Ufanisi Freighters (K) Limited v I & M Bank Limited & 3 others (Civil Application E033 of 2023) [2025] KECA 296 (KLR)
The bottom line
#Kenya's Court of Appeal struck out a bank's appeal because it served its Notice of Appeal 42 days late without explaining the delay.
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 1st respondent failed to take the essential steps of serving the Notice of Appeal and the letter requesting proceedings within the prescribed time
- 2.Whether the unexplained delay of 42 days in service warrants striking out the Notice of Appeal
Key legal issues
#Whether failure to serve a Notice of Appeal and letter requesting proceedings within the prescribed time is a fatal defect
Yes, where the delay is unexplained; the court struck out the Notice of Appeal served 42 days out of time
Rules 79(1) and 84(1) use the word 'shall' and are mandatory. The Notice of Appeal was lodged in time (a day after judgment), but service occurred 42 days after lodging. The blame attributed to the Deputy Registrar was unsupported, as the documents were signed on 3rd March 2023. The delay remained unexplained, and the pendency of a separate extension-of-time application did not save the notice.
Whether the court's discretion could be exercised in favour of the defaulting appellant
No; lack of good faith and an unexplained delay defeated the discretion
The court found it difficult to see good faith or seriousness in prosecuting the appeal. The 1st respondent shifted blame to the superior court's Deputy Registrar, which the record did not support. Although an extension-of-time application existed, the applicant was not served with the appeal and the extension application was filed after the instant striking-out application.
Legal principles established
#- Rules 79(1) and 84(1) of the Court of Appeal Rules are mandatory and a party must comply with the prescribed periods for service of a notice of appeal and letter requesting proceedings
Court orders
#- 1.The Notice of Appeal dated 3rd March 2023 be and is hereby struck out
- 2.Costs of this application shall be borne by the 1st respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Mombasa
- HCCA No. 144 of 2021 - I & M Bank Limited vs. Ufanisi Freighters (K) Limited & 2 Others
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act and rules 79(1), 84 and 86 of the Court of Appeal Rules, 2022
Relief refused
#1st respondent's plea to sustain the appeal despite late service, on grounds of no prejudice and pending extension-of-time application
The delay of 42 days in service was unexplained; the court declined to exercise discretion in the 1st respondent's favour
Costs
Costs of this application shall be borne by the 1st respondent.
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.
Rules 79(1) and 84(1) are couched in mandatory terms by use of the word 'shall.' Therefore, a party must comply with the mandatory procedure stipulated therein.
The Notice of Appeal and the letter requesting the proceedings were served upon the applicant on 13th April 2023, which is 42 days outside the time when they were lodged in the superior court. This delay remained unexplained by the 1st respondent.
we find merit in the Notice of Motion dated 29th April 2023 and hereby order that the Notice of Appeal dated 3rd March 2023 be and is hereby struck out. Costs of this application shall be borne by the 1st respondent.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Magnoy Communications Ltd v Absa Bank Kenya PLC & another (Civil Application E477 of 2025) [2026] KECA 705 (KLR)[2026] KECA 705 (KLR)25 Mar 2026
Cite this brief
#Cite this brief
Caselaw, "Ufanisi Freighters (K) Limited v I & M Bank Limited & 3 others (Civil Application E033 of 2023) [2025] KECA 296 (KLR)", Case Analysis (2025). Civil Application No. E064 of 2023 (as arising from Mombasa HCCA No. 144 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/296/eng@2025-02-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.