Standard Chartered Financial Services Limited v Manchester Outfitters (Suiting Division) Limited Now Called King Woolen Mills Limited & 2 others
The bottom line
#Supreme Court dismisses bank's bid to revive appeal, but leaves door open if certification is granted.
What this practically means
#Standard Chartered Bank tried to appeal a Court of Appeal ruling to the Supreme Court. It filed a notice of appeal before getting the required certification from the Court of Appeal. A single Supreme Court judge later deemed the notice withdrawn because the bank did not file the full appeal on time. The bank asked the full Supreme Court to reverse that order. The Court refused, saying the judge was not told about the pending certification request. However, if the Court of Appeal later grants certification, the bank can file a fresh notice of appeal.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the order of a single judge (Lenaola, SCJ) dated May 26, 2023, deeming the applicant's notice of appeal as withdrawn, should be reviewed and set aside.
Key legal issues
#Whether the court should review and set aside a single judge's order deeming a notice of appeal as withdrawn, where the certification motion before the Court of Appeal was still pending.
The court declined to review the order, finding that the single judge was not misdirected as the pending certification motion was not brought to his attention, and the order would not prejudice the applicant if certification is later granted.
The applicant invoked section 23(2C) of the Supreme Court Act for review of a single judge's decision. The court applied the principles from Parliamentary Service Commission v Martin Nyaga Wambora, requiring demonstration that the judge misdirected himself. The court noted that the single judge was not informed of the pending certification motion, so he cannot be faulted. However, since the certification motion is still pending, the order does not prejudice the applicant; if certification is granted, the applicant may file a fresh notice of appeal. The court therefore declined to set aside the order.
Whether section 21A of the Supreme Court Act (review in exceptional circumstances) applies to a decision of a single judge.
Section 21A is not applicable to a decision of a single judge; the proper provision for review of a single judge's decision is section 23(2C) of the Supreme Court Act.
The applicant had invoked section 21A, but the court held that this provision is not applicable in this case, citing Florence Wairimu Mbugua & another v Timber Manufacturers & Dealers Limited. The court instead considered the application under section 23(2C), which specifically provides for review of a decision of a single judge by five or more judges.
Legal principles established
#- To review a single judge's decision, you must show the judge was clearly wrong and caused an injustice.
- A notice of appeal in a public importance case can be filed before certification is granted.
- The time to file the actual appeal starts only after certification is granted, not when the notice is filed.
- Section 21A of the Supreme Court Act does not apply to decisions of a single judge; use section 23(2C) instead.
- A court cannot be faulted for not considering facts that were not brought to its attention.
Court orders
#- 1.The amended notice of motion dated October 30, 2023 and filed on November 3, 2023 is hereby dismissed.
- 2.Each party shall bear its own costs of the motion.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Supreme Court of Kenya (single judge, Lenaola, SCJ)
- Jurisdiction invoked
- Section 23(2C) of the Supreme Court Act (review of a single judge's decision)
Relief refused
#Review and setting aside of the order dated May 26, 2023 withdrawing the applicant's notice of appeal
The applicant did not demonstrate that the single judge misdirected himself in the exercise of discretion; the order will not prejudice the applicant if certification is later granted.
Costs
Each party shall bear its own costs of the motion.
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.
The amended notice of motion dated October 30, 2023 and filed on November 3, 2023 is hereby dismissed.
Each party shall bear its own costs of the motion.
We note that at the time the learned judge issued the order of May 26, 2023, the foregoing was not brought to the attention of the court. Thus, the learned judge cannot be faulted for deeming the notice of appeal as withdrawn.
In lodging an appeal on a matter of general public importance, it shall not be mandatory to obtain such certification before filing the notice of appeal.
Key timeline
#Practical implications
#Review threshold clarified for single judge orders
When seeking review of a single Supreme Court judge's decision under section 23(2C), you must prove the judge misdirected themselves, leading to a wrong decision or apparent injustice. Simply invoking section 21A is insufficient. Ensure all pending motions (like certification) are disclosed to the single judge to avoid adverse orders based on incomplete information.
Appeal timelines depend on certification status
If your business is involved in a Supreme Court appeal on a matter of general public importance, remember: you can file a notice of appeal before getting certification from the Court of Appeal. But the 30-day clock for filing the full appeal starts only after certification is granted. Missing this nuance can lead to your appeal being deemed withdrawn, as happened here.
Court won't punish you for undisclosed facts
If you have a pending application (like certification) that affects your case, tell the judge. The Supreme Court ruled that a judge cannot be blamed for making a decision without knowing about a related pending motion. If you later get certification, you can start the appeal process fresh—so all is not lost, but you must act promptly.
Frequently asked questions
#Can I appeal to the Supreme Court in Kenya without certification from the Court of Appeal?+
Yes, you can file a notice of appeal before getting certification if your case involves a matter of general public importance. However, you must still obtain certification later, and the time to file the full appeal starts only after certification is granted.
What happens if my notice of appeal is deemed withdrawn in Kenya?+
If a judge deems your notice withdrawn, you can ask the full Supreme Court to review that decision. You must show the judge was clearly wrong and that you suffered an injustice. If you have a pending certification motion, the court may allow you to file a fresh notice once certification is granted.
How do I review a single Supreme Court judge's decision in Kenya?+
Use section 23(2C) of the Supreme Court Act, not section 21A. You need to convince five or more judges that the single judge misdirected themselves, leading to a wrong decision or apparent injustice. The court will not overturn the order just because you disagree with it.
What is the deadline to file a Supreme Court appeal in Kenya after certification?+
Under rule 38(1)(b) of the Supreme Court Rules, you have 30 days from the date certification is granted to file the full appeal. If you filed a notice of appeal earlier, that notice may be deemed withdrawn if you miss this deadline without a valid reason.
Cite this brief
#Cite this brief
Caselaw, "Standard Chartered Financial Services Limited v Manchester Outfitters (Suiting Division) Limited Now Called King Woolen Mills Limited & 2 others", Case Analysis (2023). Application E020 of 2023. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2023/110/eng@2023-12-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.