Kiplagat Kotut v Rose Jebor Kipngok Standard Chartered Bank Ltd (Garnishee) [2020] KEELC 1067 (KLR)
The bottom line
#A Kenyan court dismissed a bid to freeze a bank account because the appellant filed documents late and unpaid, leaving no valid evidence.
What this practically means
#Executive summary
#Key legal issues
#Whether a preservatory order (account freeze) should issue pending appeal under Order 40 Rule 2
No - the application failed because the evidential foundation was struck out; the remaining affidavit material was insufficient to support the preservatory order.
The court had earlier struck out paragraphs 5 and 8 of the supporting affidavit in its ruling of 12 February 2020. The Appellant sought to fill the gap with a supplementary affidavit, but leave granted on 12 February 2020 to file within seven days lapsed on about 19 February 2020 without any extension being sought. Copies filed in May and July 2020 were therefore irregular. Additionally, of the documents stamped 29 July 2020, only the supplementary submissions were paid for; the affidavit and submissions carried no filing fees. The evidentiary basis for preservation thus collapsed and the motion was dismissed with costs.
Costs of the application
The Respondent, having opposed the Motion by replying affidavit and submissions, is entitled to costs under Section 27 of the Civil Procedure Act.
The court applied the general costs rule in Section 27 of the Civil Procedure Act (Cap. 21), awarding costs to the successful Respondent who had filed a replying affidavit and written submissions in opposition to the Motion. The Motion was accordingly dismissed with costs.
Legal principles established
#- Documents filed outside the time granted by the court, and without payment of requisite filing fees, are irregularly on record and liable to be struck out.
Court orders
#- 1.The Appellant's supplementary affidavit copies and submissions improperly on record struck out for being irregularly filed and unpaid for
- 2.The Appellant's Motion dated 10th September, 2019 dismissed with costs
- On appeal from
- Deputy Registrar, High Court Eldoret (ruling striking out execution application in Eldoret High Court Misc. Application No. 145 of 2019)
- Eldoret High Court Misc. Application No. 145 of 2019
- Jurisdiction invoked
- Appellate/procedural jurisdiction under the Civil Procedure Act and Rules (Order 40 Rule 2 of the Civil Procedure Rules invoked for preservatory orders pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kiplagat Kotut v Rose Jebor Kipngok Standard Chartered Bank Ltd (Garnishee) [2020] KEELC 1067 (KLR)", Case Analysis (2020). Notice of Motion dated 10th September, 2019 (arising from C.A.C.A. No. 31 of 2015; Eldoret High Court Misc. Application No. 145 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1067/eng@2020-10-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.