KENYA ANTI-CORRUPTION COMMISSION v FIRST MERCANTILE SECURITIES CORPORATION [2007] KECA 17 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that duplicate notices of appeal don't invalidate a case, and a notice cannot be withdrawn by merely writing a letter.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether two notices of appeal can lawfully be filed in respect of a single decision made by the superior court (court's framing: 'can two notices of appeal lawfully be filed in respect to a single decision made by the superior court?')
- 2.Whether a notice of appeal can be withdrawn by a letter
- 3.Whether the existence of two subsisting notices of appeal on one intended appeal vitiates the Notice of Motion for stay such that it must be struck out
Key legal issues
#Whether two notices of appeal may lawfully be filed in respect of a single decision of the superior court
Yes. The rules prohibit neither duplication nor treat it as fatal; rule 5(2)(b) requires only that a notice of appeal has been lodged, and where two have been lodged it cannot be said that none has been lodged. Duplication is a procedural blunder but causes the opposite party no prejudice, and an application under rule 5(2)(b) remains validly lodged so long as at least one notice subsists.
The two notices, filed on consecutive days by different advocates acting for the same applicant, attacked the same order of Nyamu J. The court read rule 5(2)(b) literally: the rule requires only that a notice of appeal has been lodged and does not stipulate one and not more than one. Duplication of notices on the same decision and issues, though a procedural blunder, does not prejudice the opposite party; the multiplicity may be cured only by a striking-out application, not by treating the appeal or the motion predicated on it as a nullity.
Whether a notice of appeal can be withdrawn by a letter addressed to the Court
No. There is no provision in the rules permitting a party to withdraw a notice of appeal it has filed. Once on record, a notice of appeal remains until struck out or dealt with under rule 82 for failure to institute the appeal in time; a letter addressed to the Court is ineffective and the purported withdrawal is a nullity.
The court examined the Court of Appeal Rules and found no rule authorising a party to withdraw a notice of appeal it had filed. Once lodged, a notice of appeal stays on the record until it is struck out or dealt with under rule 82 where the appellant fails to institute the appeal within the prescribed time. The letter written by Mr. Kimani to the Deputy Registrar therefore had no legal effect: the notice of 11th July, 2007 subsisted alongside the later notice lodged through Messrs Mohamed Muigai Advocates, leaving two subsisting notices of appeal on one intended appeal.
Whether the existence of two subsisting notices of appeal vitiates the Notice of Motion for stay so that it must be struck out
No. The proper remedy for a multiplicity of notices of appeal on the same decision is a successful application to strike out one or more of them. So long as at least one notice of appeal is on record, an application under rule 5(2)(b) has been validly lodged and can be considered.
Counsel for the respondent argued that because two notices subsisted and the attempt to withdraw one by letter was a nullity, the entire motion was vitiated and had to be struck out. The court rejected that argument: the rules' silence on withdrawal means the cure for a multiplicity of notices lies in a striking-out application, and the presence of an extra notice neither invalidates the appeal nor prejudices the respondent. The preliminary objection was therefore dismissed and the stay application remained properly before the court for consideration on its merits.
Legal principles established
#- A notice of appeal, once filed, cannot be withdrawn by letter: the Court of Appeal Rules contain no provision for its withdrawal, and it remains on the record until struck out or dealt with under rule 82 where the appeal is not instituted in time.
- Filing more than one notice of appeal on the same decision does not invalidate the appeal or defeat a rule 5(2)(b) application predicated on it.
- The only lawful cure for a multiplicity of notices of appeal on one decision is a successful application to strike out one or more of them; until that is done, at least one subsisting notice anchors a valid rule 5(2)(b) application which the court can consider.
Court orders
#- 1.Preliminary objection to the Notice of Motion for stay dismissed.
- 2.Costs shall be in the application.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C. Misc. C. Appl. No. 695 of 2007
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (the Rules of this Court) - application for stay of the superior court's order pending the lodging, hearing and determination of an intended appeal
Relief refused
#Striking out of the entire Notice of Motion for stay, as sought by the respondent through the preliminary objection
Duplication of notices of appeal on one decision does not invalidate the appeal or the rule 5(2)(b) application predicated on it, and causes the opposite party no prejudice; the proper remedy for multiple notices is a striking-out application.
Withdrawal by letter of the notice of appeal dated 11th July, 2007 lodged by Mr. Kimani
There is no provision in the rules permitting withdrawal of a notice of appeal; the letter to the Deputy Registrar was ineffective and the notice still subsists on record alongside the later notice.
Costs
Costs shall be in the application.
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.
We would, for these reasons, dismiss the preliminary objection to the Notice of Motion for stay. Costs shall be in the application.
It is trite law that there is no provision in the rules for withdrawal of a notice of appeal by a party filing it.
Also, a letter addressed to the Court cannot withdraw such a notice.
In our view, where two notices of appeal have been lodged in respect of the same decision, it cannot be said that a notice of appeal has not been lodged just because two such notices have been lodged.
Rule 5(2) (b) does not say “where one and not more than one,” notice has been lodged.
But, so long as there is at least one existing Notice of Appeal on record an application under rule 5 (2) (b) of the Rules of the Court has been validly lodged and can be considered.
Issues in the judgment
#As printed, the closing reasoning sentence appears internally inconsistent: the judgment earlier describes the duplicate filing as a 'procedural blunder', yet this passage reads 'betrays diligence', which was presumably intended as 'betrays lack of diligence'. The sense is recoverable from context and from the outcome, but the sentence is ambiguous as written.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "KENYA ANTI-CORRUPTION COMMISSION v FIRST MERCANTILE SECURITIES CORPORATION [2007] KECA 17 (KLR)", Case Analysis (2007). Civil Appli. Nai 162 of 2007 (UR 106/2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/17/eng@2007-10-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.