensable and command obedience

Court orders

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  1. 1.The Notice of Appeal dated 10th December 2019 lodged on 13th December 2019 is struck out
  2. 2.Costs of the application to the Applicant

Authorities

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Legislation

  • Court of Appeal Rules, 2010Rule 75
  • Court of Appeal Rules, 2010Rule 77(1)
  • Court of Appeal Rules, 2010Rule 84 (and proviso)
  • Court of Appeal Rules, 2010Rule 3(e)
  • Court of Appeal (Organization and Administration) Act, 2015Section 26(1)(c)

Cases cited (6)

  • Reliance Bank Limited (In Liquidation) vs Grandways Ventures Ltd & 2 others
    [2019]

    Any delay must be explained to the satisfaction of the Court

  • Kenya Ports Authority vs Maison 425
    [2014] eKLR

    Blame cannot be placed on an unidentified former clerk for counsel's inadvertence

  • County Government of Mombasa vs Kooba Kenya Limited
    [2019] eKLR

    No explanation offered for delay in applying for extension of time

  • Daniel Nkirimpa Monirei vs Saiyalel Ole Koilel & 4 others
    [2016] eKLR

    Failure to serve a Notice of Appeal within time gives a party false belief the matter is concluded; Rule 77(1) is mandatory

  • Salama Beach Hotel Limited & 4 Others vs Kenyariri & Associated Advocates & 4 Others
    (2016) eKLR

    Timelines in the Rules are indispensable and command obedience

  • Joyce Bochere Nyamweya vs Jemima Nyaboke Nyamweya & another
    [2016] eKLR

    Rules are expressed in clear and unambiguous terms and command obedience

On appeal from
High Court at Mombasa
Mombasa HCC No 49 of 2018 (referred to in places as HCC No 48 of 2019)
Jurisdiction invoked
Rule 84 of the Court of Appeal Rules, 2010 (application to strike out a Notice of Appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "NCBA Bank Kenya PLC v Jampen Enterprises Limited", Case Analysis (2022). Civil Application E011 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1239/eng@2022-11-04

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