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Court of AppealDismissedCivil Application E460 of 2022· [2023] KECA 913 (KLR)

KCB Bank Limited v Inyangu (Civil Application E460 of 2022) [2023] KECA 913 (KLR)

Court of Appeal of Kenya
24 July 2023
3,059 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 dismissed a bank's stay application because its notice of appeal was defective, confirming a valid notice is a jurisdictional must-have.

What this practically means

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Executive summary

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The applicant bank moved the Court of Appeal under rule 5(2)(b) of the Court of Appeal Rules seeking stay of execution of a judgment of the Employment & Labour Relations Court (Mbaru, J.) which had declared that it violated the respondent's fundamental rights, discriminated against him, and awarded him general damages of Kshs. 500,000, CBA-based wage arrears, leave allowances, pension contributions, costs and a certificate of service. The respondent, acting in person, opposed, contending that the notice of appeal was invalid for want of lodgment endorsement and misnaming of parties. On the court's own query, counsel for the applicant conceded the notice was filed under the wrong rule and misnamed the respondent, and that an application to amend it was not yet on record. The court first addressed the validity of the notice of appeal. It found rule 77 mandatory and, applying rule 10, held the notice fatally defective because it bore no endorsement of the date and time of lodgment, a deficiency the applicant never rebutted. It further held that misnaming the respondent goes to the core of a notice of appeal, since a non-existent party cannot be bound by any stay. Distinguishing Andrew Toboso Anyanga, the court accepted that filing under the wrong rule is a curable technicality under article 159(2)(d), but held that the accumulated defects were not. Following Salat, Apungu Arthur Kibira and Safaricom v Ocean View Beach Hotel, it held that a proper notice of appeal is a jurisdictional pre-requisite and article 159(2)(d) is not a panacea for all procedural ills. Lacking a valid notice, the court held it had no jurisdiction and dismissed the motion with no orders as to costs.

Key legal issues

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01

Whether the notice of appeal was validly lodged

Holding

The notice of appeal was fatally defective: it was neither dated, sealed nor signed/endorsed by the Deputy Registrar as required by rule 10, and it misnamed the respondent.

Reasoning

Rule 77 is couched in mandatory terms and requires lodgment of the notice within fourteen days. Rule 10 requires the registrar to endorse a document with the date and time of lodgment. The notice bore no such endorsement, and the applicant did not rebut the averment that it was incurably defective. Misnaming the respondent also goes to the core of the purpose of a notice of appeal, since the party as named does not exist and could not be bound by any stay issued.

p. 4
02

Whether the court had jurisdiction to determine the rule 5(2)(b) application

Holding

In the absence of a proper notice of appeal, the applicant had not expressed its intention to appeal and the court had no jurisdiction to determine the application.

Reasoning

Relying on the Supreme Court's decision in Salat as cited in Apungu Arthur Kibira, the court held that a notice of appeal is a primary document and a jurisdictional pre-requisite. Omolo JA's statement in Safaricom v Ocean View Beach Hotel confirms that rule 5(2)(b) relief requires at least a manifested intention to appeal by lodgment of a notice of appeal. Without one, article 159(2)(d) cannot cure the defect.

p. 5
03

Whether the defects could be excused as mere technicalities under article 159(2)(d)

Holding

Filing under the wrong rule may be excusable, but the combined defects here were not curable technicalities.

Reasoning

The court agreed that filing a notice under the wrong rules is a procedural technicality under article 159(2)(d), but distinguished Andrew Toboso Anyanga, which concerned leave to file a notice out of time. Here the notice was also unendorsed and misnamed the respondent, defects the applicant never rebutted. Article 159(2)(d) is not a panacea for all procedural ills.

p. 6

Legal principles established

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  • A proper notice of appeal is a jurisdictional pre-requisite for the Court of Appeal to entertain an application under rule 5(2)(b), and its absence cannot be cured by article 159(2)(d) of the Constitution.
  • A notice of appeal that bears no endorsement of the date and time of lodgment under rule 10 is fatally defective, as is one that misnames a party.

Court orders

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  1. 1.The application dated December 8, 2022 is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Civil Procedure Actsections 1A, 1B and 3A
  • Court of Appeal Rulesrule 5(2)(b)
  • Court of Appeal Rulesrule 77
  • Court of Appeal Rulesrule 10
  • Court of Appeal Rulesrules 77(2), 79(1) and 110(1) (cited by respondent)
  • Constitution of Kenyaarticle 159(2)(d)
  • Employment Actsection 26
  • Labour Relations Actsection 48(1)

Cases cited (9)

  • Andrew Toboso Anyanga v Mwale Nicholas Scott Tindi & 3 Others
    (2017) eKLR
  • Moroo Polymers Limited v Wilfred Kasyoki Willis
    (2019) eKLR
  • The Star Newspaper & Another v Muhoho
    (Civil application E036 of 2021) [2022] KECA 581 (KLR)
  • Daniel Nkirimpa Monirei v Sayialel Ole Koilele & 4 Others
    [2016] eKLR
  • Daniel Nkirimpa Meniere v Sayialel Ole Koilel & 4 Others
    [2016] eKLR
  • Halai & Another v Thornton & Turpin (1963) Ltd
    [1990] eKLR
  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission and 7 others
    [2014] eKLR
  • Apungu Arthur Kibira v Independent Electoral and Boundaries Commission and 2 others
    [2018] eKLR
  • Safaricom Limited v Ocean View Beach Hotel & 2 others
    [2010] eKLR
On appeal from
Employment & Labour Relations Court
Not stated
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, premised on a valid notice of appeal under rule 77 of the Court of Appeal Rules

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, "KCB Bank Limited v Inyangu (Civil Application E460 of 2022) [2023] KECA 913 (KLR)", Case Analysis (2023). Civil Application E460 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/913/eng@2023-07-24

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