Mwangi & 20 others v Barclays Bank of Kenya Limited & another (Constitutional Petition 25 of 2016) [2023] KEELRC 2922 (KLR)

The court perused the record and found a Notice of Appeal filed a day after the ruling. The objection that the notice was invalid for want of prior leave was held to be a matter for the Court of Appeal, following National Industrial Credit Bank Ltd v Aquinas Francis Wasike. The validity of a notice of appeal is to be determined under rule 80 by striking out, not collaterally in a stay application.

The ruling under challenge was delivered on November 3, 2022 and the notice of appeal was filed on November 4, 2022, one day later. The court therefore found no unreasonable delay, satisfying one limb of Order 42 rule 6(2).

The applicants argued that fresh taxation before a different taxing officer would deny them the benefit of their appeal. The court adopted the Court of Appeal's reasoning that maintaining the status quo serves both parties, since re-taxation before the appeal is determined would render the appeal academic. It also found no prejudice since the decree including assessed costs had been settled, and only additional costs from fresh taxation were in issue.

The court noted that the applicant had settled the decree including costs as assessed by the taxing master, and what remained in dispute was only additional costs that might arise from fresh taxation. In those circumstances no prejudice would be suffered by either party if leave and the consequential stay were granted.