Absa Bank Mauritius Limited v Pabari Investments Limited (Civil Appeal (Application) E116 of 2021) [2023] KECA 486 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Effect of filing a record of appeal out of time without leave
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.
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.
Scope of Rule 84 as a summary procedure
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.
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.
Missing certified copy of the order appealed from
The appellant cured this defect by filing a supplementary record of appeal containing the certified order, so no striking out was based on it.
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.
Legal principles established
#- 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
#- 1.Prayer 1 of the application dated 20th December 2021 allowed and the record of appeal filed by the appellant struck out
- 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.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.Costs of the application awarded to the applicant in any event
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.