Mburu & 5 others v Barclays Bank of Kenya Limited [2024] KECA 366 (KLR)

Mburu & 5 others v Barclays Bank of Kenya Limited (Civil Application Sup 22 of 2019) [2024] KECA 366 (KLR) (12 April 2024) (Ruling)

Neutral citation: [2024] KECA 366 (KLR)

Republic of Kenya

In the Court of Appeal at Nairobi

Civil Application Sup 22 of 2019

DK Musinga, SG Kairu & M Ngugi, JJA

April 12, 2024

Between

Alice Nduta Mburu

1st Applicant

Alice Nduta Kimani

2nd Applicant

Andrew Kibe

3rd Applicant

Juliet Njeri

4th Applicant

Florence Wanjiku Kinyanjui

5th Applicant

Ancalo Limited

6th Applicant

and

Barclays Bank of Kenya Limited

Respondent

(An application for Leave to Appeal from the Judgment and Decree of the Court of Appeal of Kenya at Nairobi (Waki,Nambuye & Murgor, JJ.A.) delivered on 20th September 2019inCivil Appeal No. 164 of 2018)

Ruling

1. The applicant’s notice of motion dated 18th November 2019 seeks certification and leave to appeal to the Supreme Court from the decision of this Court (Waki, Nambuye & Murgor, JJ.A.) in Civil Appeal No. 164 of 2018 that was delivered on 20th September 2019.

2. The premise of the applicant’s appeal that was dismissed by this Court was that the High Court erred in failing to find that a mareva injunction was wrongfully sought and granted against the applicants, and that as a consequence they were entitled to compensation by way of damages.

3. The applicants contended that their intended appeal raises a point of law of general public importance, and urged this Court to so certify and grant leave to appeal as sought.

4. At the hearing of the application there was no attendance by the applicants’ advocates, M/s Kimandu & Ndegwa, but they had filed submissions that are dated 4th November 2023, which we considered.

5. The respondent, through M/s Mohammed Muigai LLP, opposed the application. They filed submissions on 23rd February 2024, which were briefly highlighted by their learned counsel, Mr. Angwenyi. Counsel submitted, inter alia, that the application is incompetent as it was filed outside the stipulated period under rule 42 (b) of this Court’s Rules, which requires that such an application be made within fourteen (14) days of the impugned decision.

6. Rule 42 states as follows:“42. Where no appeal lies unless the superior court certifies that a point of law of general public importance is involved, an application for such a certificate may be made-

a.informally, at the time when the decision against which it is desired to appeal is given; orb.by motion or chamber summons according to the practice of the superior court, within fourteen days after that decision.”

7. There is no dispute that the applicants filed their application on 18th November 2019. That was forty-eight (48) days after delivery of this Court’s judgment on 20th September 2019. No extension of time was granted by the Court prior to filing of the application.

8. Consequently, we find and hold that the application is incompetent, as it was filed outside the stipulated period. Having arrived at that finding, it would be superfluous to consider whether the intended appeal raises any point of general public importance.

9. The notice of motion dated 18th November 2019 is hereby struck out with costs to the respondent.

DATED AND DELIVERED AT NAIROBI THIS 12TH DAY OF APRIL, 2024. D. K. MUSINGA, (P)................................JUDGE OF APPEALS. GATEMBU KAIRU, FCIArb...............................JUDGE OF APPEALMUMBI NGUGI...............................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR