I.C.Kamau Ndirangu v Commercial Bank of Africa Limited [1994] KECA 86 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a borrower's bid to undo a judgment on an admitted bank debt, ruling his five-and-a-half-year delay and conduct disqualify him.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether a notice of appeal, once filed, could be withdrawn by a letter to the Deputy Registrar, and whether mere filing of a notice of appeal constituted preferment of an appeal so as to bar a review under order 44 rule 1 of the Civil Procedure Rules
- 2.Whether the appellant's delay of over 5½ years in applying for review was inordinate and satisfactorily explained, constituting sufficient reason for review
- 3.Whether the letter of admission of debt dated 4th November, 1983, was written under duress and whether the judgment entered on admission should be set aside on review
- 4.Whether the injunction restraining the appellant from selling or disposing of the suit land was oppressive, granted without proof of irreparable damage, and against the balance of convenience
- 5.Whether the appellant's conduct amounted to mala fides
Key legal issues
#Withdrawal of a notice of appeal
A notice of appeal cannot be withdrawn by writing a letter to the Deputy Registrar of the High Court or Court of Appeal; withdrawal occurs only by deemed withdrawal under rule 82(a) of the Court of Appeal Rules on failure to institute the appeal in time
The appellant's advocates wrote a letter purporting to withdraw the notice of appeal filed on 1st July, 1987. The court found no rule permitting such withdrawal, but noted rule 82(a) deems a notice withdrawn where no appeal is instituted within the appointed time. The trial judge erred in holding that mere filing of the notice constituted preferment of an appeal, but this error did not avail the appellant given the inordinate delay.
Sufficient reason for review and inordinate delay
A delay of over 5½ years in applying for review was inordinate and unexplained; the reasons advanced did not constitute sufficient reason to allow review
Whether delay is inordinate is relative and depends on the circumstances. The appellant's explanations - difficulties obtaining typed proceedings and protracted litigation - did not hold water, especially as his own advocates took two years to file the review application. The judge was right to reject the application for review of the judgment entered on the admitted debt.
Duress and the letter of admission
No duress was detected in the letter of admission of 4th November, 1983; it was a normal loan restructuring transaction, and disputes over credits and sale proceeds were matters for trial
The court evaluated the letter and surrounding circumstances and found a normal transaction in which a borrower pressed by one lender arranges for another to take over the loan. Claims that the Bank misstated amounts credited from the Coffee Board of Kenya or from sale of the sub-divisions were never deponed to in a replying affidavit and were properly left for trial on the outstanding counter-claim.
Injunction - irreparable damage, balance of convenience and mala fides
The injunction restraining sale of the suit land was properly granted: the probability of irreparable loss to the Bank was real, the balance of convenience favoured the Bank, and the appellant's conduct was tainted with mala fides
The appellant obtained the title deed freed of charge without repaying the loan, obtained titles to 20 sub-plots and advertised them for sale while knowing the mortgage was unpaid. The Bank had lost its security through its own contempt, and no court would allow a legally indefeasible right to be frustrated so. The trial judge considered all pros and cons; the court endorsed his findings and conclusions on both limbs of the Giella test.
Adequacy of remaining security
A chargor cannot unilaterally sell charged property released of the charge on the ground that remaining security suffices to cover the debt
The appellant argued the other two mortgaged plots were worth far more than the counter-claim, so the injunction was oppressive. The court held the mortgage covered all the properties and there was no legal basis for the appellant, without the Bank's consent, to sell the suit land freed of the charge simply because the remaining security was adequate.
Legal principles established
#- A notice of appeal once filed cannot be withdrawn by a mere letter to the Deputy Registrar; only failure to institute the appeal within the appointed time under rule 82(a) of the Court of Appeal Rules amounts to deemed withdrawal
- The mere filing of a notice of appeal does not constitute preferment of an appeal for purposes of order 44 rule 1 of the Civil Procedure Rules; order 41 rule 4(4) is confined to staying execution
- Inordinate delay is a relative term; whether delay is inordinate depends on the circumstances and reasons causing it, and unexplained inordinate delay defeats a review application
- A court will not permit a legally indefeasible right, such as a duly registered mortgage security, to be frustrated by a party taking undue advantage of a fortuitous turn of events
Court orders
#- 1.Appeal dismissed
- 2.Appellant to pay the respondent's costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court (Court of Appeal Rules; notice of appeal filed 1st July, 1987)
Relief refused
#Review and setting aside of the judgment of 29th June, 1987 entered on the admitted sum of Shs 8,068,002/70
No sufficient reason; the delay of over 5½ years was inordinate and not satisfactorily explained; the notice of appeal had not been validly withdrawn and its mere filing did not bar review, but the delay and circumstances did not justify review
Setting aside of the injunction restraining the appellant from selling or disposing of LR No 12241
The probability of irreparable loss to the Bank was very real; balance of convenience favoured the injunction; the appellant's conduct was tainted with mala fides
Costs
Appeal dismissed with costs to the respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
there is no provision either in the Civil Procedure Rules or in the Court of Appeal Rules which allows a notice of appeal, once filed in the Court of Appeal, to be withdrawn in this manner viz: by writing a letter to the Deputy Registrar of the High Court and/or the Deputy Registrar of the Court of Appeal
a mere filing of notice of appeal did not constitute preferment of an appeal
the delay of over 51/2 years, which, it cannot be disputed, is an inordinate delay, has not been satisfactorily explained
no Court of law in Kenya will allow a legally indefeasible right to be frustrated in such a manner
Having now considered all the grounds of appeal and the submissions so tenaciously made and maintained by Mr Gatonye on behalf of the appellant, we have come to the conclusion that this appeal must fail and we, therefore, dismiss it with costs.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Makara v Kirichu & 7 others (Civil Appeal 76 of 2020) [2025] KECA 1221 (KLR)[2025] KECA 1221 (KLR)4 Jul 2025followed
Cite this brief
#Cite this brief
Caselaw, "I.C.Kamau Ndirangu v Commercial Bank of Africa Limited [1994] KECA 86 (KLR)", Case Analysis (1994). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1994/86/eng@1994-01-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.