Khan Mohammed Salim T/A Khan & Associates Advocates v National Industrial Credit Bank & 3 others [2007] KECA 386 (KLR)
The bottom line
#The Court of Appeal struck out an appeal because its documents were served late without the court's permission, and the defaulting side paid all costs.
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 record of appeal lodged on 27th April 2006 and served out of time on 5th May 2006 without leave of the Court should cause the appeal to be struck out
- 2.Whether the respondent should be granted an extension of time to regularise the late service
- 3.Whether the court should determine the validity of the order raised in prayer (a) of the motion
Key legal issues
#Consequence of service of a record of appeal out of time without leave
Service of the record of appeal out of time without leave of the Court leaves the respondent with no valid answer to a strike-out application, and the appeal is struck out with costs to the applicant.
Counsel for the respondent conceded that the record of appeal was served out of time and sought an opportunity to apply for extension of time. The court noted that the present motion had itself been served nearly a year earlier, so there was no basis for granting the indulgence. Since service was out of time and without leave, prayer (c) had to succeed. The court declined to determine the separate question of the validity of the order raised in prayer (a), as it had become unnecessary in view of the outcome on prayer (c).
Legal principles established
#- A record of appeal must be served within the prescribed time or with leave of the Court; service out of time without leave affords no valid answer to an application to strike out the appeal
Court orders
#- 1.Civil Appeal No. 96 of 2006 struck out
- 2.Costs of the appeal awarded to the applicant
- 3.Costs of the motion awarded to the applicant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kisumu
- H.C.C.C. No. 89 of 2000
- Jurisdiction invoked
- Inherent appellate jurisdiction of the Court of Appeal over applications arising from intended/proposed appeals (the application to strike out a civil appeal)
Relief refused
#Respondent's request for leave to make an application for extension of time
The motion had been served nearly one year earlier and there was no basis for acceding to the request; the record had been served out of time without leave
Costs
Costs of the struck-out appeal (Civil Appeal No. 96 of 2006) and costs of the motion awarded to the applicant
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.
as the record of appeal was in fact served out of time without the leave of the Court, there cannot be any valid answer to the prayer in paragraph (c) of the motion
we allow the motion with the result that Civil Appeal No. 96 of 2006 be and is hereby struck out with the costs thereof to the applicant
Issues in the judgment
#The heading describes the application as seeking to strike out 'Civil Appeal No. 17 of 2006', while the final order strikes out 'Civil Appeal No. 96 of 2006', and the file number is Civil Appli 148 of 2006 - the appeal numbers are inconsistent within the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Khan Mohammed Salim T/A Khan & Associates Advocates v National Industrial Credit Bank & 3 others [2007] KECA 386 (KLR)", Case Analysis (2007). Civil Application No. 148 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/386/eng@2007-03-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.