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Case Brief · caselaw.co.ke
High CourtPartially AllowedCivil Appeal No 109 of 2018· [2020] KEHC 2951 (KLR)

FIRST COMMUNITY BANK LIMITED v TALIB OMAR SAID

High Court of Kenya
2 October 2020
POP.J.O. Otieno
1,958 words in judgment
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The bottom line

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Minor procedural errors, like slight filing delays or using a legal officer's affidavit, won't automatically kill your case.

What this practically means

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Executive summary

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First Community Bank (the Applicant) moved the High Court at Mombasa by an amended Notice of Motion dated 25.5.2020 seeking to set aside orders of 15.3.2019 summarily rejecting its appeal for being filed out of time without leave or a certificate of delay, and for leave to file its Memorandum and Record of Appeal out of time. The appeal challenged a judgment delivered on 29.5.2018; the Memorandum of Appeal was filed on 29.6.2018, two days outside the thirty-day period under Section 79G of the Civil Procedure Act. The Respondent opposed, arguing the supporting affidavit sworn by Claris Ogombo, a legal officer of the corporate applicant, was incompetent for want of authority, and that the applicant slept on its rights for eighteen months. The court framed three issues: competence of the affidavit, admission of the Memorandum of Appeal out of time, and timeliness of the Record of Appeal. Applying Kamlesh Pattni, the court held a legal officer or advocate may swear an affidavit for a corporate client and the application was not defective. Applying the Supreme Court's Salat principles and Phillip Chemwolo, it found the two-day delay an excusable mistake with no demonstrated prejudice to the respondent, and admitted the Memorandum of Appeal. It further held no statutory timeline governs filing of a Record of Appeal to the High Court. The application was allowed in terms of prayer 2, the Memorandum deemed properly on record, with costs abiding the appeal.

Key legal issues

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01

Capacity of a legal officer to swear a supporting affidavit for a corporate applicant

Holding

The affidavit is competent; a legal officer may depone to facts within personal knowledge or from disclosable sources.

Reasoning

Relying on Kamlesh M.A. Pattni v Nasir Ibrahim Ali, the court analogised Claris Ogombo to counsel Paul Muite who was not a party but swore an affidavit. A corporation can only depone through its officers, and no rule forbids an advocate or officer from swearing an affidavit for a client. The application was therefore not defective.

p. 2
02

Whether the Memorandum of Appeal filed two days late should be admitted out of time under Section 79G

Holding

Yes - the two-day delay was an excusable mistake and no prejudice was shown by the respondent.

Reasoning

Applying the Salat extension-of-time principles and Phillip Chemwolo, the court held the delay of barely two days was inadvertent, the applicant bore no fraud or intention to overreach, and the respondent demonstrated no prejudice. Interests of justice favoured ventilating the appeal on the merits.

p. 3
03

Timeliness of the Record of Appeal

Holding

No statutory timeline governs filing of a Record of Appeal to the High Court; the respondent's objection was misguided.

Reasoning

The court noted directions on filing the Record of Appeal had not yet been given and that no statutory provision prescribes timelines for a Record of Appeal to the High Court, so the filing on 2/11/2018 could not be irregular.

p. 3

Legal principles established

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  • A non-party such as a legal officer or advocate may swear an affidavit on behalf of a corporate client based on personal knowledge or disclosable sources; the mere fact an advocate swore an affidavit does not render it incurably defective.
  • There is no statutory provision prescribing timelines for filing a Record of Appeal to the High Court.

Court orders

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  1. 1.Application allowed in terms of prayer 2 - orders of 15.3.2019 summarily rejecting the appeal set aside
  2. 2.Memorandum of Appeal filed on 29/6/2018 deemed to be properly on record
  3. 3.Parties to exchange written submissions within 30 days and fix a mention date for directions
  4. 4.Costs of the application to abide the outcome of the appeal

Authorities

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Legislation

  • Civil Procedure ActSection 79G

Cases cited (4)

  • Kamlesh M.A. Pattni – Vs – Nasir Ibrahim Ali & 2 Others
    CA 354/2004

    No express prohibition against an advocate swearing an affidavit on facts within his knowledge on behalf of a client

  • Nicholas Kiptoo Korir Arap Salat v Independent Electoral & Boundaries Commission & 7 others
    [2014] eKLR

    Principles governing exercise of discretion to extend time

  • Phillip Chemwolo & Another Vs Augustine Kubende
    [1982-1988] KAR at 1040

    Broad equity approach - blunders can be put right by payment of costs absent fraud

  • Richard Ncharpi vs IEBC
    Nyeri CA 18/2013

    Cited with approval alongside Phillip Chemwolo on excusable mistakes

Jurisdiction invoked
Section 79G of the Civil Procedure Act (inherent discretion to admit appeal out of time and set aside summary rejection)

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, "FIRST COMMUNITY BANK LIMITED v TALIB OMAR SAID", Case Analysis (2020). Civil Appeal No 109 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/kehc/2020/2951/eng@2020-10-02

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