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Court of AppealDismissedCivil Application No. Nai. 246 of 2010

MAX INTERNATIONAL CO. LTD v BRUNO PEZZOTTA [2011] KECA 348 (KLR)

Court of Appeal
4 March 2011
SBS. E. O. BosireEGE. M. GithinjiAVAlnashir Visram
564 words in judgment
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The bottom line

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Kenya's Court of Appeal allowed a late-served notice of appeal to stand because a reasonable explanation was given and no one was prejudiced.

What this practically means

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Executive summary

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This was an interlocutory application before the Court of Appeal at Mombasa by Max International Co. Ltd, the respondent in an intended appeal, seeking under Rules 80 and 42 of the Court of Appeal Rules the striking out of Bruno Pezzotta's notice of appeal on the ground that it was served out of time contrary to Rule 76(1). The facts were undisputed: the notice was lodged at the superior court registry on 27th July 2010 within the fourteen-day period after delivery of the High Court judgment in H.C.C.C. No. 72 of 2007, but was not served until 23rd September 2010, a delay of almost two months. Respondent's counsel attributed the delay to oversight and confusion in his office. The applicant's counsel could not demonstrate any prejudice suffered from the omission. A single judgment of the court, delivered by Bosire, Githinji and Visram, JJ.A, deprecated non-compliance with the Rules but held that a reasonable explanation had been offered, and that it was fortified by the newly enacted sections 3A and 3B of the Appellate Jurisdiction Act embodying the overriding objective of just, expeditious, proportionate and affordable resolution of appeals. Allowing the application would have been contrary to those objectives. The motion dated 8th October 2010 was dismissed, the notice of appeal was deemed properly served, and costs of the application were awarded to the respondent (appellant in the intended appeal).

Questions the Court framed

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

  1. 1.Whether a notice of appeal served out of time, contrary to Rule 76(1) of the Court of Appeal Rules, should be struck out where the appellant offers a reasonable explanation and no prejudice is shown

Key legal issues

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01

Whether delayed service of a notice of appeal under Rule 76(1) must result in striking out the notice

Holding

No. The court has discretion to excuse the omission where a reasonable explanation is given and no prejudice is shown, and the overriding objective counsels against striking out.

Reasoning

The facts were undisputed: the notice was lodged within fourteen days but served almost two months late due to oversight and confusion in counsel's office. The applicant's counsel could not demonstrate any prejudice suffered. Although the court deprecated non-compliance with the Rules, it found the explanation reasonable and was fortified by sections 3A and 3B of the Appellate Jurisdiction Act, which require the court to seek just, expeditious, proportionate and affordable resolution of appeals. Allowing the application would defeat that overriding objective, so the notice of appeal was deemed properly served and the application dismissed.

p. 1

Legal principles established

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  • Where a notice of appeal is served out of time but the defaulting party offers a reasonable explanation and no prejudice is demonstrated by the other side, the Court of Appeal may excuse the non-compliance rather than strike out the notice, applying the overriding objective in sections 3A and 3B of the Appellate Jurisdiction Act.
  • In exercising its procedural powers, the Court must be guided by the overriding objective of facilitating the just, expeditious, proportionate and affordable resolution of appeals.

Court orders

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  1. 1.The notice of motion dated 8th October, 2010 is dismissed
  2. 2.The notice of appeal is deemed as properly served upon the respondent
  3. 3.Costs of the application shall be paid by the respondent (appellant in the appeal)

The bench

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

SB
majority
EG
majority
AV
majority
On appeal from
High Court of Kenya at Malindi
H.C.C.C. No. 72 of 2007
Jurisdiction invoked
Rules 80 and 42 of the Court of Appeal Rules; sections 3A and 3B of the Appellate Jurisdiction Act

Relief refused

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Striking out of the notice of appeal

The applicant did not demonstrate any prejudice and the respondent offered a reasonable explanation for the delayed service; striking out would be contrary to the overriding objective

p. 2

Costs

The costs of the application shall be paid by the respondent (appellant in the appeal).

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.

Mr. Ayub Muhuni, learned counsel for the applicant, has not demonstrated to us what prejudice, if any, his client has suffered because of this omission.
p. 1absence of prejudice as a factor in excusing procedural default
Although we deprecate non-compliance with the Rules, we are of the view that in this case the respondent has offered a reasonable explanation for the omission, and we are minded to excuse the error.
p. 1reasonable explanation excuses late service of notice of appeal
Accordingly, the notice of motion dated 8th October, 2010 is hereby dismissed. The notice of appeal is deemed as properly served upon the respondent.
p. 2final orders

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "MAX INTERNATIONAL CO. LTD v BRUNO PEZZOTTA [2011] KECA 348 (KLR)", Case Analysis (2011). Civil Application No. Nai. 246 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/348/eng@2011-03-04

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