Orchid Pharmacy Limited v Southern Credit Banking Corporation Limited & 3 others
The bottom line
#Kenya's Court of Appeal struck out an entire appeal because the notice of appeal was served over four years late, without seeking an extension of time.
What this practically means
#Executive summary
#Key legal issues
#Timeliness of the application to strike out under Rule 84
The motion to strike out was filed within 30 days of service of the Notice and Record of Appeal, satisfying the proviso to Rule 84.
The Notice of Appeal was served on 14th March 2018 and the Record of Appeal on 9th March 2018. The motion was filed on 9th April 2018, within 30 days of the last service, so the threshold requirement of the proviso was met and the application was properly before the court.
Consequences of late service of the Notice and Record of Appeal
Service outside the seven-day rule without an enlargement-of-time application or satisfactory explanation means there is no valid Notice of Appeal and the appeal must be struck out.
The court held Rule 77(1) mandatory. The appellant offered only counsel's mistake, filed no affidavit from counsel explaining the delay, and never applied to enlarge time for service. Following Ratman v CumaraSamy and the Kantaria line, discretion cannot be exercised without material on which to do so; the default therefore defeated the appeal.
Whether mistake of counsel and the overriding objective excuse the default
Mistake of counsel is not automatically excused; courts will excuse it only where it affords just, expeditious disposal and counsel explains the delay, which was not done here.
Citing Tana & Athi Rivers Development Authority, the court acknowledged clients should not suffer for counsel's mistakes but stressed counsel's corresponding duty to the court and the other side. No affidavit from counsel was filed. The overriding objective requires a proper foundation, absent here, so substantive justice could not override the mandatory rules.
Legal principles established
#- Rule 77(1) of the Court of Appeal Rules is mandatory; service of the Notice of Appeal within seven days is not optional, and absent an enlargement of time there is no valid Notice of Appeal to confer jurisdiction on the Court.
- Without a valid Notice of Appeal served within the prescribed time, the Court of Appeal lacks jurisdiction to entertain the appeal.
- The overriding objective is not a panacea; a party invoking it must lay a proper and explicable foundation before the Court can exercise the discretion in its favour.
- Where an appeal is struck out, no appeal remains pending and the court will not delve into the merits of the grounds in the memorandum of appeal.
Court orders
#- 1.The Notice of Motion dated 5th April 2018 is allowed
- 2.The Notice of Appeal dated 24th September 2013 is struck out
- 3.The Record of Appeal filed on 22nd November 2013 is struck out
- 4.The appeal is struck out with costs to the 3rd respondent
- On appeal from
- High Court at Nairobi
- High Court Civil Case No. 389 of 2007
- Jurisdiction invoked
- There was no valid Notice of Appeal on record; the court found it lacked the requisite jurisdiction to entertain the appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Orchid Pharmacy Limited v Southern Credit Banking Corporation Limited & 3 others", Case Analysis (2018). Civil Appeal No. 322 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/163/eng@2018-11-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.