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Court of AppealPartially Allowed· [2023] KECA 486 (KLR)

Absa Bank Mauritius Limited v Pabari Investments Limited (Civil Appeal (Application) E116 of 2021) [2023] KECA 486 (KLR)

Court of Appeal
12 May 2023
1,141 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 record filed 26 days late, confirming filing deadlines must be respected unless time is formally extended.

What this practically means

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Executive summary

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In a single judgment of the Court of Appeal at Mombasa, delivered on 12th May 2023 by a bench of Kairu, Nyamweya and Lesiit JJA, the court determined an application by Pabari Investments Limited under Rule 84 of the Court of Appeal Rules, 2010 and Sections 3A and 3B of the Appellate Jurisdiction Act seeking the striking out of a record of appeal filed by Absa Bank Mauritius Limited. The appeal challenged a High Court ruling delivered on 30th July 2021. The applicant showed that the record, due within 60 days of collection of the Certificate of Delay on 20th September 2021, was filed on 20th November 2021 - some 26 days late and without leave. Counsel for the appellant conceded the late filing, attributing it to an erroneous projection of the deadline, and pointed to a pending application for extension of time dated 29th December 2021. Holding that rules timelines are indispensable and that a lapsed period requires an extension of time, the court allowed prayer 1 and struck out the record of appeal, but suspended the striking-out pending determination of the extension application, with the record to stand struck out automatically if that application fails. The court declined the alternative prayer to strike out grounds 1 & 2 of the memorandum of appeal, holding that Rule 84 is a summary procedure confined to clear, uncontroverted matters, and that the viability of grounds of appeal is substantive and contentious. Costs of the application were awarded to the applicant in any event.

Key legal issues

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01

Effect of filing a record of appeal out of time without leave

Holding

Non-compliance with the filing timelines renders the record of appeal liable to be struck out, even where an application for extension of time is pending; the court may however suspend the striking out pending determination of the extension application.

Reasoning

It was conceded that the record of appeal was filed 26 days late without leave of court. The court invoked its established jurisprudence that rules timelines are indispensable and cited the Supreme Court's guidance in Salat that where prescribed time lapses, one must seek extension of time. Balancing the concession against the pending extension application, the court struck out the record but suspended the order pending that application.

p. 2
02

Scope of Rule 84 as a summary procedure

Holding

Rule 84 cannot be used to strike out specific grounds of appeal that raise substantive and contentious questions; it is confined to clear, uncontroverted situations such as out-of-time filing, absence of leave, or where no appeal lies as a matter of law.

Reasoning

Applying Nakumatt Holdings Ltd v Ideal Locations Ltd, the court restated that Rule 84 is a summary procedure requiring clear, uncontroverted facts. Whether grounds 1 & 2 of the memorandum of appeal are sustainable is a substantive and contentious matter outside the rule's purview. The court declined the alternative prayer on that basis.

p. 2
03

Missing certified copy of the order appealed from

Holding

The appellant cured this defect by filing a supplementary record of appeal containing the certified order, so no striking out was based on it.

Reasoning

The respondent complained that the record lacked a certified copy of the order appealed from. Counsel for the appellant responded that a supplementary record of appeal had since been filed. The court did not treat this as an independent ground for striking out, resting its decision instead on the admitted late filing.

p. 2

Legal principles established

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  • Timelines prescribed by the Court of Appeal Rules for filing records of appeal are indispensable, and a record of appeal filed out of time without leave is liable to be struck out.
  • Rule 84 is a summary procedure; it cannot be used to attack substantive and contentious matters such as the viability of grounds of appeal - whether an appeal lies is a jurisdictional and substantive question, not a procedural one.

Court orders

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  1. 1.Prayer 1 of the application dated 20th December 2021 allowed and the record of appeal filed by the appellant struck out
  2. 2.The striking-out order suspended pending the hearing and determination of the appellant's application for extension of time dated 29th December 2021
  3. 3.The record of appeal will stand struck out in the event that the application for extension of time dated 29th December 2021 is disallowed
  4. 4.Costs of the application awarded to the applicant in any event

Authorities

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Legislation

  • Appellate Jurisdiction ActSection 3A
  • Appellate Jurisdiction ActSection 3B
  • Court of Appeal Rules, 2010Rule 84

Cases cited (6)

  • NCBA Bank Kenya PLC vs. Jampen Enterprises Ltd
    Mbsa C.Applic No. 11 of 2020
  • Mae Properties Limited vs Joseph Kibe & another
    [2017] eKLR
  • Nicholas Kiptoo Arap Korir Salat vs. Independent Electoral and Boundaries Commission & 7 others
    [2014] eKLR
  • Nakumatt Holding Limited and another vs. Ideal Locations Limited
    [2018] eKLR
  • Luther Peter Muia & Another vs. Zuena Ngando Kababu
    [2015] eKLR
  • Christopher Orina Kenyariri vs. Salama Beach Hotel Limited & 3 others
    Malindi Civil Application No. 9 of 2018
On appeal from
High Court
Jurisdiction invoked
Section 3A & 3B of the Appellate Jurisdiction Act and Rule 84 of the Court of Appeal Rules, 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, "Absa Bank Mauritius Limited v Pabari Investments Limited (Civil Appeal (Application) E116 of 2021) [2023] KECA 486 (KLR)", Case Analysis (2023). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/486/eng@2023-05-12

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