Automated Summary
Key Facts
John Benjamin Wanyama applied to strike out Kenya Commercial Bank's notice of appeal dated 18th June 2015, lodged on 24th June 2015. The applicant argued the notice was incompetent under Court of Appeal Rules 77(1) and 82 for failure to serve him with the notice and for not filing the record of appeal within the required timeframe. The respondent countered that the applicant refused service and claimed the application was premature. The Court ruled the notice of appeal was struck out due to procedural non-compliance with Rules 77(1) and 82, and the respondent was ordered to pay the applicant's costs.
Issues
The court addressed whether Kenya Commercial Bank's notice of appeal was validly served on the applicant and filed within the prescribed time limits under the Court of Appeal Rules. Key issues included non-compliance with Rule 77 (1) requiring service on all directly affected persons, failure to meet Rule 82's 60-day deadline for filing the record of appeal, and the timeliness of the applicant's Rule 84 application to strike out the appeal. The ruling highlighted procedural missteps in initiating the appeal, particularly the absence of a written application for proceedings and failure to serve the applicant, leading to the notice of appeal being struck out.
Holdings
The Court of Appeal struck out the respondent's notice of appeal lodged on 24th June 2015 for failing to comply with Rules 77(1) and 82 of the Court's Rules. The court found no evidence of service to the applicant and the record of appeal was not filed within the required timeframe, leading to the appeal being deemed incompetent. The respondent is ordered to pay the applicant's costs arising from this.
Remedies
- The respondent shall pay the applicant's costs arising from the application to strike out the notice of appeal.
- The respondent's notice of appeal lodged on 24th June 2015 is struck out in accordance with Rule 84 of the Court's Rules.
Legal Principles
The Court of Appeal applied its procedural rules to determine the validity of an appeal. Specifically, it emphasized compliance with Rule 77(1) (requirement to serve affected parties within seven days of lodging an appeal), Rule 82 (timeframe for filing the memorandum and record of appeal, with a proviso allowing exclusion of preparation time if a written application for proceedings is served on the respondent), and Rule 84 (authority to strike out an appeal for non-compliance with procedural steps within prescribed timelines). The court found the respondent had failed to serve the applicant with the notice of appeal and had not properly applied for proceedings, rendering the appeal incompetent.
Precedent Name
- Shabbir Ali Jusab vs Anaar Osman Gamrai & Another
- James Mayaka Mong'are vs Everline Kerubo Makini & another
Cited Statute
Court of Appeal Rules
Judge Name
- A. K. MURGOR
- D. K. MARAGA
- D. K. MUSINGA
Passage Text
- Consequently, and in terms of rule 84, the notice of appeal lodged on 24th June, 2015 is hereby struck out. The respondent shall pay the applicant's costs arising therefrom.
- Rule 77 (1) stipulates: 'An intended appellant shall, before or within seven days after lodging notice of appeal, serve copies thereof on all persons directly affected by the appeal.'
- Rule 84 further stipulates: 'A person affected by an appeal may at any time, either before or after the institution of the appeal, apply to the Court to strike out the notice or the appeal, as the case may be, on the ground that no appeal lies or that some essential step in the proceedings has not been taken or has not been taken within the prescribed time.'