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Court of AppealPartially AllowedCivil Application No. 281 of 2011· [2013] KECA 414 (KLR)

Wamuhu Maina Damaiyo v Gateway Insurance Company Limited [2013] KECA 414 (KLR)

Court of Appeal of Kenya
24 January 2013
OOOnyango OtienoVIVisramOKOkwengu
1,132 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out an insurer's dormant appeal, confirming that the 'overriding objective' cannot excuse missing the Rules' deadlines.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Mombasa delivered by Visram, JA, with Onyango Otieno, JA concurring, under Rule 32(3) as Okwengu, JA was abroad. The applicant, administratrix of the estate of Gabriel Maina, sought an order under Rule 83 of the Court of Appeal Rules that the respondent insurer's notice of appeal, filed on 28th May 2009 against the dismissal of its first appeal in the High Court, be deemed withdrawn. The background was a fatal motor vehicle accident in which the estate obtained judgment against the insurer after failing to recover damages from the vehicle's owner; the insurer's first appeal to the High Court failed. Although the High Court proceedings were typed and certified on 21st May 2010 and the applicant's advocate notified the respondent on 1st June 2010 that they were ready, the respondent took no step to file the record of appeal and did not even file a replying affidavit to the application. Counsel for the respondent relied only on sections 3A and 3B of the Appellate Jurisdiction Act, urging the court not to defeat the claim on mere technicality. The court rejected this, holding that the omission went to the root of the Rules - the obligation to observe time frames - and that invoking the overriding objective in total disregard of the time lines would set a dangerous precedent. Following Hunter Trading Company Ltd v Elf Oil Kenya Limited, City Chemist v Oriental Commercial Bank Ltd and Mradura Suresh Kantari v Suresh Nanalal Kantaria, the court held the overriding objective is not a panacea and must rest on sound judicial foundations. The notice of appeal was struck out with costs to the applicant.

Key legal issues

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01

Whether the notice of appeal should be struck out for failure to file the record of appeal within the appointed time

Holding

Yes; the notice of appeal dated 28th May 2009 was struck out.

Reasoning

The respondent filed a notice of appeal on 28th May 2009 but took no step to institute the appeal even after the proceedings were typed and certified on 21st May 2010 and the applicant's advocate notified it by letter dated 1st June 2010 that the proceedings were ready. The facts were undisputed and the respondent filed no replying affidavit. The omission went to the root of the Rules concerning observance of time frames, and the overriding objective could not be used to override them.

p. 1
02

Whether sections 3A and 3B of the Appellate Jurisdiction Act justify excusing non-compliance with the Rules' time lines

Holding

No; those provisions were not meant to be invoked in total disregard of the time lines in the Rules, and doing so would set a dangerous precedent.

Reasoning

The court, relying on Hunter Trading Company Ltd v Elf Oil Kenya Limited, City Chemist v Oriental Commercial Bank Ltd and Mradura Suresh Kantari v Suresh Nanalal Kantaria, held that the overriding objective enriches established principles rather than uprooting them, must be exercised on a sound judicial foundation to avoid arbitrariness and uncertainty, and is not a panacea for all ills. Ignoring the time frames would produce utter confusion in the court corridors.

p. 2

Legal principles established

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  • The overriding objective (sections 3A and 3B of the Appellate Jurisdiction Act) cannot be invoked to excuse non-compliance with the time frames in the Court of Appeal Rules; parties must observe those time frames when advancing their cases.
  • The exercise of the overriding objective power must avoid arbitrariness and uncertainty and must rest on sound judicial foundations; improperly invoked, it can become an unruly horse.
  • A party who files a notice of appeal but takes no step to file the record of appeal after proceedings are ready, despite notice, risks the notice of appeal being struck out.

Court orders

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  1. 1.The notice of appeal dated 28th May 2009 in Civil Appeal No. 83 of 2008 is struck out
  2. 2.Costs of the application awarded to the applicant (respondent in the appeal)

Authorities

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Legislation

  • Court of Appeal RulesRule 83
  • Court of Appeal RulesRule 32(3)
  • Appellate Jurisdiction Actsection 3A
  • Appellate Jurisdiction Actsection 3B

Cases cited (3)

  • Hunter Trading Company Ltd vs. Elf Oil Kenya Limited
    Civil Application No. Nai. 6 of 2010
  • City Chemist (Nrb) & Another vs. Oriental Commercial Bank Ltd
    Civil Application No. Nai. 302 of 2008 (UR. 199/2008)
  • Mradura Suresh Kantari vs. Suresh Nanalal Kantaria
    Civil Appeal No. 277 of 205 (unreported)
On appeal from
High Court of Kenya at Mombasa
Civil Appeal No. 83 of 2008
Jurisdiction invoked
Rule 83 of the Court of Appeal Rules; sections 3A and 3B of the Appellate Jurisdiction Act raised by the respondent

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, "Wamuhu Maina Damaiyo v Gateway Insurance Company Limited [2013] KECA 414 (KLR)", Case Analysis (2013). Civil Application No. 281 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/414/eng@2013-01-24

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