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Court of AppealOtherCivil Application No. Nai 85 of 2014

Pickwell Properties Limited v Kenya Commercial Bank [2016] KECA 786 (KLR)

Court of Appeal
12 February 2016
3,651 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal struck out a property company's attempt to kill a bank's appeal because the company waited over a year past the 30-day deadline.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Githinji, G.B.M. Kariuki and Mwilu, JJ.A.) on Pickwell Properties Limited's notice of motion seeking to strike out Kenya Commercial Bank's notice of appeal against a High Court judgment (Ogolla, J., 20th March 2013 in H.C.C.C 544 of 2011) awarding the landlord unpaid rent of Shs.32,113,291 plus interest. Pickwell argued that because the High Court case was determined on pleadings and written submissions, the bank could not rely on the proviso to rule 84 to excuse delay, and that the record of appeal should have been lodged within 60 days of the proceedings being ready. The bank relied on a certificate of delay showing the registry took 613 days (25th March 2013 to 5th November 2014) to prepare the proceedings, during which the court file went missing and had to be reconstructed, and pointed to its pending application for extension of time. The court held the certificate of delay was unchallenged and entitled the bank to exclude that period, but dispositive of the motion was the proviso to rule 84, which bars striking-out applications brought more than thirty days after service of the notice of appeal. Pickwell was served in March 2013 and applied only in April 2014, so the application was incompetent. The court struck out the motion itself and ordered each party to bear its own costs, leaving the bank's extension-of-time application to be determined on its own merits. This ruling binds subordinate courts and the High Court on the mandatory 30-day limit in the proviso to rule 84 and on the exclusion of registry delay evidenced by an unchallenged certificate of delay.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the application to strike out the notice of appeal was brought within the time frame set by the proviso to rule 84 of the Court of Appeal Rules
  2. 2.If so, whether the application has merit, regard being had to the evidence in the affidavits and the circumstances of the case

Key legal issues

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01

Whether the application to strike out the notice of appeal was competent given the 30-day limit in the proviso to rule 84

Holding

The application was incompetent because it was brought long after the 30 days from service of the notice of appeal had expired; the applicant did not contest service in March 2013.

Reasoning

The court reproduced rule 84 and its proviso, which bars striking-out applications brought more than 30 days after service of the notice of appeal or record of appeal. The applicant admitted service way back in March 2013 and filed the application only in April 2014. The time limit having long expired, the application did not lie and its purported basis was absent, leaving the court no alternative but to strike out the motion itself.

p. 6
02

Whether the respondent's delay in filing the record of appeal was excusable by virtue of the certificate of delay and the proviso to rule 84

Holding

The unchallenged certificate of delay entitled the respondent to exclude the 613 days taken by the registry to prepare and deliver the proceedings and judgment; the 60-day period ran from 8th November 2014 and expired on 8th January 2015.

Reasoning

The Deputy Registrar certified that preparation and delivery of certified proceedings took from 25th March 2013 to 5th November 2014 (613 days). The certificate was not challenged. The court held the respondent could not be blamed for registry tardiness and that the excluded period meant the record was due by 8th January 2015. Whether the respondent's further delay is excused is a matter for the pending extension-of-time application, on which the court refrained from commenting.

p. 5

Legal principles established

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  • An application to strike out a notice of appeal or record of appeal cannot be brought after the expiry of thirty days from the date of service of the notice of appeal or record of appeal; an application brought outside that window is incompetent and the court has no discretion to entertain it.
  • Time shown in an unchallenged certificate of delay as required by the Deputy Registrar for preparation and delivery of certified proceedings and judgment is excluded in computing the 60-day period for lodging the record of appeal under the proviso to rule 84.

Court orders

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  1. 1.The notice of motion dated 9th April 2014 (application to strike out the notice of appeal) is struck out
  2. 2.Each party shall bear its own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority

Wrote the judgment

Philomena Mbete Mwilu
P. M. MwiluJA
Currently serving
majority

Wrote the judgment

On appeal from
High Court of Kenya at Nairobi
H.C.C.C 544 of 2011
Jurisdiction invoked
Inherent appellate jurisdiction and the Court of Appeal Rules (rule 84 proviso); Appellate Jurisdiction Act sections 3A and 3B referred to by counsel

Relief refused

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Striking out of the respondent's Notice of Appeal dated 21 March 2013

The application to strike out was brought far outside the 30-day limit in the proviso to rule 84 and was therefore incompetent

p. 6

Costs

Each party shall bear its own costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Provided that an application to strike out a notice of appeal or an appeal shall not be brought after the expiry of thirty days from the date of service of the notice of appeal or record of appeal as the case may be.
p. 6Rule 84 proviso - time limit for striking-out applications
In the circumstances, we have no alternative but to strike out the notice of motion dated 9th March 2014 which we hereby do. We order that each party shall bear its own costs.
p. 6Final orders - striking out the incompetent motion
The certificate of delay in this case shows that the respondent is entitled to have excluded in the computation of the period for lodging appeal, by dint of the proviso to rule 84 of this Court's Rules, the period shown in the certificate of delay as having been necessary for the preparation and delivery of the judgment and the proceedings
p. 5Exclusion of registry delay in computing the 60-day period
whether or not he satisfies the court that extension of time is merited to file the record after 60 days is a matter for the court that shall hear the application.
p. 5Extension of time left to the pending application

Issues in the judgment

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minor

The date of the notice of motion is given inconsistently in the judgment: paragraph 1 describes it as dated 9th April 2014, while the final order refers to a notice of motion dated 9th March 2014.

minor

The judgment inconsistently records the date the respondent received the letter intimating that proceedings were ready: paragraph 14 states 23rd August 2013 while paragraph 12 states 23rd April 2014.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Pickwell Properties Limited v Kenya Commercial Bank [2016] KECA 786 (KLR)", Case Analysis (2016). Civil Application No. Nai 85 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/786/eng@2016-02-12

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.