Rajnikant Karsandas Somaia v Oriental Commercial Bank of Ltd (formerly Delphis Bank Limited) & 5 others [2007] KECA 167 (KLR)
The bottom line
#Kenya's Court of Appeal struck out three notices of appeal because a vague omnibus notice blocked later, more specific ones.
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 Notice of Appeal dated 5th May 2005, which appealed against the whole of the decision of 4th May 2005 without specifying the part complained of, was valid under rule 74(3) of the Court of Appeal Rules
- 2.Whether the two later, specific Notices of Appeal dated 10th and 16th May 2005 could properly stand while the earlier omnibus Notice of Appeal of 5th May 2005 remained on record
- 3.Whether the Notices of Appeal should be deemed withdrawn for failure to institute appeals within time
Key legal issues
#Validity of an omnibus Notice of Appeal under rule 74(3)
A Notice of Appeal appealing against 'the whole of the said decision' where several orders were made, one of which was in the appellant's favour, is defective and invalid because it fails to specify the part complained of.
Rule 74(3) is couched in mandatory terms: a notice must state whether the appeal is against the whole or part of a decision and, where only part, must specify that part. The Notice of 5th May 2005 targeted the whole decision of 4th May 2005, including an order granting leave to appeal in the bank's own favour, and did not specify the decisions it truly challenged. Counsel for the bank conceded the defect, and the court agreed the notice was incurably defective, applying Richard Kanyago v David Mukii Mereka.
Filing subsequent Notices of Appeal while an original Notice of Appeal remains on record
Once an original Notice of Appeal exists on record, later Notices of Appeal directed at parts of the same decision cannot properly be filed or stand on the record, even if intended to originate different appeals.
The defective omnibus Notice of 5th May 2005 covered the same two decisions addressed by the notices of 10th and 16th May 2005. Since it had not been struck out, it remained extant, and the two later notices were filed during its lifetime. Following South Nyanza Sugar Co. Ltd v Hesbon Onyuro, Trans National Bank of Kenya v Hassan Amdun and Fortune Finance Ltd v Geoffrey Ngugi Githaiga, the court held that no fresh notice may be filed while the original remains on record.
Deeming notices of appeal withdrawn for failure to institute appeals
The court declined to rule on whether the notices should be deemed withdrawn for lapse of time because the appeals had already been filed, rendering that question moot; the validity of the filed appeals was likewise not before the court.
The applications sought withdrawal of the notices on the ground that over twelve months had elapsed without appeals being instituted. Since the appeals had in the interim been filed, the factual predicate for the prayer had disappeared. The court also declined to examine the validity of the filed appeals, noting its decision would simply help the parties chart their next course in those appeals.
Legal principles established
#- A Notice of Appeal that does not comply with rule 74(3) of the Court of Appeal Rules - failing to state whether the appeal is against the whole or part of the decision and to specify the part complained of - is not a valid Notice of Appeal and is incurably defective.
- So long as an original Notice of Appeal remains on record, no further or fresh Notice of Appeal may properly be filed in respect of the same matter; subsequent notices are not properly on record.
- An omnibus Notice of Appeal against the whole of a decision covering several orders cannot be separated from later specific notices directed at parts of that same decision.
Court orders
#- 1.The three applications (Civil Appli 194, 195 and 196 of 2006) are allowed
- 2.The Notices of Appeal dated 5th May 2005, 10th May 2005 and 16th May 2005 are each struck out
- 3.The first respondent shall pay the costs of each application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Kisumu
- H.C.C.C. No. 164 of 2003
- Jurisdiction invoked
- Inherent/appellate jurisdiction of the Court of Appeal over notices of appeal, under the Court of Appeal Rules (rule 74(3))
- Consolidated with
- Civil Application No. 194 of 2006, Civil Application No. 195 of 2006
Relief refused
#Deeming the Notices of Appeal as having been withdrawn for failure to institute appeals within the stipulated time
The appeals had by the time of hearing been filed, so the question was no longer live; the court declined to examine the validity of the filed appeals
Costs
The first respondent shall pay the costs of each 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.
That rule is coached in mandatory terms and in our view, a Notice of Appeal that does not comply with the requirements of that Rule cannot be considered a valid Notice of Appeal.
As the appellant’s Notice of Appeal does not accord with rule 74(3), above, which is worded in mandatory terms, and in view of the fact that the Rules do not permit amendment of primary documents the notice of appeal is incurably defective and renders the present appeal incompetent.
A notice of appeal is a primary document within the meaning of rule 85 of the Rules and the learned Judge had clearly no jurisdiction to make an order for filing a fresh Notice of Appeal while the original was still extant.
In the result, these three applications are allowed. The Notices of Appeal dated 5th May, 2005, 10th May, 2005 and 16th May, 2005 are each struck out. The first respondent shall pay the costs of each application. Orders accordingly.
Issues in the judgment
#The judgment refers inconsistently to the date of the impugned High Court decision, in places as 4th May 2005 and in one passage as 5th May 2005.
Counsel's submission is recorded as referring to orders made on 4th May 2006, whereas the decision under challenge was made on 4th May 2005 - an apparent typographical error.
The ruling refers to 'the first appellant' in a passage discussing the first respondent (Delphis Bank), an apparent mis-description.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rajnikant Karsandas Somaia v Oriental Commercial Bank of Ltd (formerly Delphis Bank Limited) & 5 others [2007] KECA 167 (KLR)", Case Analysis (2007). Civil Appli Nos. 194, 195 & 196 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/167/eng@2007-11-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.