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Court of AppealDismissedApplication dated 1st August 2019 in the appeal arising from the judgment delivered on 10th February 2015 (number not stated)· [2024] KECA 1153 (KLR)

Maroko v Co-operative Bank of Kenya (Civil Application 266 of 2019) [2024] KECA 1153 (KLR)

Court of Appeal of Kenya
20 September 2024
1,387 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Court of Appeal ruled that once you consent to an appeal record being filed, you cannot later challenge the validity of the notice of appeal behind it.

What this practically means

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Executive summary

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This is a decision of a three-judge bench of the Court of Appeal at Nairobi (Musinga, P, Gatembu Kairu and Mumbi Ngugi, JJ A) delivered on 20th September 2024 in a single judgment of the court. The applicant, Onesmus Omwenga Maroko (since deceased and substituted by his widow), applied to strike out the respondent's notice of appeal filed on 26th February 2015 and the record of appeal filed on 24th July 2019, contending that the notice of appeal was filed out of time without leave and was never served. The judgment appealed from had been delivered on 10th February 2015. The respondent opposed, averring that the record of appeal was filed pursuant to a consent order recorded on 26th June 2019 allowing it 30 days to file, and that the applicant raised no objection to the validity of the notice of appeal when entering the consent. At the hearing only the applicant's counsel appeared. The Court held that, having consented to the filing of the record of appeal without complaint, the applicant could not renege and go behind the consent to attack the notice of appeal indirectly; any such challenge fell within rule 86 (formerly rule 84) of the Court's Rules. Relying on its jurisprudence in William Mwangi Ngaruki v Barclays Bank of Kenya Ltd and Salama Beach Hotel Limited v Kenyariri & Associates Advocates, the Court dismissed the application. Because the applicant was deceased, the Court declined to make any order for costs against his estate. The decision binds subordinate courts and the High Court on the preclusive effect of consent orders on challenges to notices of appeal.

Key legal issues

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01

Whether a party who has consented to the filing of a record of appeal may thereafter challenge the validity of the notice of appeal underlying the record

Holding

The applicant may not. Having consented to the filing of the record of appeal without raising any issue as to the validity or service of the notice of appeal, he cannot renege from the consent and attack the notice of appeal indirectly through the record of appeal. The proper course was an application under rule 86 (formerly rule 84).

Reasoning

The Court found it indisputable that a notice of appeal was filed, albeit one day late, and that a consent order was recorded for the filing of the record of appeal without any complaint by the applicant regarding the notice of appeal's validity or lack of service. Counsel conceded the record was filed pursuant to the consent. The Court held that the applicant's real grievance lay within rule 86 of the Court's Rules, which bars attacking a notice of appeal via the record of appeal, and that the jurisprudence under that rule, including the William Mwangi Ngaruki and Salama Beach Hotel decisions, doomed the application.

p. 3
02

Whether the application to strike out the notice and record of appeal was merited

Holding

It was not. The application was dismissed, and because the applicant had died and been substituted by his widow, no order of costs was made against his estate.

Reasoning

The Court noted the consent order of 26th June 2019 allowing the record of appeal to be filed within 30 days, the record having been duly filed on 24th July 2019, and the applicant's failure to controvert the respondent's averments. Guided by rule 86 and the Court's established jurisprudence, the Court found the application devoid of merit. On costs, the Court exercised discretion in favour of the deceased applicant's estate, declining to burden it with a costs order despite the dismissal.

p. 3

Legal principles established

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  • A party who consents to an order allowing the filing of a record of appeal cannot later go behind that consent to attack the validity of the underlying notice of appeal; any objection to a notice of appeal must be raised by the procedure under rule 86 (formerly rule 84), not by an application to strike out the record of appeal
  • Entry into a consent for filing a record of appeal gives rise to a presumption that there was a valid notice of appeal, or that the party has waived any objection to its validity

Court orders

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  1. 1.The application dated 1st August 2019 is dismissed
  2. 2.No order for costs against the applicant's estate, the applicant having died and been substituted by his widow

Authorities

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Legislation

  • Appellate Jurisdiction Actsection 3A
  • Appellate Jurisdiction ActRule 74(2)
  • Appellate Jurisdiction ActRule 76(1)
  • Appellate Jurisdiction ActRule 80
  • Court of Appeal Civil Appeals and Application Practice Directions 2015general
  • Court of Appeal Rulesrule 86
  • Court of Appeal Rules (2010)rule 84

Cases cited (2)

  • William Mwangi Ngaruki v Barclays Bank of Kenya Ltd
    [2014] eKLR
  • Salama Beach Hotel Limited & 4 Others v Kenyariri & Associates Advocates & 4 Others
    [2016] eKLR
On appeal from
Not stated
Not stated
Jurisdiction invoked
Court of Appeal Civil Appeals and Application Practice Directions 2015, section 3A and Rules 74(2), 76(1) and 80 of the Appellate Jurisdiction Act

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, "Maroko v Co-operative Bank of Kenya (Civil Application 266 of 2019) [2024] KECA 1153 (KLR)", Case Analysis (2024). Application dated 1st August 2019 in the appeal arising from the judgment delivered on 10th February 2015 (number not stated). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1153/eng@2024-09-20

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