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Supreme CourtStruck OutApplication E001 of 2024

Mohamed v Diamond Trust Bank Kenya Ltd & another

Supreme Court of Kenya
29 November 2024
2,146 words in judgment
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The bottom line

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Supreme Court strikes out bank's late application for review of certification due to missed deadlines and improper filing.

What this practically means

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The Supreme Court of Kenya struck out Diamond Trust Bank's application to review a Court of Appeal decision because it was filed seven months late. The bank also failed to submit printed and electronic copies at the same time as required. The Court emphasized that strict compliance with time limits and filing rules is mandatory. The bank did not ask for more time or explain the delay.

Executive summary

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This ruling by the Supreme Court of Kenya (a five-judge bench) disposes of two applications filed by Diamond Trust Bank Limited (the applicant). The first was an Originating Motion dated 11th January 2024 seeking review of the Court of Appeal's decision of 8th December 2023 that declined to certify the applicant's intended appeal as one raising matters of general public importance. The second was a Notice of Motion dated 17th July 2024 seeking leave to amend the Originating Motion. The Court first examined whether the Originating Motion was properly on record. It noted that under Rule 33(2) of the Supreme Court Rules, an application for review of certification must be filed within fourteen days. The impugned ruling was delivered on 8th December 2023, making the last day for filing 22nd December 2023. The applicant's Originating Motion was dated 11th January 2024, filed electronically on 17th January 2024, and the physical copy was presented on 25th July 2024—about seven months late. The applicant did not seek leave to extend time or explain the delay. Additionally, under Rule 12(1) of the Supreme Court Rules, as interpreted in Sonko v Clerk, County Assembly of Nairobi City & 11 others, filing is complete only when both printed and electronic copies are submitted simultaneously. Here, the printed copy was filed six months after the electronic copy, so the pleading was not properly filed. Consequently, the Court struck out the Originating Motion on its own motion. Since the substantive application was struck out, the application for amendment collapsed and was dismissed. The Court made no order as to costs, noting that costs follow the event but that each party should bear its own costs to avoid protracting the dispute further.

Questions the Court framed

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

  1. 1.Whether the applicant is entitled to leave to appeal to the Supreme Court following the dismissal of its appeal from the decision of the Court of Appeal at Mombasa dated 14th April 2023 on account of the intended appeal being one which raises a matter of general public importance.
  2. 2.Whether on the facts and circumstances set out in the application and supporting material, a substantial miscarriage of justice would occur if the applicant were forever locked out of the appellate process and the question posed by the intended appeal left unaddressed.
  3. 3.Whether the decision of the Court of Appeal dated 8th December, 2023 refusing certification of the matter before it as one of general public importance should be reviewed.

Key legal issues

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01

Whether the Originating Motion for review of certification was properly on record given the time limits and filing requirements.

Holding

The Originating Motion was not properly on record because it was filed out of time (beyond the 14-day period under Rule 33(2)) and without compliance with Rule 12(1) requiring simultaneous filing of printed and electronic copies.

Reasoning

The Court noted that the impugned ruling was delivered on 8th December 2023, making the last day for filing an application for review 22nd December 2023. The applicant's Originating Motion was dated 11th January 2024 and the electronic copy was filed on 17th January 2024, with the physical copy presented on 25th July 2024. The applicant did not seek leave to extend time or explain the inordinate delay. Additionally, under Rule 12(1) as interpreted in Sonko v Clerk, County Assembly of Nairobi City & 11 others, the printed and electronic copies must be filed simultaneously; here they were not, so the pleading was not properly filed.

02

Whether the application for leave to amend the Originating Motion could be considered in the absence of a properly filed substantive application.

Holding

The application for amendment collapsed because the substantive application for review of certification was struck out.

Reasoning

The Court found that since the Originating Motion (the substantive application) was struck out for being improperly on record, the Notice of Motion seeking to amend it had no foundation and was accordingly dismissed.

Legal principles established

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  • Applications for review of certification must be filed within 14 days of the ruling.
  • Failure to meet the deadline requires a prior application for extension of time.
  • Filing in the Supreme Court requires simultaneous submission of printed and electronic copies.
  • If the substantive application is struck out, any related amendment application also fails.
  • The Court can strike out an improperly filed application on its own motion.
  • Costs may be waived to avoid protracting disputes.

Court orders

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  1. 1.The Originating Motion dated 11th January 2024 and filed on 25th July 2024 be and is hereby struck out.
  2. 2.The Notice of Motion dated 17th July 2024 and filed 25th July 2024 be and is hereby dismissed.
  3. 3.No order as to costs.

The bench

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

Martha Karambu Koome
M. K. KoomeCJ
Currently serving
majority

Wrote the judgment

Philomena Mbete Mwilu
P. M. MwiluDCJ
Currently serving
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
On appeal from
Court of Appeal at Mombasa
Civil Appeal No. E074 of 2021
Jurisdiction invoked
Article 163(4)(b) and (5) of the Constitution; Sections 15(1) & 16(2) of the Supreme Court Act, 2011

Relief refused

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Review of the Court of Appeal decision declining certification

The Originating Motion was not properly on record as it was filed out of time without leave and without compliance with Rule 12 of the Supreme Court Rules.

Leave to amend the Originating Motion

The application for amendment collapsed in the absence of the substantive application for review of certification.

Costs

No order as to 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.

we find that the Originating Motion dated 11th January 2024 is not properly on record and ought to be struck out.
p. 4 Procedural compliance with filing rules
The Originating Motion dated 11th January 2024 and filed on 25th July 2024 be and is hereby struck out.
p. 5 Final orders
The Notice of Motion dated 17th July 2024 and filed 25th July 2024 be and is hereby dismissed.
p. 5 Final orders
No order as to costs.
p. 5 Costs order
Where the law provides for a timeframe within which something ought to be filed, and that time lapses, a party needs to first to apply for extension of that time under Rule 4 of this Court's Rues before proceeding.
p. 4 Extension of time requirement
filing of any pleading is considered complete under Rule 12(1) of the Supreme Court Rules when a party submits pleadings and documents in both printed and electronic form, failing of which the pleadings will not be considered as properly filed.
p. 4 Filing requirements under Rule 12

Key timeline

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2023-12-08
Court of Appeal declines to certify appeal as matter of general public importance.
2023-12-22
Last day for applicant to file review application (14 days after ruling).
2024-01-11
Applicant dates Originating Motion for review.
2024-01-17
Applicant files electronic copy of motion.
2024-07-25
Applicant files physical copy of motion.
2024
Supreme Court strikes out motion and dismisses amendment application.

Practical implications

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For lawyers

Strict compliance with Supreme Court Rules

Ensure all Supreme Court applications are filed within prescribed time limits. For review of certification, you have 14 days. If you miss it, first apply for extension of time under Rule 4. Also, file printed and electronic copies simultaneously. Failure to do either can result in the application being struck out on the Court's own motion.

For businesses

Act quickly on appeals

If your business intends to appeal a Court of Appeal decision to the Supreme Court on grounds of general public importance, note that the certification review application must be filed within 14 days. Missing this deadline without seeking an extension can end your appeal. Also ensure your legal team files both paper and electronic copies at the same time.

For individuals

Follow court deadlines strictly

If you are involved in a case that reaches the Supreme Court, you must follow all filing deadlines and rules exactly. For example, an application for review of a certification decision must be filed within 14 days. Also, you must submit both printed and electronic copies together. Missing these steps can get your case thrown out.

Frequently asked questions

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What is the time limit for filing a review of certification in the Supreme Court of Kenya?+

Under Rule 33(2) of the Supreme Court Rules, an application for review of a Court of Appeal decision declining certification must be filed within 14 days from the date of that decision.

What happens if you file a Supreme Court application late in Kenya?+

If you file late, the Court may strike out your application. You must first apply for extension of time under Rule 4 of the Supreme Court Rules, explaining the delay. Without that, your application will not be considered.

What are the filing requirements for Supreme Court pleadings in Kenya?+

Under Rule 12(1), you must submit both printed and electronic copies of your pleadings simultaneously. If you file them separately, the pleading is not considered properly filed and may be struck out.

Can you amend a struck out application in the Supreme Court of Kenya?+

No. If the main application is struck out for being improperly filed, any application to amend it also collapses because there is no substantive application to amend.

Cite this brief

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Cite this brief

Caselaw, "Mohamed v Diamond Trust Bank Kenya Ltd & another", Case Analysis (2024). Application E001 of 2024. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2024/71/eng@2024-11-29

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