Mohamed v Diamond Trust Bank Kenya Ltd & another
The bottom line
#Supreme Court strikes out bank's late application for review of certification due to missed deadlines and improper filing.
What this practically means
#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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.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.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
#Whether the Originating Motion for review of certification was properly on record given the time limits and filing requirements.
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.
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.
Whether the application for leave to amend the Originating Motion could be considered in the absence of a properly filed substantive application.
The application for amendment collapsed because the substantive application for review of certification was struck out.
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
#- 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
#- 1.The Originating Motion dated 11th January 2024 and filed on 25th July 2024 be and is hereby struck out.
- 2.The Notice of Motion dated 17th July 2024 and filed 25th July 2024 be and is hereby dismissed.
- 3.No order as to costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- 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
#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
#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.
The Originating Motion dated 11th January 2024 and filed on 25th July 2024 be and is hereby struck out.
The Notice of Motion dated 17th July 2024 and filed 25th July 2024 be and is hereby dismissed.
No order as to costs.
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.
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.
Key timeline
#Practical implications
#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.
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.
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
#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
#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.