B N Mucira t/a Mucira & Co Advocates v Kenya Commercial Bank Ltd [2000] KECA 191 (KLR)
The bottom line
#Once a Kenyan appeal is struck out it is finished — no judge can revive it, so appeal deadlines must be met the first time.
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 single Judge under rule 4 has jurisdiction to revive or reinstate a Notice of appeal in an appeal already struck out
- 2.Whether leave should be granted to file a fresh Notice and record of appeal out of time
- 3.Whether the Notice of appeal filed on 25/10/99 was within the prescribed time and whether the struck-out appeal should be reinstated
Key legal issues
#Jurisdiction of a single Judge under rule 4 to revive a struck-out appeal
The single Judge has no such jurisdiction; striking out terminates the appeal and everything done in it.
The Court held that rule 4 jurisdiction cannot be invoked to act on an appeal that no longer exists. Once CA No. 251 of 1999 was struck out, the Notice of appeal in it went with the appeal, and the single Judge could not revalidate or resurrect it, whatever the applicant thought of the earlier computation of time.
Whether leave could be granted to file a fresh Notice of appeal while another Notice remained on record
Leave was refused; a fresh Notice would duplicate a Notice already on record, and the applicant was in any event out of time under rule 81(1).
The Notice filed on 8th June 2000 without leave was still on record and there was no application to withdraw it, nor could the single Judge strike it out. Granting leave would create yet another Notice while the existing one subsisted, and the prescribed time under rule 81(1) had already expired.
Legal principles established
#- Once an appeal is struck out, all orders and steps taken in it fall with it, and a single Judge under rule 4 has no jurisdiction to revive the appeal or its Notice of appeal.
- A single Judge has no power to validate an invalid Notice of Appeal, nor jurisdiction to strike one out.
Court orders
#- 1.The application is dismissed
- 2.Costs of the application to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court (Commissioner of Assize)
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (extension of time by a single Judge)
Relief refused
#Leave to file notice and record of appeal out of time
A Notice of appeal already on record (filed 8th June 2000 without leave) could not be superseded by a further notice; the single Judge declined to exercise discretion to grant leave
Reinstatement of Civil Appeal No. 251 of 1999 and revival of its Notice of appeal
Once the appeal was struck out, the single Judge has no jurisdiction under rule 4 to revive it
Validation of the Notice of appeal filed on 8th June 2000
No prayer for validation was before the Court and the applicant had not sought to amend the motion; a single Judge cannot validate an invalid Notice of appeal
Costs
The application is 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.
Once the appeal, CA No. 251 of 1999 was struck out by the Court that was the end of that appeal. All the orders and steps taken in that appeal went with the appeal.
The jurisdiction of this Court in terms of rule 4 cannot for any reason whatsoever be invoked to do an act on appeal that no longer exists.
As a single Judge, I have no power to validate an invalid Notice of Appeal. Nor do I have Jurisdiction to strike it out even if it is potentially defective as is in the present case
On grounds alluded to above, I refuse to exercise my discretion and grant the leave as sought. This application is hereby dismissed with costs to the respondent.
Issues in the judgment
#The respondent is not named in the judgment; only counsel (Mr. Njeru) is identified.
The judgment contains no case number for the rule 4 application itself; only the struck-out appeal number (CA No. 251 of 1999) is given.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "B N Mucira t/a Mucira & Co Advocates v Kenya Commercial Bank Ltd [2000] KECA 191 (KLR)", Case Analysis (2000). Civil Application (rule 4) arising from Civil Appeal No. 251 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/191/eng@2000-12-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.