John Benjamin Wanyama v Kenya Commercial Bank
The bottom line
#Kenya's Court of Appeal struck out KCB's notice of appeal because the bank never served it on the other side, proving procedural rules carry real consequences.
What this practically means
#Executive summary
#Key legal issues
#Service of the notice of appeal under Rule 77(1)
It was not in dispute that the notice was lodged in time, but there was nothing to show it was served on the applicant, and the respondent's claim that the applicant refused service was unsupported by any affidavit of service.
Rule 77(1) requires an intended appellant to serve copies of the notice of appeal on all persons directly affected before or within seven days of lodging it. The respondent asserted the applicant refused service but conceded there was no affidavit of service on record. The court therefore found non-compliance with Rule 77(1) on the face of the record, one of the missteps justifying striking out the notice.
Reliance on the proviso to Rule 82(1) for extension of time to file the record of appeal
The respondent could not benefit from the proviso because it conceded that its letter applying for certified proceedings, though addressed to the Deputy Registrar, was not copied or served on the applicant as the rules require.
Rule 82 requires the record of appeal to be filed within sixty days of lodging the notice, with time for preparing proceedings excludable if an application for copies has been made. Citing its earlier decision in James Mayaka Mong'are, the court held that the proviso is only available where the application for proceedings was in writing and served on the respondent. The objective is to prevent a party from fabricating a timely request, and the requirement cannot be dismissed as a procedural technicality under Article 159(2)(d).
Striking out the notice of appeal under Rule 84
Given the cumulative failures to comply with Rules 77 and 82, the court invoked Rule 84 and struck out the notice of appeal lodged on 24th June 2015.
Rule 84 permits a person affected by an appeal to apply to strike out a notice of appeal on the ground that some essential step in the proceedings has not been taken or has not been taken within the prescribed time. The court found several missteps in initiating the appeal and applied Rule 84, rejecting the respondent's submission that the application was premature.
Legal principles established
#- An intended appellant must serve the notice of appeal on all persons directly affected before or within seven days of lodging it; failure to serve is a misstep that exposes the notice to being struck out.
- An appellant cannot rely on the proviso to Rule 82(1) to exclude time for preparation of proceedings unless the application for proceedings was in writing and a copy was served on the respondent; the requirement is not a mere procedural technicality.
Court orders
#- 1.The notice of appeal lodged on 24th June 2015 is struck out
- 2.The respondent shall pay the applicant's costs of the application
- On appeal from
- High Court of Kenya at Kakamega
- HCCC No. 97 of 1999
- Jurisdiction invoked
- Rules 77(1), 82 and 84 of the Court of Appeal Rules (application to strike out a notice of appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Benjamin Wanyama v Kenya Commercial Bank", Case Analysis (2016). Civil Application No. 35 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/236/eng@2016-10-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.