Consolidated Bank of Kenya Ltd v Ndugu & 5 others (Environment and Land Appeal E053 of 2022) [2024] KEELC 451 (KLR)
The bottom line
#The High Court in Meru reinstated a struck-out appeal because the delay was short and the other side showed no real prejudice, despite the appellant lawyer's poor conduct.
What this practically means
#Executive summary
#Key legal issues
#Whether counsel's non-compliance and delay should be excused so the appeal may be reinstated
The application was allowed despite partial inexcusable delay, because the delay was short (less than three months) and the respondents showed no compensable prejudice.
The court acknowledged counsel gave priority to other files and did not comply with directions given in his presence, so the non-compliance was not wholly excusable. However, applying the overriding objective and Article 159, and citing authority that the right of appeal is constitutional, the court weighed the prejudice to the respondents and found none stated that costs could not compensate. The delay was under three months, so reinstatement served substantive justice.
Who bears responsibility for filing the record of appeal
The duty rests squarely on the appellant, and mistakes of counsel attending to other matters do not excuse non-compliance with directions given in counsel's presence.
The court found that directions for filing the record were issued in the presence of the applicant's advocate on 21.9.2023, who sought and obtained 7 more days. Counsel then did nothing for seven days and did not seek an extension. The court rejected the argument that this was an oversight, holding counsel chose to prioritise other files, and the applicant could not blame the court for the resulting striking out.
Legal principles established
#- Delay alone should not prevent the court from doing justice to the parties; the court must weigh prejudice to the respondent before striking out an appeal
- Under order 42 rule 13, the duty to seek directions and file the record of appeal rests with the appellant
- An appeal should not be left to hang indefinitely over respondents; justice demands appeals be resolved to avoid stale appeals
Court orders
#- 1.The order of 28.9.2023 striking out the appeal is set aside (application allowed)
- 2.The record of appeal shall be filed and served within 14 days from the date of the ruling
- 3.The appeal is reinstated for hearing on merits
- 4.Costs of the application awarded to the 5th and 6th respondents
- On appeal from
- Lower court (magistrates' court)
- Jurisdiction invoked
- Order 42 rules 13 & 35 of the Civil Procedure Rules; sections 1A & 1B of the Civil Procedure Act as read with Article 159(2) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Consolidated Bank of Kenya Ltd v Ndugu & 5 others (Environment and Land Appeal E053 of 2022) [2024] KEELC 451 (KLR)", Case Analysis (2024). Not stated in the extract (appeal admitted on 13.6.2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/451/eng@2024-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.