BANK FUR ARBEIT UND WIRTSCHAFT A.G v ATTORNEY-GENERAL & another [1999] KECA 13 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that extending time to file a notice of appeal does not extend time for filing the record of appeal itself.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there was a valid extension of time for filing the record of appeal
- 2.Whether an extension of time to file a notice of appeal automatically confers a further 60 days under Rule 81 to file the record of appeal
- 3.Whether the appeal, filed without valid extension of time, was competent
Key legal issues
#Whether the record of appeal was filed within a validly extended time
It was not. The only extension granted was five days from 30 June 1995 for the notice of appeal; no extension existed for the record, which was therefore out of time and incompetent.
The Court traced the procedural history: the single judge referred the extension application to the full Court, which on 30 June 1995 granted only five days' extension from that date. Counsel for the appellant properly conceded that relief sought but not granted is deemed refused. With no valid extension for the record, the appeal could not stand.
Whether Rule 81 confers a further 60 days to file the record once time is extended for the notice of appeal
No. The Court expressly rejected that reading of Rule 81.
The appellant argued that an extension of time for the notice of appeal automatically opened a further 60-day window under Rule 81 for filing the record. The Court disagreed, holding that the absence of a valid extension for the record left it ex facie out of time and incompetent, warranting striking out.
Legal principles established
#- An extension of time to file a notice of appeal does not, of itself, extend the time for filing the record of appeal; a separate extension is required, failing which the record is out of time and the appeal incompetent.
- A record of appeal filed without a valid extension of time is ex facie out of time and incompetent, and the appeal will be struck out.
Court orders
#- 1.The appeal is struck out
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 5739 of 1990
- Jurisdiction invoked
- Appeal from an order of the High Court of Kenya at Nairobi; the Court exercised its jurisdiction over an appeal filed without a valid extension of time under the Court of Appeal Rules (Rule 81 considered).
Relief refused
#Validation of the record of appeal filed without a valid extension of time
The only extension granted was five days from 30 June 1995 for filing the notice of appeal; no extension was granted for filing the record, so the record was out of time and incompetent.
The argument that Rule 81 grants a further 60 days to file the record once time is extended for the notice of appeal
The Court rejected the contention that an extension for the notice of appeal triggers a further 60-day period under Rule 81.
Costs
The appeal is struck out but with no order as to costs.
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, therefore, no valid extension of time for the filing of the record of appeal.
The argument that once time is extended to file a notice of appeal Rule 81 applies and there are further 60 days to file the record is one with which we do not agree.
Accordingly in the absence of any valid extension of time for filing the record, it is ex facie out of time and therefore incompetent. The appeal is struck out but with no order as to costs.
Issues in the judgment
#The judgment is dated and delivered at Nairobi on 8 July 1999, but the coram listing and the body of the ruling are extremely brief and the ruling refers to a 1995 reference decision; the four-year gap between hearing/reference and delivery is unexplained on the face of the judgment.
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.
Cite this brief
#Cite this brief
Caselaw, "BANK FUR ARBEIT UND WIRTSCHAFT A.G v ATTORNEY-GENERAL & another [1999] KECA 13 (KLR)", Case Analysis (1999). Civil Appeal 157 of 1995. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1999/13/eng@1999-07-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.