Mutyaene v Kenya Commercial Bank Limited & another (Civil Appeal (Application) E017 of 2020) [2023] KECA 1160 (KLR)
The bottom line
#Kenya's Court of Appeal refused to strike out an appeal delayed by registry errors, confirming that court administrative failures won't defeat a diligent appellant.
What this practically means
#Executive summary
#Key legal issues
#Whether the record of appeal was served out of time under Rule 90 of the Court of Appeal Rules
The delay in service was occasioned by registry challenges (erroneous invoice, duplicate case numbers) and the record could only be deemed filed upon payment of fees; service on 25th February, 2021 was within the 7-day period under Rule 90.
The court accepted that the respondent lodged the appeal on 15th October, 2020 within 60 days supported by a certificate of delay, but payment could not be made until the correct invoice issued. Sixteen emails to the registry evidenced diligence. Since the appeal was deemed lodged on 25th February, 2021 upon payment of fees and security, service of the record on the same day fell within Rule 90's seven days.
Whether the failure to annex the Judge's notes and certificate of delay to the record of appeal warranted striking out
The omission was cured by the supplementary record of appeal, and under Rule 88 no leave of court was required since the appeal was only officially lodged on 25th February, 2021.
Rule 88 permits an appellant, where a document referred to in Rule 87(1) is omitted, to include it in a supplementary record of appeal without leave within the prescribed period, and thereafter with leave of the deputy registrar. The court treated the official lodgement date as 25th February, 2021, so the supplementary record incorporating the Judge's notes and certificate of delay was properly filed without leave.
Whether the striking-out discretion should be exercised given the overriding objective
Sections 3A and 3B of the Appellate Jurisdiction Act and Article 159(2)(d) require the court to weigh prejudice on both sides; a plausible, documented explanation for default, without flagrant or prejudicial conduct, counsels against striking out.
Relying on Mae Properties, John Mutai Mwangi, Abdirahman Abdi, Mukenya Ndunda and Hassan Nyange Charo, the court held that striking out is not automatic even where prerequisites are breached. The explanation here was within the respondent's control zone of proof: registry invoicing errors and duplicate files were beyond him, no irremediable prejudice to the applicants was shown, and substantial justice favoured sustaining the record for hearing on the merits.
Legal principles established
#- Where there is a plausible explanation for non-observance of procedure, or the default is not flagrant, frivolous, deliberate or reckless and has not occasioned irremediable prejudice, the Court should be disinclined to strike out an appeal; procedural rules are hand-maidens of justice, not instruments to defeat it.
- In deciding whether to strike out a document for procedural default, the court must weigh the prejudice to the innocent party against the prejudice to the offending party, having regard to the overriding objective and Article 159(2)(d) of the Constitution.
- Where an appellant is impeded by delays in the court's own administrative machinery, such as registry invoicing failures, that impediment may justify exclusion of the time and refusal to strike out the record of appeal.
Court orders
#- 1.The application dated 22nd March, 2021 is dismissed with costs
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act and Rules 82, 84, 87 and 90 of the Court of Appeal Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mutyaene v Kenya Commercial Bank Limited & another (Civil Appeal (Application) E017 of 2020) [2023] KECA 1160 (KLR)", Case Analysis (2023). COACA E012 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1160/eng@2023-10-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.