Samuel Kamau Macharia v Daima Bank Ltd [2001] KECA 338 (KLR)
The bottom line
#Kenya's Court of Appeal let a late appeal proceed because a wrong year on the notice was an obvious slip, and delay was counted from four days earlier.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the application for extension of time was lodged without delay.
- 2.Whether the applicant had shown a real desire and alacrity to lodge the appeal, or was sleeping on his rights.
- 3.Whether the intended appeal is frivolous.
- 4.Whether, in the exercise of the court's discretion, a fresh notice of appeal should be allowed and time extended for lodging the record of appeal.
Key legal issues
#Whether the application for extension of time was lodged without delay.
Yes. Only four days elapsed between the ruling of 15th June 2001 striking out the notice of appeal and the lodgment of this application; counsel's computation of two years from judgment and half a year from the striking-out was factually wrong.
The court measured delay from the ruling that struck out the notice, not from the judgment of 18th May 2000, because the applicant could take no step until the striking-out. It corrected counsel's figures from the record, found the application was filed four days after the ruling, and deprecated wild statements unsupported by facts. The respondent's assertion that the application was lodged on 19th July 2001 was also rejected as incorrect.
Whether the applicant showed alacrity to lodge the appeal or was sleeping on his rights.
He was not. Once the notice of appeal is struck out, the applicant cannot file an appeal until time is extended; the proceedings after judgment were still awaited, so the record could not be compiled.
The court held it would be illogical to demand the appeal be filed while extension remained pending, since what goes on record is not for the appellant alone to decide. The complaint about 'delaying tactics' in paying the decretal sum was misplaced because a stay of execution had been obtained from the superior court, whose correctness the Judge of Appeal declined to examine.
Whether the intended appeal is frivolous.
It is not. The applicant complains that a loan of Shs.7,000,000 grew to over Shs.67,000,000 in four years under an interest rate of 4% per month compounded with monthly rests; whether that rate was agreed is for the full court.
The Judge declined to speculate on the consequences should the appeal fail, the respondent fearing the debt could exceed Shs.100,000,000, holding that the merits of the interest-rate dispute belong to the full court hearing the appeal. On the material before him he could not brand the intended appeal frivolous, which weighed in favour of exercising his discretion to extend time.
The defective date on the notice of appeal.
The insertion of the year 1999 instead of 2000 was a slip, apparent on its face, because no judgment existed to appeal against until 18th May 2000; the notice was struck out solely on the ground that it appeared lodged a year ahead of time.
The court characterised the wrong year as a slip on the part of either the Deputy Registrar of the superior court or the advocate, observable straightaway since the judgment was delivered on 18th May 2000. This underpinned the justice of allowing a fresh notice of appeal rather than leaving the applicant remediless for a typographical error.
Legal principles established
#- Where a notice of appeal has been struck out, the intending appellant cannot file the appeal until the time for filing is extended, and cannot be faulted for the absence of the appeal in the interim.
- In an extension-of-time application, delay is measured from the ruling or event that necessitated the application (here, the striking out of the notice of appeal), not from the date of the underlying judgment.
- An obviously wrong date on a notice of appeal - here a year preceding the very judgment sought to be appealed - is a slip apparent on the face of the document.
- Factual assertions placed before the court by counsel must be supported by the material; unsupported statements carry no weight.
Court orders
#- 1.A fresh notice of appeal to be lodged within the next seven days.
- 2.The record of appeal to be lodged within 40 days thereafter.
- 3.The respondent awarded costs of the application, assessed at Shs.10,000/=, payable within the next 30 days, failing which execution may issue.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya (referred to in the judgment as 'the superior court')
- Jurisdiction invoked
- Not stated in the judgment; the matter was an application for extension of time to lodge a fresh notice of appeal and the record of appeal, determined by a single Judge of Appeal of the Court of Appeal.
Relief refused
#Respondent's opposition to the application (i.e. dismissal of the application for extension of time)
The court found the application was brought without any delay - only four days elapsed from the ruling striking out the notice of appeal - and that the intended appeal was not frivolous.
Respondent's invitation to inquire into the stay of execution obtained from the superior court and into the consequences of the intended appeal for the decretal sum
The court held that the correctness of the stay order was not a matter for it, and that the dispute over the interest rate was for the full court hearing the appeal.
Costs
The respondent will have costs of this application, which the court assessed at Shs.10,000/=. These costs must be paid within the next 30 days failing which execution may issue.
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.
I grant the application and order that a fresh notice of appeal be lodged within the next seven days and that the record of appeal be lodged within 40 days thereafter.
The respondent will have costs of this application which I assess at Shs.10,000/=. These costs must be paid within the next 30 days failing which execution may issue.
Obviously once the notice of appeal is struck out the applicant cannot file an appeal until time is extended.
It can be seen straightaway that the insertion of the year 1999 was a slip as there was no judgment to be appealed against until 18th May, 2000.
I do not think well of wild statements unsupported by facts.
I am not inclined to consider the implications which arise should the intended appeal not succeed.
Issues in the judgment
#The judgment gives conflicting lodgment dates for the application - 19th June 2001 in one passage and 19th June 2000 in another. The correct date is 19th June 2001, since the ruling striking out the notice of appeal was delivered on 15th June 2001 and the court found the delay to be four days; the year '2000' in the later passage is an apparent slip.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samuel Kamau Macharia v Daima Bank Ltd [2001] KECA 338 (KLR)", Case Analysis (2001). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/338/eng@2001-12-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.