1.The respondent/applicant, Pabari Investments Limited, by its application dated 20th December 2021 seeks orders that the Record of Appeal filed herein by the appellant/respondent Absa Bank Mauritius Limited, be struck out for failure to take essential steps. In the alternative, an order is sought for grounds 1 & 2 of the Memorandum of Appeal dated 16th December 2021 be struck out. The application is made under Section 3A & 3B of the Appellate Jurisdiction Act and Rule 84 of the Court of Appeal Rules, 2010.
2.Urging the application before us, learned counsel for the applicant Mr. B. Kongere in highlighting his written submissions dated 4th November 2022 referred to the supporting affidavit sworn by Benson Musili, Group Head of Legal Department of the applicant in which it is deponed that the record of appeal was served on 17th December 2021; that the appeal, which challenges a ruling of the High Court delivered on 30th July 2021, ought to have been filed within 60 days from 20th September 2021 when the Certificate of Delay was collected but was filed on 20th November 2021, some 26 days late, without leave of court. It was also urged that the record does not contain a certified copy of the order appealed from and should be struck out.
3.It was submitted, on the strength of the decision of this Court in NCBA Bank Kenya PLC vs. Jampen Enterprises Ltd, Mbsa C.Applic No. 11 of 2020 that the timelines stipulated in the rules are indispensable for the proper adjudication of appeals and command obedience; that it is admitted that the record of appeal is filed out of time and the explanation that the advocate for the appellant held an erroneous view of the law is not supported; and that the existence of an application for extension of time cannot save the record of appeal from being struck out.
4.Opposing the application, Mr. Ndungu, learned counsel for the appellant referred to a replying affidavit sworn by Koomen Robin Veeren Chetty, the Business Support and Corporate Recoveries Manager of the appellant in which he deposes that the appellant’s advocates “erroneously projected the deadline for the filing of the record of appeal; that in realization of that mistake, the appellant has accordingly applied, by application dated 29th December 2021 for extension of time, which application is pending hearing and determination before the Court.”
5.As for the missing court order, it was urged that a supplementary record of appeal has since been filed. In relation to the alternative prayer for the striking out of grounds 1&2 of the Memorandum of Appeal, it was submitted that those grounds simply challenge the factual findings by the Judge in paragraph 38 of the impugned ruling and not the resultant orders.
7.It is conceded in the present case, that the record of appeal was filed out of time. There is therefore noncompliance with the rules by the appellant and in that regard, it was stated that there is a pending application seeking extension of time. There is accordingly, merit in the application for striking out the record of appeal. The order that commends itself to us in the circumstances is to allow the application and order that the record of appeal filed herein be struck out but suspend the order pending the hearing and determination of the pending application for extension of time dated 29th December 2021.
8.As for the alternative prayer for striking out grounds 1 & 2 of the memorandum of appeal, we think that is a substantive and contentious matter that does not lie within the purview of Rule 84. As this Court stated in Nakumatt Holding Limited and another vs. Ideal Locations Limited  eKLR:
9.In conclusion, therefore, we allow prayer 1 of the application dated 20th December 2021 and order that the record of appeal filed herein be struck out. We however suspend that order pending the hearing and determination of the pending application for extension of time dated 29th December 2021. For the avoidance of doubt, the record of appeal will stand struck out in the event that the appellant’s application for extension of time dated 29th December 2021 is disallowed.
10.We award the costs of this application to the applicant in any event.