KENYA ANTI-CORRUPTION COMMISSION v FIRST MERCANTILE SECURITIES CORPORATION (Civil Application 163 of 2007) [2007] KECA 238 (KLR)
The bottom line
#The Court of Appeal confirmed that duplicate notices of appeal don't invalidate a stay application, but a notice of appeal can't be withdrawn by just writing a letter.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.Can two notices of appeal lawfully be filed in respect of a single decision made by the superior court?
- 2.Can a notice of appeal be withdrawn by a letter?
- 3.Whether, given the two subsisting notices of appeal, the notice of motion for stay is vitiated and must be struck out
Key legal issues
#Whether a notice of appeal can be withdrawn by a letter to the Deputy Registrar
No. The rules make no provision for withdrawal of a notice of appeal; a letter is ineffective and the notice subsists until struck out or dealt with under rule 82.
The court held it trite law that the rules contain no provision for withdrawal of a notice of appeal by the party who filed it. A notice of appeal once on record remains on record until struck out or dealt with under rule 82 where the appellant fails to institute an appeal within the prescribed time. A letter addressed to the court cannot effect withdrawal, so the applicant's letter was ineffective and the notice of appeal dated 11 July 2007 still subsists.
Whether two notices of appeal lodged in respect of the same decision vitiate an application under rule 5(2)(b)
No. The filing of two or more notices of appeal on one decision, though a procedural blunder betraying lack of diligence, causes no prejudice and does not invalidate a rule 5(2)(b) application so long as one notice subsists.
Rule 5(2)(b) does not restrict lodgment to one notice only, so the existence of a duplicate notice does not mean no notice was lodged. Filing two notices betraying lack of diligence causes no prejudice to the opposite party. The proper remedy for the multiplicity is an application to strike out; the preliminary objection was therefore dismissed and the stay application could be considered on the merits.
Legal principles established
#- There is no provision in the Court of Appeal Rules for withdrawal of a notice of appeal by a letter; a notice of appeal on record remains until struck out or dealt with under rule 82.
- The lodgment of two or more notices of appeal in respect of the same decision does not invalidate the appeal process; a valid notice of appeal is lodged provided at least one subsists.
- The only way to remove a multiplicity of notices of appeal from the same decision is by a successful application to strike out one or more of them.
Court orders
#- 1.Preliminary objection to the Notice of Motion for stay dismissed
- 2.Costs of the preliminary objection to 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
- Inherent appellate jurisdiction under the Court of Appeal Rules (rule 5(2)(b)), on an application for stay pending intended appeal
Relief refused
#Respondent's request that the entire Notice of Motion for stay be struck out as vitiated by the duplicate and irremovable notice of appeal
The court held that the existence of two notices of appeal does not invalidate a rule 5(2)(b) application so long as at least one notice of appeal subsists on record
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.
It is trite law that there is no provision in the rules for withdrawal of a notice of appeal by a party filing it. A notice of appeal on record remains so until struck out or dealt with under the provisions of rule 82 of the Rules of this Court
Also, a letter addressed to the Court cannot withdraw such a notice. It must, therefore, follow that the applicant could not and did not in law withdraw its notice of appeal dated 11th July, 2007
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.
We would, for these reasons, dismiss the preliminary objection to the Notice of Motion for stay. Costs shall be in the application.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "KENYA ANTI-CORRUPTION COMMISSION v FIRST MERCANTILE SECURITIES CORPORATION (Civil Application 163 of 2007) [2007] KECA 238 (KLR)", Case Analysis (2007). Civil Appli. No. 163 of 2007 (UR 106/2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/238/eng@2007-10-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.